Employers May Face Legal Troubles Over Facebook Snooping

Earlier today, Facebook issued a strong rebuke to employers who require that applicants disclose their account login information. In a statement posted on the company website, Chief Privacy Officer Erin Egan not only stated that the practice violates the company's terms of service, but also posited that employers could be subjecting themselves to lawsuits by demanding access to users' private updates.

"This practice undermines the privacy expectations and the security of both the user and the user’s friends," she wrote. "It also potentially exposes the employer who seeks this access to unanticipated legal liability."

Egan said that employers could be accused of discrimination if they fail to hire an applicant after seeing private information about an applicant such as his age. She also posited that most employers do not have proper protections in place to ensure that any information they find doesn't leak and warned that, if HR managers see evidence of illegal activity in the private account, they would be legally required to report it.

"I believe that in the future employers will be seeing discrimination suits, wrongful discharge suits, negligent hiring claims, and more as a result of employers checking potential employee backgrounds online," said management and organization development consultant Susan Heathfield, who has been covering human resources issues for About.com since 2000.

Heathfield said that employers need to establish social media policies that address public disclosure of company secrets, but should not pry into applicants' private accounts. Considering that it's illegal for employers to ask about a job seeker's age, race, country of origin, family, or health, employers could face discrimination when they find the answers to all those questions in applicants' Facebook accounts.

Just imagine an applicant who posts that she's pregnant in a private Facebook post and then doesn't get the job she applied for after handing her password over to the hiring manager. She could file an discrimination suit or an EEOC claim against the employer, claiming that she wasn't hired because of her medical condition.

Heathfield said that even responding to an EEOC claim can be a costly and time-consuming process as employers must produce documentation for every aspect of the hiring process that resulted in the claimant not getting the job, from written interview observations to notes explaining why each applicant was or was not invited to an interview.  Since few companies keep such detailed records, they could end up in even deeper trouble when they're not able to hand over this paperwork.

"An EEOC charge, whether an employer is guilty or not, is time consuming and a horrible experience for an employer," Heathfield said.