Senators Richard Blumenthal (D-CT) and Charles Schumer (D-NY) recently wrote to the US Attorney General and the Chair of the Equal Employment Opportunity Commission (EEOC), referring to a “disturbing trend” of employers demanding that job applicants provide their user names and passwords for social networking and email Websites, to permit employers to review such information as part of the interview process. The Senators requested legal opinions from the Department of Justice and EEOC regarding the practice and suggested that legislation might be required to “fill any gaps in federal law.”
The Senators described the practice of demanding password information as a “grave intrusion” into personal privacy and a “dangerous precedent” that could “make it more difficult for Americans to get jobs, and expose employers to discrimination claims.” They acknowledged, however, that “comprehensive background checks for individuals are sometimes needed” when applicants seek employment in law enforcement, at “highly sensitive infrastructure sites,” or for jobs “where there is significant access to vulnerable populations.”
Yet this ship may already have sailed. In one survey (already three years old), 45 percent of employers reported using social networking information to screen employment candidates. And employment consultants note that failure to make use of such information might, in some cases, lead to claims of “negligent hiring” of dishonest or dangerous employees.
Indeed, as Senator Schumer and others complained in an open letter to Facebook CEO Mark Zuckerberg, with little more than a telephone number and a home address: “Anyone with ten minutes, $25,” and such information “can obtain a breathtaking amount of information” from various “people search” sites. Such information, moreover, may be out-of-date and inaccurate, or pertain to someone other than the job applicant (but with the same name).
Employers can be sorely challenged to navigate this minefield -- damned if they do (obtain sensitive information) and damned if they don’t (conduct adequate screening). The uncertainty of regulatory sources (federal and state legislation, privacy “common law,” collective bargaining agreements with labor unions, and more) merely adds to the difficulty. Without judging the best means to resolve these policy dilemmas, it may be time for a more comprehensive national debate on the use of social networking information.
[Disclosure: The author is a partner in the New York City offices of Jones Day and chairman of its e-discovery committee. He teaches electronic discovery at New York Law School and Conflicts of Law at Hofstra Law School. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients.]
— Steven C. Bennett is a partner in the New York City offices of international law firm Jones Day.