Facebook – is that password protected?

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Posted in:HR and Employment|April 18, 2012 | Join the mailing list

There have been recent discussions in both the USA and the UK as to whether employers should be allowed to request access to potential and current employees’ Facebook login details.

This debate originated in the USA where a potential employee was asked to provide his Facebook login information during a job interview as the employer claimed he was unable to find his profile on the website. The candidate withdrew his application as he did
not want to work for an employer that considered it appropriate to invade his privacy in this way.

Requesting login details appears to be a common practice in the USA. For example, during the job interview process for the Virginia State Police, all applicants are required to sign in to Facebook, Twitter and other social networking sites they post information

In the UK, a request was made to an employee of an online retailer to provide his login details to his employer as the employer felt that he had something to hide by having high privacy settings. The employee refused to provide the details and no further action
was taken but the outcome may have been different with another employer.

There appears to be a growing trend of employers requiring access to social media to view the details posted by employees or job applicants.  This raises concerns over an individual’s right to privacy and arguably breaches the implied term of trust and confidence
required in any employment relationship.

One key issue is that often a person’s Facebook page includes many personal details which would not usually be required on an application form, nor would employers be permitted to ask such questions during an interview. Information obtained in this way may
be used as part of the recruitment process, and the usual safeguards against discrimination in the decision- -making process would be bypassed, which in turn could increase the risk of discrimination claims.

A request was made by US Senators to investigate whether such requests were illegal but, last week, the House of Representatives voted against a bill that would have prevented employers from making applicants provide their Facebook password. In the UK, the
Information Commissioner’s Office has warned UK employers that this practice could potentially result in them breaching the Data Protection Act 1998.

Employers need to consider carefully whether they really do need to gain access to this type of personal information and how a request for access would be viewed by employees/potential recruits.  Similarly, employees need to bear in mind that not only their
"friends" may have access to their social media postings.

To discuss how we can provide further advice in connection with these issues, please contact Nigel Crebbin, a Partner in our Employment Team, by email to
nigelc@berg.co.uk or alternatively you can call Nigel on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice.  No responsibility for this article’s accuracy or correctness is assumed by Berg or any of its partners or
employees.  Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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