Employers Are Demanding Facebook Passwords—Should They?
It’s hard to miss the latest news reports. Employers around the country are demanding Facebook passwords from both applicants and current employees in order to monitor employee activity. While the allure is understandable – in this day and age, almost any negative internet-based comment about an employer can be found by customers, clients and potential employees – the real question is, should an employer take such a drastic step? Probably not.
First, consider whether you even have a legitimate need for the information you are requesting. As an employer, you presumably don’t monitor the minutiae of off-the-job conduct. If that’s the case, why take such a drastic step as monitoring employee Facebook posts? The need to control your employees’ off-the-job speech and conduct generally is rarely tied to any legitimate employer interest. Simply address inappropriate comments about the workplace in your written policies, and follow up if you get a report of an inappropriate post. That is normally sufficient. If you do have a legitimate need to monitor off-the-job conduct generally, then a Facebook password request might be appropriate. If you don’t otherwise regulate off-the-job conduct, however, beyond a simple admonition to refrain from disparaging the employer publically, then take the same tack with Facebook.
Second, a backlash is already growing against employer requests for passwords to on-line accounts. Employee rights groups and privacy advocates are up in arms, and allegations of employer overreaching have lead to proposed legislation in both Maryland and Illinois to ban the practice, as well as bad press for employers who have taken such drastic steps.
Third, the practice is arguably illegal. Facebook’s terms and conditions prohibit password sharing, and federal privacy laws make violations of online terms and conditions related to password access illegal. Now is a federal criminal prosecution likely? No. But if you end up discharging an employee because of either a refusal to turn over a Facebook password or because of something you find as a result of use of the password, your illegal conduct may be at issue in any discrimination or wrongful discharge litigation.
Last, representing to employees that you will be monitoring Facebook accounts could open you as an employer up to liability beyond the rather ephemeral threat of a federal privacy law violation. Say, for instance, you tell employees you will be monitoring accounts using the passwords, but you really just spot-check. One employee makes a threat of violence against another employee and carries out on that threat at the workplace. Did you as an employer have a duty to act on that online threat and protect the employee from violence? If you as the employer have represented you will be monitoring the accounts, you could be held civilly liable for failing to protect that employee on the job. Monitoring online accounts simply opens a can of worms you don’t want to open.
Don’t immediately jump on the bandwagon and start demanding Facebook passwords unless you believe you have a legitimate need for the information. If you do think you have a legitimate reason to demand employee Facebook passwords, contact your employment attorneys and run through the pros and cons.
Amy D. Cubbage, Of Counsel in our Louisville office, practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts, and employment litigation. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. Ms. Cubbage can be reached at (502) 327-5400 or firstname.lastname@example.org.
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