Can Employers Look at Applicants’ and Employees’ Social Media Accounts?

Some employers have asked job applicants to provide them with social media passwords or to make their posts accessible to them as a condition of the hiring process. Many job applicants have fought back, and some lawmakers have taken action to prohibit the practice.

Maine recently passed a law that prohibits employers from requiring employees or job applicants to provide social media account information or passwords. The law was not passed by the legislature and signed by the governor. It was actually part of a group of 65 bills that Governor Paul LePage tried to veto but could not because the legislature had adjourned. Maine’s Supreme Court ruled that all 65 of the bills were now law.

The Society of Human Resources Management reports that millennials make up 36 percent of the United States workforce and will account for 75 percent of the world’s workforce by 2025. Since this group has grown up using social media, the area is a source of interest and concern for both job applicants and employers.

Several laws are already on the books that act as guidelines for the use of social media in hiring. Employers should not require, coerce, or request that an applicant or employee disclose the password for a private social media account, access a personal social media account in the employer’s presence, or disclose any information related to a personal social media account. An employer also should not require an employee or applicant to add anyone to the list of contacts associated with a personal social media account or change any settings that would affect a third party’s ability to view the content of the social media account.

Across the country, asking an applicant or employee to provide a social media account password can put an employer in violation of the Federal Stored Communications Act. Other laws may also apply. If an employer uses a third party to conduct social media screening, the company is probably subject to the Fair Credit Reporting Act and applicable state laws. Some state laws prohibit employers from taking adverse action against employees for conduct off-duty, except under certain circumstances.

According to the National Conference of State Legislatures, 21 states have passed laws to discourage employers from requesting or acquiring social media account passwords. Employers cannot terminate or discipline an employee or reject an applicant for refusing to provide prohibited information.