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Senators to Holder: Investigate Employers’ Asking for Applicants’ Facebook Passwords

Uff da! Here's a pen stopper on your next job application: suppose your prospective employer asks for your Facebook password. Do you hand that over, or do you say, "None of your business!" and seek work elsewhere?

U.S. Senators Chuck Schumer and Richard Blumenthal would rather you didn't have to face that dilemma. They're asking Attorney General Eric Holder to investigate whether asking for job applicants' social media passwords violates federal employment and privacy laws.

I welcome my readers' armchair legal opinions. Facebook says you violate your user agreement if you share your password with anyone. I'll take a swing and contend that by asking for full access to applicants' social media accounts, employers are potentially violating every rule the Equal Employment Opportunity Commission lays out for pre-employment inquiries:

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas, information regarding race, sex, national origin, age, and religion are irrelevant in such determinations.

Employers are explicitly prohibited from making pre-employment inquiries about disability.

Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer's intent to discriminate unless the questions asked can be justified by some business purpose.

Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions, which may indicate the applicant's race, sex, national origin, disability status, age, religion, color or ancestry if answered, should generally be avoided.

Similarly, employers should not ask for a photograph of an applicant. If needed for identification purposes, a photograph may be obtained after an offer of employment is made and accepted [Equal Employment Opportunity Commission, "Prohibited Employment Policies/Practices,"].

EEOC then lists the following items about which questions from prospective employers can be "problematic under federal law":

It's pretty hard to talk to folks on Facebook and not give clear indications about at least a couple of those items. And even though I take the general position that I won't Tweet or Facebook messages that I'm not willing to take ownership of publicly, I still send and receive private messages through those media that my correspondents expect will be kept private. I would find a request from any third party—boss, cop, or judge—to be problematic under my sense of morality, not just federal law.

But hey, what's good for the goose taking a gander at my password-protected online content ought to be good for me, too, right? Perhaps I have a right to ask employers to surrender their Facebook passwords so I can make sure they are the kinds of people I want to work for, people who share my values and won't behave in ways that tarnish my reputation.

When you lay a password on online content, you're defining that as a conversation space over which you have some rights. Your prospective boss has no more business demanding your Facebook password than she does demanding a key to your house or a seat at your kitchen table to listen to your conversations with friends and family. Let's hope A.G. Holder comes to a similar conclusion.

Bonus Reading: Michigan Technical University lists illegal questions for its job interviews.


  1. Elliot Knuths 2012.03.25

    I just don't get it. If a job is worth enough to you, wouldn't sharing your Facebook password be the least you could do to win it? If I can't meet a company's desires, and someone else can, why should I be in contention for the position? Next the government will say that people who want a job's benefits but don't want to work will be as entitled to the job as people who are more than willing to work to assure their wages.

  2. LK 2012.03.25


    Your logic on this issue confuses me. An employer pays me for the hours I work at school, in the office, in the field or on the factory floor. That's it.

    He or she has every right to ask that I don't use Facebook or Twitter at work. He has every right to ask that I not write blog posts or comment on Cory's blog while I'm on the clock or using company equipment.

    At some point the workday ends. The employer has no right to stop me from doing any legal activity. I can write my blog posts, comment on Cory's blog, have a beer, eat fatty foods, and take a nap. (By the way, I don't have Facebook and I can't remember when I last had a beer. I'm guilty of all of the other sins I mention here.)

    The idea that employers or potential can ask for a password for a work product done on my own time is akin to asking for the PIN number for my bank account. If a boss thinks an employee is stealing money or a using Facebook or a blog to publish proprietary information, the employer can go through proper channels and have him arrested.

    Some of your other posts indicate a Libertarian streak. Why does an employer have the power to interfere in one's personal life but the government does not? I want them both to leave me alone if I am doing legal activities on my own time in my own house.

  3. Bill Fleming 2012.03.25

    Sounds goofy to me. It's like a prospective employer saying if they can't come to your house and rummage through your underwear drawer, you can't have the job. Maybe Elliot K. wouldn't mind, but most people (including the framers of the US Constitution?) would.

  4. larry kurtz 2012.03.25

    Your missive reads like another ringing endorsement of strong trade unions, Cory.

  5. Bill Fleming 2012.03.25

    At our office, we abide by the following "don't ask" rules when hiring:

    Don't Ask… A Checklist of Questions to Avoid

    Here are questions you cannot ask by law.

    1. Birthplace
    2. Birthplace of parents, spouse or other close relatives
    3. If applicant is a native or naturalized citizen
    4. Foreign languages that applicant reads, writes or speaks fluently
    5. How applicant acquired fluency in foreign languages
    6. Wife’s maiden name
    7. Mother’s maiden name

    These questions provide information about a candidate’s national origin and ethnic background. If the job requires fluency in a foreign language, question 4 is acceptable.

    8. Has applicant ever worked under another name
    9. Marital status
    10. Plans for marriage or pregnancy
    11. Number of children
    12. If applicant has child care problems
    13. Information about spouse’s job plans

    These questions could be found discriminatory against women or married people. If relevant to candidates’ willingness to do the job (working overtime, traveling, etc.), they can be asked providing questions are framed in job-related terms, not personal terms. (Ask, “Are you able to
    work overtime or weekends on very short notice if needed?” Don’t ask, “How will you handle child care problems if we need you to work overtime?”)

    14. If applicant has ever been arrested
    15. Type of discharge from military service
    16. Names of clubs, societies or lodges to which applicant belongs17. If applicant owns a car
    18. Whether applicant lives in a house or rents an apartment
    19. Whether applicant owns or rents a home

    These questions can be viewed as discriminatory toward a protected class of employees. For instance, certain minorities may be as a group more likely to have been arrested than whites, or less likely to own a car or a home. Hiring decisions based on such questions have to be justifiable as directly pertaining to candidates’ ability to perform the job.

    20. Height and weight
    21. If applicant has a disability
    22. If applicant has AIDS or other serious diseases

    Medical questions are allowable only after an offer has been tendered. Many employers require that a job offer be contingent on the new employee passing a physical. And even the physical has to have some bearing on ability to do the job. Never ask medical questions during the
    selection process.

    20. Applicant’s age

    You can only ask age if you need to verify candidates meet minimum age requirements to hold a full-time position or work a certain number of hours (i.e., over eighteen).

  6. grudznick 2012.03.25

    BAH. The last two times I applied for a job in Rapid City I was asked questions #21, #22, and the second #20 (not the first #20, because that's so obvious why would they ask it, they saw me come in and stand there and shake their hand.)

    Admittedly this was a number of years ago and rules may have changed, but back in my day of being the asker I always asked about #21 and #15.

  7. caheidelberger Post author | 2012.03.25

    And Grudz, you shouldn't have been asked, and you shouldn't have asked.

    Elliot, if a job means enough to me, what other violations of my privacy ought I be willing to bear? If a job means enough to me, ought I permit the boss to sleep with me on request? LK, thank you for pointing out the fundamental inconsistency in this supposed libertarian thinking, that regards any move by government as tyranny, but allows corporations/capital to commit worse violations.

    Bill, thanks for your handy list!

  8. D.E. Bishop 2012.03.25

    Yeah, that's crap. No employer has any business snooping in any of my private affairs, online or anywhere else, as long as they have no bearing on my work.

    (BTW, I do have a FB page. I update it about every six months. I check maybe once every month or so. Why do I even have it then? I don't know. Guess I'm too lazy to delete it.)

    I know that it's pretty common for employers to be looking at prospective employee's credit ratings. After reading the Banned Questions lists, is that illegal then?

  9. caheidelberger Post author | 2012.03.25

    Questions about credit rating, EEOC says with characteristic caution, "generally should be avoided because they tend to impact more adversely on minorities and females. Exceptions exist if the employer can show that such information is essential to the particular job in question." Can anyone tell me why an employer might need to know my credit rating?

  10. BW Schwartz 2012.03.25

    Can anyone tell me why an employer might need to know my credit rating?

    If your job requires a security clearance, a credit check is deemed necessary.

  11. caheidelberger Post author | 2012.03.25

    Ah, of course! Thank you, Bob! Now that would be federal government and its contractors, right? How many private employers can make the case that their non-government work requires similar security precautions (to make sure employees aren't easily blackmailable or bribable, right?)?

  12. BW Schwartz 2012.03.26

    You are correct on the government job Cory, but being someone who is currently conducting a job search I have found that many prospective employers besides the aforementioned government/contractor positions do credit checks as part of the interview process. I asked one time about it and was told that they do it to see how "reliable" you are.

  13. caheidelberger Post author | 2012.03.26

    "reliable"—don't we have references for that? It seems credit rating can can be affected by all sorts of factors independent of one's moral virtue. And if your credit rating has taken a hit because of some external factor (sickness? family emergency? identity theft?), don't you end up having to explain a bunch of other things that the employer has no right to ask about in the first place?

  14. caheidelberger Post author | 2012.03.26

    ...oh! and good luck with that job search!

  15. BW Schwartz 2012.03.26

    From what I was told, all too often if an employer sees that your credit is whacked for whatever reason, they just move on to another candidate and therefore don't have to ask those questions.

    Also another fairly new "process" for some employers is that they pass on you if you are unemployed. I had a former acquaintance of mine that owns his own business who told me that he refuses to hire anyone who is unemployed because in his mind you must have some sort of issue if you don't have a job. Believe it or not, I have found that this isn't as uncommon as you would think.

    Giving out Facebook passwords, while an obvious breach of privacy, is not the only roadblock job hunters must deal with.

  16. Bill Fleming 2012.03.26

    I should probably include the questions it's okay TO ask as well:

    What An Interviewer May Ask

    1. Any information on the application for further review.

    2. Why the applicant left former employment.

    3. What kind of references the applicant would receive from former employers.

    4. What the applicant’s prior job duties consisted of.

    5. What the applicant liked or disliked about his/her prior job.

    6. What kind of job duties the applicant is interested in.

    7. What hours or days the applicant is available or unavailable to work.

    8. What the applicant feels, in terms of self-evaluation, are his/her strengths and weaknesses for the present job (also could be asked for prior jobs).

    9. Allow the applicant to mention and discuss what s/he feels is relevant to the job s/he is applying for.

    10. If the applicant was ever convicted of a felony.

    11. Whether the applicant has transportation to and from work.

    It's also okay (even wise?) to do some kind of basic intelligence test, and a personality test (like Myers-Briggs).

  17. caheidelberger Post author | 2012.03.26

    Bob, that acquaintance's perception of unemployment is appalling.

    Bill, I was wondering about intelligence tests. Do you know any employers who do IQ tests?

  18. Bill Fleming 2012.03.26

    Yes. The "Civil Service" test for example. We give little "assignments" to interviewees who look promising. They do, after all, have to be able to actually do the work, right? ;^)

  19. WayneB 2012.03.26

    What bothers me almost as much as the invasion is how short sighted the employers are - if I'm willing to open up my intimates to a prospective employer, how likely am I to keep the company's secrets?

  20. Douglas Wiken 2012.03.26

    Give him the password and put in one last bit of information: "This is my last comment here. Prospective employer wants password. Goodbye."

Comments are closed.