New Laws Prohibit Employers from Requiring Access to Applicants’ Private Information
Most job applicants maintain one, if not several, social media accounts. Many employers now routinely review available social media resources when making employment decisions. This trend, together with cautions and advice, is the subject of previous blog entries. Today's topic is a little different. New Jersey recently became the ninth state to pass a law restricting employers from pressing applicants to provide access to their social media accounts to prospective employers. One view is that the New Jersey statute (and the other laws like it) simply say something that should be obvious -- don't push your job applicants to share private information with you as part of the application process. There's more to it than that, however. The statutes reflect the importance employers are placing on information derived through social media. And, the emphasis placed on information gleaned through social media sources is, I think, a mistake.
First, a confession. I am a parent or stepparent to four teenagers. I stalk them on social media. They all know, and hate, this about me. The experience of the past several years is, however, instructive. Social media distorts their lives. If you were to look at any one of their various accounts (Facebook, Tumblr, Twitter, etc.), you would see a version of them that overstates some aspect of their personality pretty dramatically. In my capacity as Dad, I warn them about it. In my capacity as a lawyer, I share this with clients to caution them against drawing too strong a conclusion from what they discover on any particular social media outlet.
For example, a series of picture postings on Facebook might suggest an applicant who is hyper-social. But -- that might not be accurate, and, even if accurate, might not have anything to do with how the person would perform in a given job. In other words, a social media snippet provides some information, but it is inherently unreliable and (absent verification) should not be the basis for any employment decision. Nevertheless, the statutes that motivate this post show how serious some employers are about obtaining access to such information and the degree to which state governments are trying to decide what “private” means in a post-Internet age.
The New Jersey statute, like the other state laws, prevents an employer from compelling an applicant to provide passwords or other tools to access information that is not publicly shared. Said a little differently, states are not willing to let an employer condition employment on obtaining access to information that the applicant keeps private. If the employer can find it through Google (or otherwise), that's fine. If the employer needs the applicant's cooperation to see it, then it is out of bounds. For lawyers, this a comfortable notion -- if the applicant has a reasonable expectation of privacy in the information (because access is restricted), the employer cannot force the applicant to share the information. If there is no basis for the applicant to believe the information is private, however, all bets are off.
There is certainly no statutory regime that can prevent employers from searching publicly available information about job candidates. Very conservative employment lawyers caution against such searching -- worrying about the possibility of a discrimination or retaliation claim premised on information discovered through such a search. Others work to make sure employers understand the risk of unreliability inherent in such searches and the danger of possible claims based on information that suggests that a potential employee is member of a protected class. Realistically, employers will search. As a consequence, they need to aspire to uniformity in approach and to avoid decisions that could suggest unlawful motives.
Every week brings more and more thinking and writing about social media. The Internet made the world more immediate. Social media grants strangers access to information many of us think of as private. Making sense of the availability of that information and its reliability is an evolving challenge. For now, employers are well-advised to be careful not to compel disclosure from applicants and to tread carefully through what they uncover through Internet searching. Changing conditions invite litigation, and employers need to be cautious to avoid being the targets of lawsuits that seek to chart new waters and expand employer liability.