Local Attorney Comments on Story Regarding Employer's Demand for Facebook Passwords

For Immediate Release | Posted Mar 26, 2012

On Monday, two leading Democratic US senators asked the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) to investigate whether employer-required access to individual Facebook profiles violates federal laws.

Philip L. Ellison, an attorney and civil litigator from Outside Legal Counsel PLC comments:
    Requiring access to this type of personal information trove in the employment selection process is extremely risky.

    Federal law requires that employers may not discriminate on the basis of race, color, religion, sex, or national origin. Michigan law is even more expansive by banning discrimination on all the above and adds age, height, weight, familial status, and marital status.

    A single log-in to a personal Facebook page can include information that contains many, if not all, of the above discrimination-based factors on the user’s profile page. While employers may argue after the fact that such information was not a consideration, the ability to defend against such in a court of law is that much more difficult.

    With such uncertainty in the law, it is better for employers to steer clear and use relevant objective criteria to select new additions to their staffs rather than potential pitfalls of a Facebook profile.
Additionally, Facebook has made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.