Access To Social Media Accounts In The Hiring Process And Employer Ownership Of Trade Secrets Or Confidential Information Contained In Social Media Accounts: Legislation On Horizon?

On Monday March 26, 2012, Senators Richard Blumenthal (Connecticut) and Chuck Schumer (New York), called for federal agencies to determine whether requiring prospective hires to hand over social networking usernames and passwords violates federal law. Blumenthal and Schumer called on the United States Equal Employment Opportunity Commission (“EEOC”) to investigate whether such practices violate federal anti-discrimination laws and the United States Department of Justice to investigate whether such practices violate the Stored Communication Act (“SCA”) or Computer Fraud and Abuse Act (“CFAA”).

Allowing access to a prospective employee’s social media password could allow the employer to access information the company is prohibited from asking about in the hiring process. Under the Americans with Disabilities Act and Genetic Information Nondiscrimination Act, prospective employers are prohibited from asking about genetic information, age or disability. However, if employers can access a prospective employee’s social media page, they may have access to such information. An employer who then chooses not to hire a member of a protected class or takes other adverse action, may run the risk of allegations that the company violated federal law or state law by refusing to hire a person because of his or her membership in a protected class.

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