Employers are well advised to think twice about asking employees and applicants for their Facebook and other social media information, including passwords. After the media reported on this trend, there was a widespread public debate. Many people were upset and Facebook even made a statement claiming that they may pursue legal action against employers who demand passwords from Facebook users. This leaves both employers and employees wondering whether seeking such information is legal.

The answer is unclear. While there is no federal law explicitly preventing potential employers from asking for Facebook passwords, one question is whether regulators might interpret and enforce employee protection statutes to include asking employees for such information. With no explicit guidance, some employers appear to ask for passwords simply because they can. Also, given the proliferation of identity theft, many advisers recommend that applicant and employees take measures to protect their personal lives and politely refuse to give out this information. Which leads to the question of the legality of whether such refusal is used to deny an applicant the employment opportunity.

There is scarce established case law on this issue. However, according to the Society of Human Resource Management, twenty-four (24) states have established social media privacy laws. Legislators are even asking the Equal Employment Opportunity Commission and the Department of Justice to look into whether employers are violating any federal laws when asking for such personal information.

One approach likely to be taken by regulators is to determine whether anti-discrimination laws might prevent an employer from asking for social media account information. Employers are not allowed to make hiring, or other employment decisions, based on certain classifications such as race, sex, disability, marital status and religious views. Thus, it is an open question as to whether demanded access to social media information that may lead to the disclosure of protected category information that may be considered illegal and unnecessary with regard to hiring or employment decisions.