Legislation against employers seeking Facebook login details

by Astrid Wilson14 Aug 2012

We’ve all been warned: our banks will never request our pin or online banking passwords – and if they do, it’s a scam.

But what about asking a candidate for their Facebook login and password, or insisting the candidate ‘friend’ a person in the HR team? Well, despite some major firms in the US doing exactly that, it’s a scam, too.

A deluge of US reports have indicated that the trend is on the rise, and the state of Illinois has now recognised the issue by legislating against the practice. The legislation, H.B. 3782, now makes it illegal for an employer to request an employee’s or job candidate’s social network account information, such as username or password, in order to gain access to their account or profile, according to a statement issued by the governor’s office. The move follows similar legislation already signed into law in the state of Maryland. “Members of the workforce should not be punished for information their employers don’t legally have the right to have,” the governor said in a statement. “As use of social media continues to expand, this new law will protect workers and their right to personal privacy,” she said.

While there are yet to be any reported cases of the same trend in Australia, HR experts have said many already use Facebook to look up potential candidates as part of the hiring process.

According to one recruiter, Facebook checking is already becoming entrenched in the process and it’s only a matter of time before somebody takes the next step and requests login details. “In the financial services industry, or anywhere else that already has entrenched security or background checking, this will just form another element of it,” recruiter Andy Cross said.

Yet if HR makes a habit of viewing a candidate’s Facebook information, it may be breaking the law whether it’s publicly available information or not. If, after viewing information on a social network, an employer acts prejudicially towards an employee or job applicant, that individual may have grounds under the Fair Work Act or anti-discrimination legislation to bring legal action against the employer. “The prospective employer will have the onus of proving that the protected attribute was not a motivating factor in deciding not to employ the person, and on the basis of current laws this will be difficult for the prospective employer,” workplace lawyer Joel Zyngier from Holding Redlich said.

Common information uploaded to social networks that is protected from discrimination by Australian law includes information about a user’s:

  • Sexuality
  • Religion
  • political beliefs; and
  • family responsibilities

This information cannot be used to judge merit for a current or potential position. “In the pursuit of personal protection, employers will always seek to employ those who best fit the position and the organisation. However, a line needs to be established between publicly available information, and breaching privacy,” Zyngier said, adding that the place to draw the line should be well short of asking for access to personal social networks.

Still, employers who think they’re being smart may be outsmarted in their own game. An increasing number of young professionals have an “official” Facebook page for employers or family members and a “social” page just for friends, Brian Regan from the University of Newcastle commented.


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