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Applicants, Employers, and Social Media: The Plot Thickens

As most of you are probably aware, social media policies and practices established by employers have been the focus of the National Labor Relations Board (NLRB).  It seems, though, that some employer interview and hiring practices have drawn quite a bit of negative attention as of late from the mainstream media and various politicians across the country.  At the end of March a series of news media stories received national attention (and some news talk show debate airtime).  These stories were focused on employers requiring applicants to provide them with their social media login/password information so the interviewer could review the applicant's non-public profile information.  Another twist of the same general concept is for the applicant to be required to log in and allow the interviewer the opportunity to review that private information on the spot.

While not illegal as of yet, this tactic takes the review of an applicant's social media presence to a whole new level.  There are a number of risks associated with reviewing social media sites (even if the information is public) as part of the hiring process.  Employers may uncover information as part of the social media inquiry that it doesn't really want to know or consider in the hiring process.  Taking this inquiry to the level of requiring an applicant to open up private information to the interviewer adds on a layer of additional risk.  Each employer has to balance the risks of reviewing the social media information with the value of the information and its relevance to the hiring process.   

Employers should stay tuned as this issue of forced access continues to generate attention.  The Illinois legislature is already at work on the issue, and a bill has passed the Illinois House prohibiting this practice.  It is likely other states will consider this issue as well.  Furthermore, the federal government may get involved in the debate as Congress or any number of federal agencies may choose to regulate this practice.  Finally, employers should be mindful that a number of state and federal laws already regulate the usage of another individuals electronic information.  It is possible these statutes/regulations could be implicated by this practice.


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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