Can we request applicants’ Facebook passwords?

Q. We have heard that employers are increasingly screening applicants online, including by going to their Facebook pages. Can we require an applicant who has a private Facebook page to give us the password to that page?

A. The law in this area is still unsettled, but requiring applicants to turn over passwords to Facebook or other similar sites during the hiring process is a risky proposition. Employers that are requiring passwords to do online screenings are increasingly being criticized in the press, leading to bad PR that may affect the quality of their applicant pools.

In addition, individuals who are required to turn over passwords might sue for violation of their common-law privacy rights or under existing electronic communication laws. Those laws were not written with modern technology in mind, so it’s unclear how such lawsuits might turn out, but it would no doubt be expensive.

Moreover, there is a growing legislative trend to try to ban em­ployers from requiring passwords to online sites.

A number of states, including California and New Jersey, are seeking to pass laws prohibiting employers from requiring individuals to turn over such passwords.

In addition, a proposed federal bill, the Password Pro­­tec­­tion Act of 2012, was introduced into Congress in May. If the bill becomes law, it would prohibit ­employers from requesting passwords or access to an em­­ployee’s account on Facebook or to other social networking sites.

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