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FindLaw Survey: Employers Rarely Ask for Social Media Passwords

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By Aditi Mukherji, JD on November 26, 2013 9:56 AM

We hear the nightmarish "Big Brother" tales of employers requiring social media passwords as a condition of employment.

But as in-house counsel might expect, only three percent of Americans have actually been asked by an employer to hand over their social media passwords, according to a new FindLaw survey.

Welcome News to Employees

The incredibly low rate of password collection by employers brings great relief to employees. In fact, eighty-three percent of American adults say that employers should not be allowed to obtain passwords to personal social media accounts, such as Facebook, Twitter, and YouTube, according to the FindLaw survey.

Only a mere seven percent of surveyed individuals said employers should have the right to access their social network passwords. Ten percent weren't sure how they felt about the practice.

Welcome News to In-House Counsel, Too

Password collection can potentially function as an effective tool to help companies screen job candidates, protect proprietary information or trade secrets, comply with federal financial regulations, thwart PR disasters, and protect against vicarious legal liability.

But as far as legal departments are concerned, the practice could expose companies to significant liability for invasion of employee privacy. Particular concerns include accessing an employee's social media accounts and unwittingly discovering an employee's protected characteristics, such as religious preferences, confidential medical information, and arrests that never resulted in convictions.

Adding fodder for in-house counsel to shy away from such practices, Facebook announced last year that it might take legal action against employers who ask for job applicants' Facebook passwords. Apart from drawing the ire of Facebook, legal departments have emerging state laws to fear, too.

Though legislation on the federal level failed to pass, at least ten states have passed laws that expressly prohibit employers from requesting passwords to personal online accounts as a condition of employment, according to the National Conference of State Legislatures. Similar legislation is pending in at least twenty-six other states, according to the FindLaw survey.

To err on the side of caution, keep employees happy by thinking twice before implementing a social media password collection policy.

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