California has more employment laws than most states, many employers would say too many employment laws. The recent news that some employers are asking for Facebook passwords from potential employees raises the question whether this is illegal under California law.
It is likely such a practice would violate the California Constitution, Article 1, Section 1, which provides that all persons have a right to privacy in their personal affairs. This Section has been interpreted broadly in some cases, and held applicable to the employer-employee relationship.
Moreover, the California Fair Employment and Housing Act, codified in the Government Code, provides that employers cannot discriminate against employees or job applicants on the basis of sex, national origin, race, religion, or disability. If an employer could not ask a job applicant what religion they are in an interview, the argument is “why should the employer be allowed to view private information on Facebook that may very well lead to the discovery of the same information?”
Two U.S. Senators are asking U.S. Attorney General Eric Holder to investigate the alleged practice. Facebook itself has recently warned employers not to ask job applicants for their passwords, and has even threatened legal action for violations of Facebook’s policy regarding sharing passwords.
It is questionable how widespread this practice really is. That being said, employers in California would be well advised to steer clear of it.