This week, I was on the national Internet radio program Money for Lunch, talking about hot topics in labor, employment, and business law. The first question I was asked was whether, in Texas, an employer can make an employee or potential hire turn over his/her social media password(s). In a word, the answer is yes.
Unlike Maryland, Illinois, and California, there is currently no law in Texas banning employers from requiring employees or potential hires to turn over their social media passwords as a condition of hire or employment. Nor is there currently any legislation in the works that would do so.
That being said, as tempting as it may be for Texas employers to require employees or potential hires to turn over their social media passwords, it is not a good idea, for one simple reason: the risk outweighs the benefit.
Example 1: Company interviews Candidate A, a woman, and candidate B, a man. Company asks for the candidates’ Facebook passwords. The Company looks at both candidates’ Facebook pages and learns that (1) B is into rockclimbing and calls people “Dog,” and (2) A is pregnant. A and B have equal qualifications and experience, but B’s references are better than A’s, so the Company hires B. After A is turned down, she sues for pregnancy discrimination.
Even though the Company did not choose B over A for discriminatory reasons, it will now have to pay tens of thousands of dollars to defend the lawsuit. Why? Because before it selected B over A, the Company inadvertently discovered that A was pregnant, creating the appearance of discrimination.
Example 2: B starts working for the Company. B does good work. But his habit of calling his coworkers “Dog” infuriates his manager, who believes that he is insulting his female coworkers’ appearance. B breaks his leg in a rockclimbing accident and is on medical leave for a week. While he is gone, his manager decides that when he gets back, she is going to terminate his employment for rudeness toward coworkers. She does, and he sues the Company for retaliation under the Family and Medical Leave Act (FMLA). The Company argues that by calling coworkers “Dog,” he violated the Company’s code of conduct. B argues that, because the Company knew he called people “Dog” before it hired him and hired him anyway, the Company’s alleged reason for termination is pretextual, and the real reason for his termination is FMLA retaliation.
Again, though the Company did not terminate B for discriminatory reasons, it will now have to pay tens of thousands of dollars to defend the lawsuit. Why? Because before it hired B, the Company inadvertently discovered that B calls people “Dog,” making its reason for termination look like pretext.
Because of the heavy risks associated with reviewing employees’/potential hires’ social media sites, consider evaluating the old-fashioned way: by qualifications, experience, references, and background checks. Just make sure the service conducting the background check does not use or removes any information obtained from social media.