Sen. Charles Schumer (D-N.Y.) and Sen. Richard Blumenthal (D-Conn.) have asked the Dept. of Justice and the Equal Employment Opportunity Commission to investigate whether the practice of employers asking applicants for their social media passwords violates the law.
In their March 26 letter to the Dept. of Justice, the senators questioned whether such action violates the Stored Communications Act. They cite two cases where SCA violations were found where employers accessed employees’ social media sites and terminated them for posts critical of the employer. Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009) and Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002). Both of these cases, however, dealt with current employees, not applicants.
The senators sent a letter to the EEOC on the same day asking it to determine whether such requests could violate anti-discrimination laws. Their concern is that employers may learn information about the protected statuses of applicants from their social media sites such as medical conditions/disabilities, genetic information, or religious viewpoints and illegally discriminate by refusing to hire on that basis.
Sen. Blumenthal also announced that he is drafting legislation to restrict employers from requiring applicants to provide this information. Such legislation has been proposed at the state level, but has not been enacted into law.