Minnesota Employment Law Report - Observations on labor and employment law from FLFV

All of a sudden, the prospect of employers demanding Facebook passwords as part of the hiring process has burst onto the scene.  Cries of outrage have ensued - Facebook hinted at legal action, the ACLU is talking privacy-related lawsuits, state legislators (including one in Minnesota) are drafting bills in prohibiting the practice, and two U.S. Senators are calling for investigations by the Department of Justice and the Equal Employment Opportunity Commission.

Employers’ use of social networking sites (“SNS”) like Facebook or LinkedIn to screen applicants is nothing new.  One 2011 Reppler study even found that 91% of employers were doing it and that 69% of those eliminated at least one candidate based on information uncovered.

Just what are the risks of using SNS’s in the pre-employment arena?

Risks of Reviewing SNS Information

In general, anti-discrimination laws prevent employers from asking applicants about their marital status, pregnancy, future child bearing plans, religion, disability and other questions related to characteristics or traits protected by these laws.  Perusing an applicant’s Facebook page or Twitter site may allow the employer to obtain this prohibited information, and may give the rejected applicant reason to believe that it was this information that caused them to lose the job, not their lack of qualifications or poor interviewing skills.

Risks of Asking for Applicants’ Passwords

In particular, requesting an applicant’s SNS password may also violate the federal Stored Communication Act (“SCA”) or the Computer Fraud and Abuse Act (“CFAA”). The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, and the CFAA prohibits intentional access to a computer without authorization to obtain information.

Of course, neither of these statutes applies where the individual has consented to the access. Thus, the question becomes whether any such consent is truly voluntary or whether it was coerced by the threat of not getting the job if the consent is withheld.

In the case of Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009), for example, employees created an online chat group for venting frustrations about the employer and their managers. When the company learned of the site, one participating employee provided her log-in information under the belief that she was would have been penalized if she did not do so. This was enough for the jury to find that the access was not authorized and that it violated the SCA.

Bottom Line

While Pietrylo involved a current employee, the analysis seems just as compelling in the pre-hire context.  For this reason, until we have more certainty about the legalities of this practice, employers should be wary of requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites.

This does not mean that SNS’s are not valuable tools in an overall pre-employment procedure.  It just means that employers should be cautious about whether they wish to enter this legal gray area by requiring access to what is otherwise considered a private domain.

The American’s with Disabilities Act (“ADA”) requires employers to provide reasonable accommodation to qualified individuals with disabilities, unless to do so would cause undue hardship.  The employer's accommodation obligation is not all encompassing, and is limited to those accommodations that are “job-related.”  Job-related accommodations are distinguished from "personal" accommodations that “assist[] the individual throughout his or her daily activities.”

With regard to an employee’s commute to and from work, the First, Third, Fourth and Sixth Federal Circuit Courts of Appeals have ruled that the employer's accommodation obligation does not include providing commuting assistance to employees since this is not part of the actual work environment.  

In addition, in a 2001 “Informal Guidance” letter from EEOC Associate Legal Counsel Peggy R. Mastroianni, the EEOC took the position that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form of reasonable accommodation.

Nevertheless, last month, the Second Circuit Court of Appeals (based in New York) decided in Nixon-Tinkelman v. New York City Dep’t of Health and Mental Hygiene, No. 10-3317, 2011 WL 3489001 (2d Cir. Aug. 10, 2011), that an employer’s accommodation obligation may include providing an employee with certain commuting assistance.

In that case, the employee suffered from multiple physical disabilities.  After transferring to the Manhattan office, she requested a transfer back to the Queens office, which was closer to her home and her doctor.  The employee also requested several other transportation-related accommodations, including use of City-owned car, a parking permit and the ability to work from home for a few days every week.   She then sued the City when they denied these requests, but the trial court dismissed the case because commuting was outside  the scope of her work environment.

The Second Circuit disagreed, explaining that because job performance relies on attendance, the employer must consider measures that “assist in [the] employee’s commute.”  They then ordered the lower court to reconsider whether the employer could have reasonably accommodated the employee by (a) transferring her back to the Queens facility or another closer location, (b) allowing her to work from home, or (c) providing her with a City-owned car or parking permit.

Bottom Line

This decision represents an emerging split among the federal courts regarding the employer's duty to accommodate commuting and transportation needs.  The Eighth Circuit, in which Minnesota sits, has not yet ruled definitively on this issue and we will have to keep an eye on how this issue develops locally.  Ultimately, the matter may have to be resolved by the Supreme Court.  Until then, employers should give some thought to whether they can accommodate this sort of situation in an efficient and effective manner, just to stay on the safe side.