During a recent talk in Deloitte on “Social Media and the Law”, I spoke about the fact that Maryland became the first state in the US to ban employers from asking both employees and job applicants for their social media passwords. The bill, which passed both houses of Maryland’s legislature, is expected to be signed by Governor Martin O’Malley, and take effect on October 1, 2012. It now appears that a a number of other states in the US are considering introducing similar bills including New Jersey, New York, Washington, California and Illinois and no doubt other states/countries may follow suit..
Although Facebook’s Chief Privacy Officer, Erin Egan, has reported “a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information.” it appears that in practice, many employers continue to use online search engines to search applicants online. However employers should be wary whether in Ireland or elsewhere as depending on how such search results are used and what is discovered, an employee could for example claim they have been discriminated against under the Employment Equality Acts 1998 (as amended) if they have been refused employment on one of the nine prohibited grounds which could be displayed on their profile e.g. age (the nine prohibited grounds under the Acts are age, gender, race, religion, marital status, family status, membership of a travelling community, disability and sexual orientation)
On a practical note, employers should exercise caution in using any information gained online and limit searches to information readily available in the public domain.