According to Maurice Blackburn principal Kamal Farouque, the recent emergence in the United States of employers asking prospective employees for access to their Facebook accounts is not only a “very intrusive request”, but also represents the tendency amongst employers to try and extend their reach into the lives of their employees. 

“[Such requests] represent the pointy end of a trend which is occurring generally in employment, which is employers seeking to extend their reach into the employee’s personal activities, beyond what is usually regarded as the employer’s legitimate domain – that is, working hours,” said Farouque.

“There can be circumstances in which your out-of-work conduct can bear on your employment, but to simply make this broad request for a prospective employee or indeed an actual employee to see [their] social media [profile] … would be well beyond the bounds of the employer’s power … In most instances such a request would be regarded as unreasonable.”

This week it was reported that employers in the United States are asking job candidates during the interview process for access to their Facebook and other social media profiles in an effort to vet the personal life of the prospective employee.

While there is no express law in Australia which would prohibit such a request, Farouque said such a situation could potentially breach an agreement between the social media site and the candidate, offend the national privacy principles under the Privacy Act or, in an interview setting, raise discrimination issues with respect to the type of personal information that is commonly revealed within social media profiles.

“There might be terms of agreement between the social media site and the employee about what they can and can’t do in relation to giving people access. So effectively, asking a prospective employee in an interview to hand over their password to a social media site might breach a term of that agreement,” he explained.

“Principle 1.1.2 [of the National Privacy Principles] effectively says that an organisation can collect personal information only by lawful and fair means and not in an unreasonably intrusive way … So a request which is put to a prospective employer in a context of an interview saying, ‘Give me access to your Facebook site, give me your password’, would offend that privacy principle and a person can make a complaint to the Privacy Commissioner and they might be able to get some recourse about that.”