Social networking is everywhere. It is rare for anyone in the workforce to not have at least a Facebook or LinkedIn account. Many employers are convinced that access to these accounts will provide tons of valuable information on prospective employees, so much so that some employers have now begun asking potential hires for passwords to their social networking accounts. While many applicants acquiesce out of fear of losing out to other candidates, there is starting to be some significant political pushback. Two states, Illinois and Maryland, have passed laws barring employers from asking job applicants to provide passwords to their online accounts. Washington, Delaware and New Jersey are currently considering similar bans. And two U.S. Senators have asked the U.S. Department of Justice to review whether employer requests for passwords are legal.

Asking for passwords is legal in Wisconsin—for now. But is it wise? Employers can obtain information about religious beliefs, sexual orientation, and political beliefs from social media sites. Without such information, employers often have good defenses to discrimination suits. They can assert that they had no knowledge of the protected classification and therefore could not have discriminated on the basis of that classification. Having the knowledge potentially available on the social networking site takes this defense away from the employer. Employers should give careful consideration as to whether the usefulness of the information that may be learned online outweighs the increased risk of potential discrimination suits.

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