Steven J. Richardson
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Bankruptcy, Collections, Student Loan, DUI and Traffic Court attorney in Woodbury, NJ.

I was a bit surprised to hear that Congress did not pass a bill that would have prevented employers from demanding Facebook passwords from their employees. The legislation, proposed by Congressman Ed Perlmutter, would have added new restrictions to FCC rules that would have prohibited employers from demanding employees' social networking usernames and passwords. Had it passed, this amendment would have added an extra section to the FCC's Process Reform Act of 2012,which would allow the FCC to step in to stop any employers who asked applicants for this confidential information.

Facebook itself even spoke out on this issue, reminding employers that not only was this a violation of Facebook’s Statement of Rights and Responsibilities, it could also lead to things like discrimination complaints, for example. The issue is not dead, however, since states can always enact their own legislation, and in the U.S. Senate, senators are asking the Justice Department and the Equal Employment Opportunity Commission to begin investigations into the matter of employers demanding Facebook passwords.

Meanwhile, back in the real world, this is causing a privacy problem. Kimberly Hester, a teacher’s aide at an elementary school, was fired last year for refusing to give her Facebook password to her supervisors. She is now fighting a legal battle with the school district.

It started in April 2011, when Hester was using Facebook on her own time (when she wasn’t working at the school). She jokingly posted a picture of a co-worker’s pants around her ankles and a pair of shoes, with the caption “Thinking of you.” A parent and Facebook friend of Hester’s saw the photo and complained to the school. A few days later, the school's superintendent asked her three times for access to her Facebook account, and she refused each time. As a result, she was put on paid administrative leave, and later suspended.

On one level, this is yet another cautionary tale of how people need to be circumspect when it comes to what they post on social media. Once it is out there, it is out there. The person that complained was not the employer, but one of Hester's Facebook friends! This woman intentionally (or without thinking it through) shared it with a parent of a child at that school. The employer here was trying to look into it itself in response to a complaint.

On another, it is another layer of intrusion on our private lives. As it is, employers or potential employers are screening people based on social media content, but that is where the media account owner does not lock down the security properly, thus allowing these private things to be seen by strangers. Now, employers are demanding full access in an attempt to crash through the walls of privacy and security.

What do you think? Should Congress have passed this law? Should states do it? Or should employers have access to this sort of information? After all, if you didn't want people to see it, you should not have posted it. Leave your comments below.

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