Employees on both sides of the Atlantic are checking job candidates’ social networking posts before taking hiring decisions – and Cambridge based international law firm Taylor Vinters is urging a common sense approach.

This is the raw issue. In March, senators Richard Blumenthal and Charles E Schumer sent requests to the Department of Justice and the EEOC asking them to set out clearly whether the practice of asking for job applicants’ social media login details was legal.

The senators described the practice as ‘a disturbing trend’ which could potentially violate US privacy and employment laws, and pointed out that federal courts have already suggested supervisors may be liable for accessing private employee information with login credentials they have requested from their workers. Unhelpfully, however, there is little real guidance from courts on the point, according to James.

In a separate letter, the senators suggested the practice might also fall foul of discrimination legislation, as individuals could have posted their religious views, family history, marital status or other personal information on their accounts which, if requested directly by employers, could lead to a violation of federal discrimination law.

Facebook, considered by many to be the leading social media platform, issued a statement condemning the practice and the company itself prohibits users from asking for each other’s login information or accessing accounts which do not belong to them.

It is thought that this backlash, which has plenty of public support, is likely to inspire Congress and state lawmakers to take action to at least limit the practice.

In light of the recent interest in the issue, the lack of legal certainty around it and the suggestion of moves towards curtailing the practice at a legislative level, the best practice for employers to adopt is probably not to ask potential recruits or employees for their passwords at all unless there are clear and legitimate business reasons for doing so which have been weighed carefully against the risks, including the potential for serious damage to reputation. Otherwise, it just may not be worth it.

James told Business Weekly: “This development highlights the growing practice on both sides of the Atlantic of employers seeking to access social networking sites as part of their recruitment assessments.

“Employees are being naïve if they think information they post on the web is somehow secret or confidential if their privacy settings allow for public access. Employers are naturally going to want to find out about someone before recruiting them.

“There is nothing unlawful on either side of the Atlantic about checking public access parts of Facebook before recruiting someone. Neither is their currently anything unlawful about asking a candidate for his password.

“Whether this is sensible is however a different matter. It goes without saying that employers should not be seeking to crack passwords or access off limits content without consent.”

• PHOTOGRAPH SHOWS: Roger James