Is it illegal for an employer to ask an applicant for his or her Facebook password as a condition of employment? That’s a hot question these days. In my last post, I explained that two U.S. Senators recently asked this very question to the Department of Justice. Specifically, they want to know whether this very unpopular practice violates the Stored Communications Act (SCA) or the Computer Fraud and Abuse Act. As described in my last post, the practice may constitute a violation of the SCA.
Are there other possible claims? Perhaps. One possible claim that comes to mind is tortious interference with contract. In Delaware, a claim for tortious interference with contract requires four elements. Let’s run through them and see whether a claim could be made.
Third, the interfering party must intentionally interfere that induces or causes a breach of the contract. By asking that a candidate provide turn over his password, is an employer intentionally inducing the candidate to breach his contract with Facebook? Certainly seems that way.
Fourth, and finally, there must be damages. In other words, the candidate must be harmed by the interference. And here, my friend, is where our winning streak comes to an end. Damages? No, there are none.
I think you’d be hard pressed to show that you were damaged by sharing your Facebook password. Remember, it’s not the failure to hire that counts here–it’s the act that induces the breach of contract. And, in our scenario, the act that induces the breach is the act of “requesting” a candidate’s Facebook password. Trying to establish damages is a tall order that, in my opinion, would be difficult, if not impossible, to satisfy.