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Employers Should Think Twice Before Looking At Social Media Accounts Of Employees And Prospective Employees

Published by and on January 18, 2018

Currently, about half of the states have passed laws limiting an employer’s ability to search personal social media accounts of both employees and prospective employees.

Three job candidates are left in the last round of the selection process for a position at ABC Company. In an effort to learn more about each remaining candidate, the hiring manager sends a “Friend Request” to each candidate on Facebook, so that she may access their private Facebook profiles. Some employers may be surprised to learn that such behavior is prohibited in certain states.

In fact, about half of the states currently have laws that provide varying restrictions on an employer’s ability to access the social media accounts, and other private, online accounts, of its employees and applicants. Generally, these laws broadly define what qualifies as a social media, or personal, online, account but do not cover social media accounts used for business purposes of the employer.

Under these laws, employers are typically restricted from requesting or requiring that employees or applicants provide their login information (such as a username or password) for private, online accounts, such as social media accounts, so that the employer may access these accounts. Employers may also not require the employees or applicants to access their accounts in the employer’s presence or “Friend” a certain individual or the employer so that the employer may see the account. Most of these laws prohibit employers from retaliating against an individual for refusing to comply with a request that violates the law or for otherwise exercising their rights under the law.

These social media laws, however, do often provide exceptions to these prohibitions and delineate actions employers are permitted to take. Generally, employers may access private, online employee or applicant accounts in the course of an investigation, when the employer has specific information about activity on the personal account relating to a potential violation of law or regulation, workplace misconduct, or an unauthorized transfer of confidential or proprietary employer information. Employers may also request login information for an employer-provided device or account.

Furthermore, employers may monitor employees’ use of its own network and may restrict use of personal, online accounts and the Internet during business hours. Finally, these laws usually do not affect an employer’s duty to screen employees or applicants under other laws, such as securities laws. The enforcement provisions vary under each law—-some laws allow civil penalties to be collected from employers for violations; some allow an employee to bring a civil action in court, while others allow both avenues of relief. Employers may also access information about an employee or applicant that is available in the public domain, although there may be implications under ban-the-box laws, and if a third party is used to do the background research, the Fair Credit Reporting Act and similar state laws may be triggered.

Looking at personal, online accounts of employees and applicants can also expose an employer to liability under other laws, beyond these laws that specifically address liability for accessing social media accounts. Employers could potentially face liability if they learn information from their social media searches relating to a protected characteristic of an individual. For example, in 2010, the University of Kentucky settled a religious discrimination case after a professor claimed he was passed over for a job because of certain religious views he expressed on his personal website. Gaskell v. Univ. of Kentucky, No. CIV.A.09-244- KSF, 2010 WL 4867630 (E.D. Ky. Nov. 3, 2010). Thus, employers may not be able to make good-faith defenses that they were not aware of a protected characteristic if they learned of it while searching the individual’s social media accounts.

Welter Insight

Employers who are interested in looking at private, online accounts, including social media websites, of their employees or applicants should be aware of laws in their jurisdictions restricting or prohibiting such conduct. The constantly increasing presence and use of social media, and the fact that most of these laws have been passed in the past five or six years, indicates that more jurisdictions will likely pass similar laws restricting an employer’s ability to search social media accounts in the near future. Even if there is no law that specifically restricts an employer’s ability to access private, online accounts, employers should weigh the risks of liability with the benefits of what they could potentially learn by accessing these accounts.

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