Prohibiting Employer Monitoring of Employees’ Social Networking Accounts

By Kevin Mills

It seems that in recent years, there has been an increase in the number of news reports lauding law enforcement for using social networking sites to help catch criminals.  It’s often entertaining to hear about criminals posting self-incriminating evidence online, creating “LinkedIn to locked up” scenarios.  However, when employers (or potential employers) use similar investigation tactics with regard to employees (or potential employees) it is an entirely different matter; increasingly, state and federal governments have grown alarmed with employers’ practice of requesting access to current and prospective employee social media accounts for investigative purposes, and they are moving to put an end to such practices.

In April 2012, Maryland became the first state to enact a law aimed at prohibiting employers from requiring current and prospective employees to provide employers with access to their social media accounts.  Maryland recognized the need for such laws when the ACLU filed a lawsuit after a job interviewer for the State Corrections Department asked a job applicant to provide his social network passwords and then logged on to the applicant’s Facebook account and reviewed his messages, wall posts, and photos.  The ACLU alleged that the conduct violated the Stored Communications Act, the First Amendment, and the Fourteenth Amendment, and constituted an invasion of privacy. The State defended its policy, stating that it needed to check job applicants’ Facebook pages in order to ensure that the applicants were not engaging in any gang-related activities.

In response, the Maryland legislature moved quickly and became the first state to enact a statute expressly prohibiting employers from requesting or requiring the disclosure of usernames or passwords to personal social media accounts. The statute also prohibits employers from taking (or threatening to take) any disciplinary action against employees or job applicants who refuse to disclose such information.

Over the course of the past few months, several other states, including New York, California, and Illinois (effective January 1, 2013), have followed Maryland’s lead and passed legislation similar to Maryland’s.  Additionally, Delaware, Michigan, Minnesota, New Jersey, Texas, and  Washington have all proposed similar laws.

The Federal Government has also taken steps to implement similar measures. In April 2012 the Social Networking Online Protection Act was introduced in the House. The Act would prohibit employers from requiring current or prospective employees to provide their usernames or passwords to access online content.  In the Senate, the Password Protection Act of 2012 was introduced, with provisions similar to the House bill.  In addition, Richard Blumenthal (D-CT) and Charles Schumer (D-NY) have requested that the Department of Justice and the EEOC launch a federal investigation into these practices.

Employers and business owners should remain abreast of these developments.  Even if a particular state does not affirmatively ban an employer from requesting social media passwords, employers should still proceed with caution because the practice of requesting social media passwords may give rise to liability (including a potential violation of employee Section 7 rights under the National Labor Relations Act).

Businesses will have to learn how to address these types of social media issues.  According to a recent survey by the Poneman Institute, only 35% of companies have a social media policy and only a fraction of those companies actually enforce them.  One thing is clear:  to be safe, Businesses that currently ask employees or applicants to provide them with access to social media accounts should consider ending the practice.

It should also be noted that there are other potential liabilities arising out of an employer viewing a current or prospective employee’s social media accounts and protected social media content (viewing publicly-available information is not currently prohibited by any of the pending state and federal statutes).  For example, what if an employer encounters the following when doing a background check on a prospective employee: “On the wagon, been sober for one whole month!” or “Having a bad day…looking to take it out on someone…WATCH OUT WORLD!”  Issues raised by an employer’s knowledge of these posts are beyond the scope of this piece, but they certainly do have the potential for raising important employment law issues.

 

Kevin Mills is an owner of the law firm of Kaye & Mills where his practice focuses on advising clients with transactions across a full range of issues in entertainment, media, technology, Internet and general business. His practice encompasses copyright; trademark; trade dress; trade secret; brand protection; content creation, protection and distribution; and general corporate, organizational and business matters.

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