Beware! Screening and monitoring employee and potential employee social media accounts may be infringing on individual privacy rights. BLR, Bridget Miller, steps through employer interest in employee social media and the potential risk it can create.
Why might an employer want to see an employee’s social media profiles? There are several reasons, but most boil down to a few things: safety, cultural fit, and adherence to workplace rules. Let’s take a look at each of these and how they relate to employee social media accounts.
What Might Trigger an Employer to Ask About Social Media?
Employers have a duty to keep their employees safe, and most take that responsibility seriously. Typically, this involves both physical safety measures and background checks on employees. Employers want to take steps to ensure that employees brought into the workforce have been vetted and that they do not have a past that might imply they could pose a threat. Employers often use the Internet (including social media) as part of their background checking process.
Besides safety, employers are also often looking to see whether a prospective employee might be a good cultural fit within the organization. Indeed, this elusive idea of “fit” is often touted as being just as—if not more—important than having the right qualifications. Social media seems to be a way that employers could find out more about the individual on a personal level. They can see things like the applicant’s ability to communicate well or how they present themselves publicly.
Adherence to policies and laws is yet another reason why employers might hope to gain access to employee social media accounts. With access, they may assume they will find evidence of things like:
- Harassment or bullying;
- Sharing trade secrets;
- Illegal activity, such as drug use;
- Posting negative, harmful, or confidential things about customers;
- Proof of lies on applications; or
- Other conduct that proves an employee has violated employer policies or has put the employer at risk of liability.
Plenty of Reasons, But Is It Legal?
As we’ve discussed, there are plenty of reasons an employer might think it should view an employee’s social media accounts. But not so fast.
Despite all these seemingly good reasons to look at an employee’s social media pages, using social media in this way has some drawbacks. The primary risk is uncovering information that an employer has no need to know, such as medical information or an employee’s (or applicant’s) inclusion in a protected class. Finding this type of info presents a risk because employer knowledge of such information can lead to claims of discrimination. This is one reason that employers use third-party services when utilizing social media for background checks—it’s risky to know too much. This is also a reason that many employers opt to disallow supervisors and subordinates to “friend” one another on social media.
The next legal risk comes into play if an employer wants to access an employee’s social media accounts directly (i.e., by asking the employee to either divulge his or her password or asking him or her to sign in to private accounts for the employer to view). Many states (not quite half) already have laws making it illegal for employers to require employees to divulge passwords or otherwise give unrestricted access to social media accounts. These laws started proliferating back in 2012 at the state level. As of February 2015, there are not yet any federal laws that enforce such a prohibition. However, the issue has been raised at the federal level, so it’s not inconceivable that a federal law could be in the works in the future.
Last but not least, along with the potential legal pitfalls, employers should also be wary of using social media too much for these purposes—it’s so easy to take something out of context and skew the hiring decision.
**This article does not constitute legal advice. Always consult legal counsel with specific questions.**