Between 80 and 90 percent of U.S. employers admit to using social media to vet applicants or to monitor current employees’ activities and postings. A growing number ask applicants for their Facebook or other social media passwords, or require that they log onto their social media account from the company’s computer, thus capturing the password. Sometimes this is done for background check and Fair Credit Reporting Act purposes. Nevertheless, employers may face legal claims if they misuse the information obtained from applicants’ or employees’ social media accounts or use it without adequate permission or consent.

Discrimination claims are a real possibility. Postings, pictures, and messages from “friends” on Facebook and other social media may reveal the account owner’s race, ethnicity, religion, sexual orientation, age, marital status, disability, or other protected status. And although the employer may not use this information to make a hiring, retention or discipline decision, the mere fact that the employer has the information can pose problems if a lawsuit is filed. Furthermore, accessing the accounts of some applicants, but not others, could lead to discrimination claims.

Claims based on public policy violations are also a potential risk, particularly in states such as California, New Jersey, and New York that protect an employee’s right to engage in lawful off-work activities, such as political campaigns, recreational activities, and even smoking. Individuals routinely discuss their political views and their off-work activities on social media through words and pictures. Here again, even if the employer does not actually use this information, having access to it can create legal exposure.

Invasion of privacy or related statutory claims are also a potential avenue for redress for employees if the employer requires the applicant to provide a social media password as a condition of moving through the hiring process. Social media users choose which information to make public and which to reserve to a part of their account that is private and reserved for “friends.” Asking for a password, or requiring the employee to accept the employer or a supervisor as a “friend,” could lead to invasion of privacy claims. Additionally, requiring the applicant or employee to provide the password could potentially lead to claims under the Stored Communications Act, as a New Jersey company learned when a jury found that the employer obtained an employee’s password by coercion, even though she provided it at the employer’s request.

On the flip side, if the employer consults social media for some but not all jobs, it could be creating a negligent hiring claim for itself. A pattern of social media checking that is not followed consistently could be used as evidence that the employer had a duty to check every applicant or employee. Careful reference checking, and for some positions, background checks, are a routine part of the hiring process, and if done by experienced staff, consultants, or background checking companies social media checks may reveal useful and relevant, information, that complements that which is obtained from the applicant’s routine files or history. The Fair Credit Reporting Act and state background check laws may require explicit disclosures and consent to do so if a third party company is engaged for those checks, including of social media.

Finally, employer review of social media accounts can create employee morale problems. In tight economic times, keeping employee morale and productivity high is even more important because financial rewards or incentives are scarce. In fact, the National Labor Relations Act protects employee “gripes” about work issues under certain circumstances; employer attempts to discipline employees who used Facebook or other social media to commiserate with co-workers about working conditions at their jobs were found to violate the NLRA’s protection for employees’ “concerted activities.”

All in all, using social media to vet applicants or to monitor employees may pose significant problems and requires a sound risk reduction plan. Employers should tread carefully and consistently when considering what information to collect, and where and how to lawfully obtain it.

 

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