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Privacy: Employer Monitoring of Employees' Social Networks

With increasing frequency, press reports laud how law enforcement uses social networking sites to help catch criminals. It's very helpful when criminals post self-incriminating evidence on line creating a (pardon the pun) "LinkedIn to Locked Up" scenario.

However, when employers-or potential employers-try the same thing with regard to employees-or potential employees-it is a different matter. There is a growing trend of state and federal governments to outlaw the practice of requesting access to current and prospective employee social media accounts. Further, there are certain rights under the National Labor Relations Act that apply (in particular, see Section 7 rights), however, this blog entry does not discuss those aspects of the law.

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. Over the past few months, a number of states, as well as the federal government, have been proposing and Enacting such laws

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 and 14th Amendments of the U.S. Constitution and constituted an invasion of privacy. The state defended its policy saying that it needed to check the Facebook pages in order to ensure the applicant was not engaging in any gang-related activity.

In response, the Maryland Legislature moved quickly and become the first state to expressly prohibit 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 applicants who refuse to disclose such information.

In a very short period of time, other states have followed including Illinois (effective January 1, 2013; New York; California. In addition, the states of Delaware, Michigan, Minnesota, New Jersey, Texas and Washington have all proposed similar laws.

The Federal Government has also initiated measures. In April 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 username or password 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 the Department of Justice and the EEOC to launch a federal investigation into these practices.

Even if your state does not affirmatively ban an employer from requesting social media passwords, you should still proceed with caution because the practice may give rise to liability, including a potential violation employee Section 7 rights under the National Labor Relations Act.

Businesses will have to learn how to address 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. Employers who currently ask employees or applicants to provide them with access to social media accounts should consider ending the practice.

It should be mentioned that there are other potential liabilities arising out of an Employer viewing a current or prospective employee's social media accounts. While viewing publicly available information is not currently prohibited by any of the pending state and federal statutes, viewing a current or prospective employee's social media content may still subject the employer to liability.

For example, what if an employer encounters the following when doing a background check on a prospective employee:

"On the wagon, been sober for 1 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 outside the scope of this blog entry but they certainly do have the potential for raising important employment law issues.

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