Thursday, February 14, 2013

Social Media and Privacy for Employees and Employers

As we enter a new year and welcome a fresh start in 2013, it is evident that the majority of us use some form of social media now, whether it is Facebook, Twitter, LinkedIn or another platform. Social media provides an abundance of reasons for people to engage.  People are able to reconnect, to network, to share current events, pictures and commonalities.  Social media is not without its disadvantages: studies show that people have become addicted and are “living” more on the internet than in reality.  The article, The Dark Side of Facebook: “10 Reasons to be Careful”  highlights negative effects for social media users in relation to their job.  Employees have been spending a lot of time on social media sites versus working, which they may not realize is monitored by their employer.  Additionally, a lawsuit emerged in which one employee made disparaging remarks about her boss on Facebook and was subsequently terminated.  This case has settled due to the overbearing restrictions in the Employee handbook.  NLRB's "Facebook Firing" Case Against AMR Settles, posted on February 10, 2011 by Brian Hall

Social media has proven to be problematic for employers as well.  If an employee is spending time on a social media site rather than doing his or her job, this is obviously costing the employer revenue.  Further, with the multitude of “pop-up” advertisements, employees are sometimes duped into clicking on a prompt unintentionally which can lead to a virus, again costing the employer money.

Not surprisingly, some employers are attempting to utilize social media to their advantage as a manner in which to check-out the employee or screen the prospective employee. If an employer can look at an employee’s “page” or social media presence then the employer is arguably gaining insight into the personality or character of the employee or prospective employee.  That aforementioned insight is exactly the problem, because “insight” of this type runs parallel to the fine line of privacy invasion.  This privacy encroachment is more evident when the employee’s page or social media information is not public and the employer asks for the individual’s password.  Such conduct begs the question of whether requesting an employee’s password is legal?  The answer is, yes -  as of this writing nothing specifically prevents an employer from requesting an employee’s password here in Pennsylvania.  However, Maryland has recently passed a bill which prohibits employers from requesting passwords from an employee to a social media site.

It is well known that labor law prohibits employers from asking certain questions of their employees or certain questions to a prospective employee during an interview.  The reason for this is to discourage workplace discrimination.  A problem exists when an employer requests a Facebook password thereby entitling them to privileged and private information otherwise not accessible. Should an employer later terminate an employee, and had access to private information from social media the employee potentially has an argument based on discrimination for something learned from social media.  Employers should have the applicant or employee sign a release and waiver to access such information.  

Do the pros outweigh the cons for requesting an employee’s passwords?  In my opinion they do not. First, the employer risks losing out on a qualified employee when during the interview process the request for a password is made and the employee does not comply and chooses to pursue another job. Second, as mentioned in the preceding paragraph, the potential for a discrimination suit greatly increases with the ability to learn of personal information.

What should you do if you, a Pennsylvania employee, are asked to produce your password for a social media site?  That answer is not straightforward and depends on your specific situation.  In the cases when you are interviewing for a job, given the economy and lack of jobs you may decide that your privacy takes a back seat to securing a job.  However, you may also feel that if an employer requests this from you, that company may not be the environment in which you desire to work.  If you are currently employed as an at-will employee, without an employment contract or collective bargaining agreement, and your employer requests your password, there is no statute in this Commonwealth that would prohibit the employer from terminating you if you declined to provide your password.

The bottom line is as an employer you should seriously consider whether you want to request social media passwords and speak to an attorney to be advised as to the possible repercussions prior to doing so.  Employees or prospective employees, similarly, may wish to consult with counsel to obtain a better understanding of their own rights.

1 comment:

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