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Have employers gone too far?

The burgeoning backlash against employer monitoring of employee social media posts.

The past few years HR professionals have been bombarded with dire warnings about the dangers of employee use of social media sites such as Facebook and Twitter.  You’ve been told that your employees can damage your business’s good name and reputation.  You’ve been told that you need to have policies in place to protect against that danger, and you’ve been told to make sure you enforce those policies.

All of that is still true, and is good advice.  Make sure you have a good social media policy in place, and make sure you as the HR professionals take all reasonable steps to follow up on violations of that policy.  That policy should be concrete and narrow.  It should prohibit the dissemination of confidential information, a valid and indeed practical restriction, and it should explain what you mean by confidential information.  If you want to limit who can speak on behalf of the employer to the media, that is wholly acceptable and indeed a good practice.  It can and should also limit the use of the employer’s name by the employee for purposes wholly unrelated to work.  All of these are legitimate exercises of an employer’s discretion to protect its name and reputation.

However, some overzealous employers have attempted to extend their reach to the wholly private postings of both potential and current employees.  The media is replete with references to increasing employer demands for Facebook passwords as a condition of employment.  Of course, for some employers this makes sense, and is rationally connected to on-the-job requirements.  For instance, police and corrections officers could be engaging in off-the-job conduct that would place them or their coworkers at risk in their jobs, and it is eminently reasonable to conduct at least some investigation into off-the-job conduct.  For the average worker, however, their off-the-job conduct has little connection to what happens on the job, and there is very little need to dig into private social media postings. Nevertheless, increasing numbers of employers appear to be routinely requesting access to social media sites as a condition of employment, even when off-the-job conduct has no relation whatsoever to their job responsibilities.  And, outrage over this practice is spilling out into the media.

Interestingly, the most highly publicized case driving the media outrage is one in which the employer had arguable reason to demand access to social media post.  Officer Robert Collins, a nursing student, father and corrections supply officer with the Maryland Department of Public Safety and Correctional Services, returned from a leave of absence following his mother's death and was told that he'd have to hand over his Facebook log in and password if he wanted to be reinstated, and that this was now standard procedure.  In a video produced by the ACLU of Maryland, who took Mr. Collins’ case, Mr. Collins stated: "My personal communications, my personal posts, my personal pictures, looking at my personally identifiable information, where my religious beliefs, my political beliefs, my sexuality — all of these things are possibly disclosed on this page . . .  It's absolute total invasion and overreach."

After the intervention of the ACLU of Maryland, the Maryland Department of Public Safety and Correctional Services suspended its policy.   Before the policy was suspended, however, 2,689 seven candidates out of 2689 were rejected in part because of information found on their social media profiles. Another candidate was rejected for the job solely because of content on a social media profile. That candidate, along with others, used social media profiles that contained images of them showing known gang signs, according to the review.  The practice was used to screen people who would be working in jails for possible illegal activity and gang affiliations.

Notwithstanding the data demonstrating the seemingly legitimate use of social media data by the Department of Public Safety and Correctional Services, in April Maryland became the first state to pass a legislative ban on employers’ request for applicants’ or employees’ social media accounts.  Other state jurisdictions, including Illinois, are also considering bans, as is the U.S. Congress.  Senator Richard Blumenthal of Connecticut and Representative Martin Heinrich of New Mexico introduced the federal Password Protection Act of 2012 in both houses of Congress on May 9, 2012, and Representative Eliot Engel of New York introduced the Social Networking Online Protection Act (“SNOPA”) in the House of Representatives on April 27, 2012.  Both bills seek to ban employers and schools from seeking private social media posts for use in the hiring, enrollment, or discipline process.  It is unclear whether these bills will ultimately pass, but there does appear to be some level of bipartisan support for the bills.

So what should the prudent HR professional do in light of the pending legislation?  Thoroughly and thoughtfully assess your workplace’s legitimate needs for private social media postings.  If there is a true legitimate need, carefully craft a policy that allows you to obtain the information needed while requesting the least amount of information possible.  Narrow, carefully-tailored requests are much easier to justify than broad, scattershot information grabs.

If there is no legitimate need, don’t ask for it.  Period.  And, for most employers, there is no legitimate need to make such a request.  Furthermore, you don’t need the headaches the request can cause, such as becoming liable for information, such as criminal or harassing behavior, that you could discover when reviewing employee profiles, and you don’t need to create ill will among your current and potential employees.  Bottom line?  Let what’s private stay private.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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