Stay Out of My Face(Book)!

Bryan Beauman
Sturgill Turner
Lexington, KY

May employers require applicants to provide access to Facebook pages?  Can an HR investigation rely upon social media photos obtained through such access to discipline an employee?  A small but growing number of states now say “no” after Congress recently attempted to enter the field

Screening employee applicants and monitoring or investigating employees on social media platforms pose a host of legal complications for institutions.  While public agencies face a myriad of First Amendment implications, even private institutions can just as easily be caught in these legal snares. 

A strong case can be made that conduct offered for all to see on the internet is fair game to consider in making employment decisions.  Employers are concerned about exercising due diligence in their hiring and certainly may screen to gather available job-related information, discover negative behavior reflecting immaturity or lack of professionalism (or even criminal conduct) and examine for misrepresentations (experience, credentials, etc.).  Driving this concern is potential exposure for negligent hiring claims. The employer’s social media “snoop” may also discover that employees are discussing the institution’s proprietary information or otherwise confidential information protected by FERPA or other statutes.  Certainly, proper corrective action is needed in those circumstances.

Yet, requiring or accessing employee social media pages may create unintended liability.  The search may yield information that the employee or applicant is a member of a protected class, which was previously unknown, ultimately exposing the institution to discrimination claims.  A number of other issues arise in the consistency of the search among candidates.  Adding to this disarray are legislative responses, accompanied by private causes of action, designed to thwart an employer’s demand for access. 

Most recently, Michigan’s internet privacy protection act prohibits employers and educational institutions from asking for access to private internet or email accounts including social networks.  The statute mandates that an employer shall not discipline any employee or fail to hire any applicant who fails to grant such access.  Important exceptions apply including whether the accounts or equipment are owned by the employer.  The statute’s proscriptions are inapplicable if the investigation concerns the employee’s activity in compliance with other controlling law or the propriety or confidential information of the employer or institution.  Further, employers are not restricted from viewing or utilizing information available in the public domain.

Michigan joins California, Delaware, Maryland, New Jersey and Illinois who offer somewhat similar protections.  Several other states have pre-filed legislation for 2013.

Even though this trend takes direct aim at those employers or educational institutions requiring social media access, there is already some historical basis for avoiding this practice.  The Stored Communication Act prohibits, among other things, unauthorized access to password-protected e-mail accounts or social networking groups.  Of course, courts have some disagreement about the scope of the Act holding some snooping permissible while at other times snooping is not.   Other federal and state statutes may also provide protection for the employee.

With the proliferation (and perhaps dependency) on social media outlets in daily life, consider reviewing and updating your internet usage and social media policy.  A sound policy clearly addresses terms, conditions and expectations for use of school technology.  The policy should set guidelines and parameters for searches on applicants and employees which clearly informs employees of potential searches, the reasons why and the potential consequences if inappropriate material is discovered.  Be aware, though, of the legal warning about the limits of such policies that have been issued by governmental bodies like the NLRB. 

When screening applicants, do not violate a website’s user controls or terms of use or look into things that are not publicly accessible.  Likewise, when monitoring or investigating employees, conduct searches in-house by someone who is not the decision-maker, verify any information that may become a substantial basis for an employment decision and access only information that is publicly available.  Do not punish for the exercise of free speech, create fake profiles or pry into privileged communications.  If disciplining an employee, give notice of discipline for inappropriate social networking conduct and ensure there is a “nexus” between the conduct and the job.  A number of other sound controls should be implemented in your policy and contact your attorney to conduct a thoughtful review of your specific needs and concerns.

Otherwise, invading My-Space may lead to trouble.

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