Let’s face it: social networking has us “all atwitter.” At any given moment, whether we’re on the subway or in our cubicle, we can like, post, poke, share, tweet, DM, pin, snap, yik yak, link, yo, and instagram with just about anyone with access to the internet. A recent global survey shows that the average person has five social media accounts and spends approximately one hour and forty minutes browsing these networks every day, accounting for twenty-eight percent of the total time spent on the internet. That’s a lot of tweeting. Accordingly, many employers are curious as to what we are posting and when we are posting. Other employers want to take advantage of social media marketing opportunities by requiring their employees to use personal social media accounts as billboards for the business. In response, some states have passed legislation to protect individual privacy and curb an employer’s access to employee and job applicant social media information.
In 2012, Maryland became the first state to prohibit employers from requiring workers and prospective employees to disclose their user names and passwords to Facebook, Twitter, and other personal social media accounts. Maryland’s law started a trend.
In the years that followed, seventeen other states enacted laws restricting employer access to personal social media accounts: Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin. In the past six months, Connecticut, Montana, and Virginia joined this group of states that prohibit an employer from requiring or requesting a current or prospective employee to disclose the username and password to the employee’s personal social media account. These laws are praised by many as both a safeguard for employee privacy and a protection against employers being subject to new legal duties, liabilities, and compliance costs.
In the last two months, Maryland and Oregon acted to become more protective of social media privacy-- finding new areas of social media use to protect.
For example, Maryland extended its existing social media privacy protections for students attending public or private colleges in the state. In May, Maryland Governor Larry Hogan (R) signed a new law protecting students’ private social media accounts from the reach of university administrators. Similar to the 2012 law protecting employees, this law prohibits college officials from requiring or asking students to grant access to their private social media accounts. The law went into effect last month, and applies to both current students and prospective college applicants. The law acts as both a shield and a sword: colleges are protected from liability for student posts, but students have legal grounds to sue their college if officials break the rules.
In Oregon, Governor Kate Brown (D) signed a bill last month that expands the protections of the state’s social media law. The amendment takes effect January 2016, and prevents employers from:
(1) Requiring or requesting that a job applicant or employee establish or maintain a personal social media account;
(2) Requiring that an applicant or employee authorize the employer to advertise on his or her personal social account; or
(3) Taking (or threatening to take) adverse action against an applicant or employee for failing to establish or maintain a personal social media account.
The amendment does not cover social media accounts that are in any way related to a business purpose of the employer, or that are provided, or paid for, by the employer. So if ZSH Corp. wants to require applicant A to manage ZSH's company twitter account, that's okay. But if applicant A has his own twitter account she uses exclusively for personal purposes, ZSH Corp. cannot require her to use that account to promote the business. Thus, “personal social media account” means just that: accounts used exclusively for personal purposes.
Right now, it is too early to tell if Oregon’s amendment will inspire other states to expand their social media protections. But one can already see that the developing trend is in favor of more privacy protections when it comes to social media.
Even though the personal accounts of employees and students are protected from employer access via username and password in some states, it is still possible for employers to see what those employees publicly post. Employers should be cautious in viewing employee’s public accounts, however, especially during the hiring process. Current law allows an employer to use search engines to look up prospective employees. But if you choose to google, here are some questions to keep in mind:
Are you running the search consistently for all applicants at the same point in the hiring process?
• Are you conducting the social media check after a prospective employee’s interview?
• If a prospective employee is rejected for legal reasons based on the social media check, are you documenting those reasons?
• Does your company have an internal policy on social media checks, and are you following it?
Additionally, employers should be mindful of the FCRA requirements for background checks.
Social media privacy laws continue to evolve with each passing year. Businesses should watch these developments while recognizing that the law increasingly views employees as the master of their social media accounts. Asking employees to hand over their username and password crosses the line in over twenty states, and soon, we could find the same protections expanded nationally to students. Businesses should start planning now to accommodate the developing social media law trends and draft their workplace policies accordingly. And if you’re a business considering whether to ask an employee or job applicant for her social media login credentials, take a step back and remember that a little bird tweeted that it might not be a good idea.