Accessing employee social media: laws and best practices

While employers may monitor their employees’ online activities while at work and on company equipment, accessing employees’ accounts and taking disciplinary action based on employees’ social media presents a minefield to be carefully navigated. This blog will discuss some of those mines and how to avoid them.

Requesting online account login information

Over half the states have enacted laws that prevent employers from requiring or requesting employees or job applicants to provide their login information, including usernames and passwords, for social media accounts. Many of these laws also prohibit employers from requiring an applicant or employee to change their privacy settings, to add specific people, including the employer, as contacts, or to access their account in the employer’s presence. Some prevent employers from requiring the applicant or employee to accept an invitation to join a specific group.

Some of the states that have enacted such laws include Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. These laws generally do not prevent employers from viewing information that is publicly available on the internet. These statutes’ applicability, penalties, and exceptions vary from state to state.

Discrimination

Both state and federal laws protect employees and applicants from discrimination based on protected characteristics which also vary by location. Federal fair employment laws, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, prohibit employment practices that discriminate based on age, race, color, sex, national origin, religion, disability, and genetic information. In many states, other characteristics are also protected, including sexual orientation, gender identity, marital and familial status, human immunodeficiency virus (HIV) status, tobacco and other lawful product use, and political and union activity.

Employers must ensure that any monitoring of social media does not lead to any employment decisions based on protected characteristics. Social media may expose the personal information of an applicant or employee that could lead to unconscious bias in hiring, promotion, discipline, and termination decisions.

National Labor Relations Act

Employers must take care not to take any adverse employment action against job applicants or employees for social media activities that may qualify as protected activity under the National Labor Relations Act. Employees may not be disciplined for discussing wages and other conditions of employment.

The National Labor Relations Board has found that the use of social media can be a form of concerted, protected activity when information about pay, benefits, and working conditions is shared with coworkers or a union. The posted information must have some relation to group action or bring a group complaint to the attention of management. The activity is not protected if an employee posts statements about the employer that are egregiously offensive or knowingly and deliberately false. Publicly disparaging statements about the employer’s products or services are not protected if they are unrelated to a labor controversy.

Employee handbook policy

Employers may notify employees of their permissible social media monitoring practices within their employment contract, if it has one with an employee, or through a policy in its employee handbook, whose receipt should be acknowledged by employees. It might provide that employees may not access social media during work hours or through company equipment, the posting of personal opinions, the use of company intellectual property, or potential conflicts of interest.

As with all policies, the company’s social media policy must be consistently and fairly enforced. For example, if one employee is disciplined for violating the policy, while another is not, that fact might imply that the employer is acting in a discriminatory manner. Should the disciplined employee fall within a class protected by federal or state law, the disciplinary action might be seen as evidence of discrimination.

Tread carefully

While employers may access publicly available social media activity conducted by employees, they must take care not to do so in a manner that violates laws against accessing employee accounts, against discrimination, and against anti-union and anti-organizing behavior. As always, the consistent application of employer policies not only protects the employer but fosters clear expectations and trust among employees.