More States Ban Social Media Snooping

In an age​​​ where people often share their most private thoughts online—without first considering who will see them—lawmakers and experts say states are leading the charge to safeguard individual privacy rights since the federal government has yet to step in. 

On Aug. 1, 2014, New Hampshire became the 18th state in the country—the sixth this year—to bar employers from requesting access to the personal social media accounts of present or prospective employees. Similar legislation has either been introduced or is pending in at least 28 states, according to the National Conference of State Legislatures.

So far, six states (Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and Wisconsin) have passed social media privacy laws this year. Maryland was the first state to pass such a law, back in 2012.

​​“There have already been two attempts to pass a federal social media workplace privacy law. Both stalled out,” said Eric Meyer, a labor attorney with Dilworth Paxson LLP in Philadelphia, in an interview with SHRM Online. While “it’s possible we may see a federal law someday,” he said, “the odds decrease as states continue to pass laws, and regulate this on their own.”

Social Media Screening

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According to the Society for Human Resource Management’s (SHRM’s) research from 2013, very few HR professionals (20 percent) use social media to screen applicants​​​​​​—that is, visit their publicly available postings on sites like Facebook, Twitter, LinkedIn or Google Plus+. The majority (74 percent) said they were concerned with legal risks such as discovering protected characteristics like age or religious affiliation. Sixty-three percent said the information on social media sites may not be a good predictor of performance or potential, and 61 percent didn’t think the information was relevant to whether or not the applicant would blend in well with the organization.

The laws that states are passing prohibit employers from asking job candidates and current employees for their login information, including passwords, to those social media sites. Such sites can show how job candidates behave online or what employees have shared when they think no one who matters is reading.

Experts say that for a number of reasons, it’s not a best practice to either ask for personal login information or read anyone’s private social media postings with or without their knowledge.

See Some Evil

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“One of the toughest aspects within social media is context. Often when we see things, it can be hard to understand the context for which it was shared,” said Sharlyn Lauby, president of HR consultancy ITM Group Inc. in southern Florida, in an interview with SHRM Online. Lauby, who writes the ​HR Bartender ​​ blog, is also a member of SHRM’s Ethics/Corporate Social Responsibility and Sustainability Special Expertise Panel. “If an employer is looking at someone’s social media presence, they need to realize that they might not be looking at the entire conversation or history. An employer might jump to conclusions about a person without the full story.”

For that very reason, lawmakers too are weighing in.

“Fifty years ago, if somebody brought in a stack of personal correspondence and put it in their locker, the employer wouldn’t demand to see it,” Oklahoma State Sen. Kyle Loveless, a Republican, ​​told USA Today. Loveless sponsored the law in his state that was signed in May. “In today’s time, people put [personal correspondence] online. An employer shouldn’t have the right to see it.”

In testimony earlier this year before the Equal Employment Opportunity Commission on behalf of SHRM, Philadelphia labor attorney Jonathan Segal said, “I believe the potential … concern for employers that do screen using social media and online searches is clear: An employer may learn information about a candidate’s protected group,” and other private information. “For example, on Facebook, some employees post personal information, such as medical or family problems,” Segal, a partner with Duane Morris LLP, said to EEOC commissioners.

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He told commissioners to “keep in mind that there can be valuable information on a candidate’s social media page, posting, etc., that an employer lawfully can consider. Individuals have posted everything from pictures of themselves wearing little clothing to racist rants. I have heard it said there are only two times when a person is perfect: birth and the job interview. Social media is but one way to enhance the background check to determine whether a candidate should be hired.”

Pay Some Fines

Even so, some states now have laws that bar employers, schools, colleges, teachers and coaches from requiring employees and students to allow them to read what’s in their social media accounts. What’s more, some laws not only prohibit employers from seeking access to personal social media postings, they also ban employers from retaliating against those who refuse to give up their passwords. In some cases, forcing someone to reveal social media postings is a punishable offense, and fines reportedly range from $500 to $1,000.

But is that enough?

“The law will always trail social media and technology,” Meyer said. “It’s too hard to predict what technological advances may engender a need to have laws to regulate employers. For now, I’d say that there is nothing new on the horizon with respect to employer access to employee social media beyond what is currently being batted around.”  

Take Care How You Share

Research group eMarketer reports that last year there were 1.73 billion social media users worldwide and predicts that by 2018, 2.55 billion people worldwide will use such sites. As most people use social media (73 percent do, according to the Pew Research Center), attorney John Riccione, a managing partner with the Chicago firm of Aronberg Goldgehn, offers these do’s (for employers) and don’ts (for employees) on social media in the workplace.

​Employers—do:

• Make sure social media policies are clear and that employees understand what will and will not be tolerated.
  
• Encourage employees to test their privacy settings for social media accounts. Even if information is labeled as “private,” posts can make their way through the Internet grapevine quickly. 
  
• Encourage employees to use their better judgment when creating a post. It is their right to say what they please, but if they don’t want their boss to see what’s posted, then they shouldn’t post it.
  

​​Employers—don't:

• Post anything negatively related to your employer. Even if you are having a bad day at the office, keep your thoughts to yourself. You never know when those words can come back to haunt you.
  
• Gossip about fellow employees on the Internet. “In a competitive workplace, it may be tempting to use social media as a means to lash out about co-workers, but doing so may fall under cyber bullying and can have severe consequences,” Riccione said. This can also make you look bad to future employers.