Social Media Privacy in Employment

Summary: As more employers use social media to evaluate a job candidate, it is raising questions of privacy rights of employees across various states.

Background

For years, job applications have been comprehensive, with employers requiring a plethora of information from the candidate. In the digital age, employers have access to a treasure trove of personal information: social media. It has become common practice for employers to look into one’s social media records. In 2008, about 34 percent of employers used social media in the hiring process. By 2013, this percentage jumped to 77 percent. A simple Google search can provide a mountain of information about someone–good and bad. It is entirely legal for an employer to do online research on a job candidate, however, an employer could go further and infringe on privacy rights. These types of laws vary greatly between states.

What an Employer Can Do

There is no law at the federal or state level that prevents an employer from using social media records in the job application process. If an employer discovers information that harms the candidate’s reputation or demonstrates a candidate’s impropriety for a job, they may take it into account in the hiring process. However, if an employer uses one’s social media reputation to bar employment, they need to be ready to prove that it is not due to discriminatory practices.

What an Employer Cannot Do

While an employer can legally search for online information about a candidate’s personal life, some of the discovered information cannot be used in determining employment. At the federal level, an employer cannot discriminate against a job candidate’s race, religion, sex, color, and nationality. Additionally, a candidate’s disability cannot be used to determine employment due to the Americans With Disabilities Act of 1990. At the state level, there are added discrimination protection laws that would bar certain information from being taken into account.

As social media became widespread in the 2000’s, employers began to seek out job candidate’s online profiles, even going as far as demanding account information. Reports of employers demanding social media usernames and passwords began to draw attention from state legislators in the early 2010’s. The first state to act was Washington, which passed Senate Bill 6637 on April 11, 2012. This bill prevented employers from forcing a candidate to hand over private social media information. Others followed suit, with 14 states introducing similar legislation that year but only six states enacting it into law: California, Delaware, Illinois, Maryland, Michigan, and New Jersey. In 2013, the number of states introducing legislation dramatically increased to 36, with 10 passing legislation.

Currently, 26 states plus the District of Columbia and Guam protect a job candidate from being forced to hand over usernames and passwords associated with social media. Therefore, in 24 states, an employer can mandate a job applicant to provide information originally intended to be private.

Since this area of law is relatively new, states are still adapting. While it is true that only 26 states protect one’s private social media information from employers, it does not mean that the other 24 states are not trying to accomplish the same. Many states have a bill pending, such as Minnesota’s House Bill 2116 and Hawaii’s House Bill 814. Others, however, have denied these bills from being enacted into law, such as Missouri’s House Bill 564 and Florida’s Senate Bill 186 which was killed by the Judiciary Committee.

Of the 26 states that protect private social media information from employers, 16 have enacted similar laws that prevent educational institutions such as public and private universities from requiring students and applicants to provide private social media passwords and usernames.

What About Employee Dismissals?

Once an employee is hired, they can be dismissed by an employer due to social media activity that shows flaws in character or inability to fulfill the occupation. But, an employee is protected under federal law from termination if social media posts are considered “concerted activity.” Federal labor laws, such as the National Labor Relations Act, protect employees from dismissals over speech regarding unions, poor working conditions, etc. Today, this 1935 act is still constantly used and examined in legal matters.

On April 21, 2017, the United States Court of Appeals ruled on a case where an employee was dismissed for posting expletives towards his boss and calling for unionization on social media. The decision by the Second Circuit Court in National Labor Relations Board v. Pier Sixty LLC was a win for the employee. They ruled the corporation that fired him could not do so due to federal labor laws.

Conclusion

Social media protection in employment can vary greatly by state. Since 2012, the majority of states have at least introduced legislation on the matter, but approval of such legislation has been a difficult process for many. As society still adjusts to this digital age, the laws on this subject will adapt and states without current legislation will be pressured into enacting laws.

Jacob Turobiner is Trinity freshman from Calabasas, CA, majoring in Political Science.

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