Access to Employee Social Media

Employer to Job Applicant – Give me full access to your social media accounts!

It is becoming common practice for some employers to screen job applicants by reviewing social media sites such as Facebook or Twitter or to monitor employee’s
behavior on these sites. Many of these sites have privacy settings which allow users to limit access to their personal profiles and postings on their accounts. Not being able to review potential employees’ Facebook pages or Twitter accounts, employers have begun requiring job applicants to disclose their social media passwords or provide full access to their accounts during the interview process.

There is much controversy stirring up not only in the media but in several State Houses as well as in Congress. Several federal lawmakers have requested the U.S.
Department of Justice to investigate whether this employer practice violates any federal statutes, such as the Stored Communications Act or Computer Fraud and
Abuse Act and many states have proposed legislation which would prohibit this employer practice.

There are many diverse opinions surrounding social media privacy and the workplace. There are those who maintain that employers are justified in conducting
social media background checks in an effort to protect their business risk. The other side of the social media “coin” argues that job applicants should not have to
choose between pursuing a job opportunity and sharing sensitive personal information. Facebook issued a statement opposing the practice of employer-mandated access to social media as an intrusion of privacy.

What impact social media has on labor and employment law and whether the state legislatures or governmental agencies will regulate an employer’s use of social media remains to be seen. In any case, employers need to exercise caution in using social media as a human resources tool for conducting background checks. These social media checks should be used in a consistent manner to sure that any pre-employment inquiry about a candidate is purely job-related to avoid the risk of discrimination claims.

Employers tapping into a candidate’s social media account could discover information about the candidate that it was not intending to view such as age, religion, nationality, ethnicity, marital status or sexual orientation. All information should be independently verified before an employment or personnel decision is made.

One final caution, employers should continue to be aware of the NLRB’s position on social media which increases the potential for unfair labor practice charges for both union and non-union employers.

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