Social media is a constantly changing landscape. Legislative bodies as well as state and federal courts are having to traverse this landscape, creating a patchwork of different laws as these issues are addressed and tested in various jurisdictions.
Some recent issues of note:
Employee’s social media accounts and passwords:
Virginia is now the newest among the growing number of states that forbid employers from requesting their employees’ user names and passwords on private social media accounts. Many states bar employers from asking for passwords from current employees and also during the interview and hiring process.
Virginia’s ruling is not universal. Some employers reference access to personal accounts in current employee handbooks.
Other jurisdictions are allowing employers to be given access to social media accounts (if not the passwords) when there is an investigation , particularly is there is a question of an employee leaking confidential or sensitive information.
It is interesting that the user agreements in social media channels often includes a reference to the user not sharing their password with others, so clearly these contravening notions (protecting business interests of the employer versus hewing to a social media user agreement) may become the crux of future litigation and legislation.
Restricting Use of Social Media: Many employers forbid their employees from using social media at the workplace. In addition, several health care employers already demand that their employees not take photographs at work or post them online in order to preclude (even inadvertently) invasion of patients’ privacy rights as required by HIPAA. Other employers have cautioned their employees not to mention the employer or post on their behalf without the permission of management and have included this verbiage in employee handbooks.
Use of Social Media in Hiring: While we regularly hear that college admissions staff check potential applicants’ social media postings, such a practice in hiring is risky and could result in litigation. There is a great deal more information to be found on people’s social media accounts than in their resumes, including perhaps their race, sexual orientation, marital status, age as well as religious and political affiliations, not to mention their general appearance such as height and weight. Therefore, checking these channels could be construed as discriminatory hiring practices. Michigan employers are often safest to conduct these online searches after an offer has already been made and to conduct any online background checks such as these consistently, for each and every employee.
Social media is everywhere. But employers would be wise to be proactive and consider their employees’ usage of social media and how its use potentially impacts the workplace, thereby creating effective and legal workplace policies.