States and Feds Moving to Block Employer Access to Social Media

16 April 2012 Labor & Employment Law Perspectives Blog
Authors: John F. Birmingham Jr

Employers are increasing the review of applicants’ social media sites as part of their standard hiring processes. A 2009 poll revealed that as many as 45 percent of employers regularly screen applicants through social media sites such as Facebook and Twitter, and many of these employers have declined to hire candidates because the sites contained provocative or inappropriate photographs, drinking or drug use, negative comments about prior employers, discriminatory comments, and so forth. While laws like the Electronic Communications Privacy Act require permission to access sites and government organizations such as the NLRB have policed discipline based upon social media activity, no state has banned the review of applicants’ social media sites until now.

On April 9, 2012, in response to protests from organizations ranging from Facebook itself to the ACLU, Maryland became the first state to prohibit an employer from asking applicants and employees for their passwords to access their social media sites. The Act also prohibits discipline for refusing to provide the passwords. Legislators in Washington, New Jersey, and California also have introduced similar bills. At the federal level, two congressmen have proposed legislation and Senators Chuck Schumer (D-N.Y.) and Richard Blumenthal (D-Conn.) have asked the EEOC and U.S. Department of Justice to address this issue.

Employers — both those who believe they can learn valuable, unvarnished information about applicants through social media and those who review such sites to protect trade secrets or prevent sexual harassment — are set to clash with the government and its efforts to protect privacy. As social media has become a dominant method of communication, particularly for younger applicants and employees, expect this area to be a battleground for these competing interests.

Maryland has spoken, but other states have no blanket ban that precludes the review of social media sites in selecting employees. However, in addition to applying this screening tool in a consistent, non-discriminatory fashion and obtaining permission from applicants and employees before accessing the social media sites, prudent employers constantly must keep apprised of legislative and regulatory changes in different jurisdictions that restrain or ban the practice.

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