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On Monday, August 6, 2012 by Katie Anderson posted in Employment Law Blog
Do you require employees or applicants to provide access to the otherwise private portions of their social media pages? While it certainly helps to know what a person is posting (“This company is the WORST!”) and when they’re posting (“Well, its 5:00 SOMEWHERE!!”), employers should heed the dangers lurking in the murky waters of “Facebook fishing.”

When an employee takes the bait, what risks does an employer run?

Requiring employees to give access to this type of information may create more problems than benefits, for reasons far too numerous to fully discuss. But remember some of the more important arguments against “Facebook fishing:”

1. It is illegal in some states.
Commentators compare looking at someone’s postings to traipsing through their home. While this seems a stretch, many people do believe that what they post onto the billion-person internet is still “private.”

Along these lines, Illinois and Maryland ban employers from requesting passwords and other social media information from employees and prospective employees. Notably, the Illinois law does not prevent employers from having workplace policies to limit an employee’s use of the employer’s equipment to access social media at any time or to limit an employee accessing social media while at work.

2. You may get more information than what you wanted.
Even if it is lawful to gain access, once you obtain additional information (especially about an applicant), you are charged with that knowledge and cannot use it to unlawfully discriminate. What if you turn down an applicant who posted a picture of himself holding his “Happy 50th Birthday!” card while wearing a yarmulke? Now you may be in the not-so-enviable position of showing that you did not consider his age or religion in your decision. You also better be sure that you’ve asked everyone for social media access, and not just him.

3. You may get more responsibility than what you wanted.
Employers usually want access to social media postings in order to protect company business interests. But, you may end up having to protect more interests than you planned. Suppose an employee posts threats of physical violence towards co-workers and then shows up to work with a weapon? What about one employee harassing another employee online by commenting on conduct in the workplace? If you access employee postings, but failed to notice or act on these particular posts, you might be found negligent and liable for the consequences.

4. The NLRB might not like it.
The National Labor Relations Board enforces the Wagner Act, which protects workers’ rights to join together to improve wages or working conditions. Employees communicating to effectuate those purposes are protected. Recently, the NLRB has brought enforcement actions against employers for violating this protection. The result is you need to think twice before disciplining an employee for using social media to discuss work conditions. While a post such as “I hate my stinky-breath boss” may warrant little protection, a post such as “my boss’ sexual innuendos make me feel uncomfortable - if you feel this way too, please ‘like’ this post so we can work together to expose him” is probably within the protected realm.

5. Public employees have 1st Amendment protections.
Oh, and just in case Constitutional rights haven’t crossed your mind lately, don’t forget that public employers cannot limit their workers from speaking on topics of public concern. Governmental entities have to be particularly careful about what social media speech they attempt to restrict or punish.

Tips for Employers who Cast their Nets into the Social Media Waters

Despite the risks, some employers will continue demanding access to social media sites. If you are one of them, always consider the following:
* access similarly situated personnel’s information with the same frequency;
* limit the access to an upper-level employee who doesn’t hire or fire, but will merely report on concerning activity;
* establish procedures on when and why social media postings will be reviewed and potential job consequences for certain types of information;
* share those procedures openly and honestly with all employees and prospective employees; and, most importantly,
* consult legal counsel before taking action on information posted on a social media website.

And finally, if you do find something fishy, don’t buy it hook, line, and sinker. Follow-up to find the truth before reacting to the information.
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