Can Businesses Access Employees’ Social Media Accounts?

Can Businesses Access Employees’ Social Media Accounts?

Employee's Social Media AccountNearly every week, it seems that there’s a new article in the media about someone embarrassing their employer by using their personal social media accounts in questionable ways.

Just in the past few months,

  • An Applebee’s employee uploaded a stingy customer’s receipt to the internet to publicly humiliate them in front of a worldwide audience
  • A barista at a Seattle coffee shop created a popular blog to mock his employer’s customers
  • A Kentucky Fried Chicken employee posted a Facebook photo of herself licking customers’ food

Some companies might consider demanding access to employees’ social media accounts to prevent this kind of bad publicity — but can they do that?  And what are the risks?

Legislation blocking companies’ access to employees’ social media accounts:

In April 2012, Maryland became the first state to enact legislation barring employers from requiring employees and job applicants to provide their social media passwords.  Similar legislation is now moving forward in Olympia.

  • Senate Bill 5211 prohibits employers from requiring, as a condition of employment, an employee or job seeker from providing a password or account information.
  • Employers may still obtain information that is in the public domain.
  • The legislation allows employees to bring civil actions, which could result in an award of $500, plus damages and attorney fees.

The bill is moving right along, and looks like it may very well pass.  Similar federal legislation has been introduced in Washington, DC.

Is this solving a real, or just a perceived, problem?

A few weeks ago, I was in Olympia with HR professionals from around the state.  We were asked to raise our hands if we had ever asked an employee or job seeker for their social media password.  Not one hand went up.  But clearly, lawmakers think this is a problem in need of a solution.

How companies utilize social media info in employment decisions:

A 2012 survey by CareerBuilder revealed that 37% of companies use social networking sites to research job candidates, and another 11% planned to start doing so.

What were employers looking for?  They reported they were primarily looking to see if the candidate was professional, would fit in well with their company’s culture, and was qualified for the job.

When employers found information that led them to not hire the candidate, what was the nature of the info?  It tended to be inappropriate photos, information about drinking or drugs, poor communication skills or negativity towards a former employer.

What social media info made employers decide to hire candidates?  29% of the employers said they discovered information that helped them decide to hire the candidate.  In these cases, the positive info revealed the candidate’s personality and professionalism, confirmed their qualifications, showed they had a well-rounded background, and displayed their communication skills.

Nevertheless, we still don’t know how many companies are requiring employees or job seekers to provide them with their social media passwords, versus glimpsing what already exists in the public domain.  Certainly anecdotal stories exist, but it’s hard to find case studies, surveys, or lawsuits to back them up.

The expectation of privacy in social media & what this means for businesses:

State and federal legislation is leaning towards creating an expectation of privacy in social media posts.

This is important for businesses, because employers may become privy to information that they don’t have the right to know, and which can then become the basis for a claim of discrimination or retaliation.

Here are a few examples.

  • A Facebook review of a prospective job seeker reveals that the individual is in the Military Reserves.  You decide not to hire them because you are concerned they could become deployed, leaving you short handed.  You have now violated both federal and state laws protecting military personnel and veterans.
  • You check out a job applicant’s social media page and see that they’re part of the high school graduating class of 1965.  You had no idea they were that old, and decide not to hire them, as they might only be planning to work for another couple years.  You’ve violated the Age Discrimation in Employment Act. 
  • You check out one of your employees on Facebook and realize that they are in a same sex relationship.  This doesn’t sit well with your personal beliefs, so you terminate them.  You’re now violating state anti-discrimination laws.  

All of the hypothetical situations above are examples of information we do not have the right to ask a job seeker or an employee.  Peeking at someone’s personal life via their social media accounts can be a dangerous pastime, as it opens us up to claims of retaliation and/or discrimination.

The wrap-up:

Up until now, we haven’t been able to listen in when our employees talked to their friends and families after work hours.  We haven’t been able to see what they’re doing in their leisure time.  And we haven’t been able to satisfy our prurient curiosities about them without them knowing.

Social media has turned the expectation of privacy on its head, and threatens the basis of trust in our employer-employee relationship.

  • We must take a step back and ask ourselves, “What kind of work environment do we want to create, and what kind of relationship do we wish to have with our staff?” 
  • If we do believe we have the right to intrude on our employees’ personal lives via their social media accounts, will they still want to work for us, and what will that working relationship be like?

Furthermore, would demanding the log-in information to employees’ social media accounts really prevent embarrassing incidents like Applebee’s Receipt-Gate, or deter employees from creating anonymous blogs to mock customers?  In all likelihood, these things would have happened anyway.

Employers are probably better off focusing on clearly communicating their expectations of acceptable employee conduct, rather than potentially breeding resentment by intruding on workers’ lives via their social media accounts.