In the last decade the use of social media has grown exponentially, and with it, a wide array of legal and ethical issues have emerged that employers must grapple with on a daily basis. Many of these evolving issues have not been addressed by the Courts or the Legislature, leaving employers to guess what is permissible or create unique solutions to bypass what might be an otherwise trying legal dilemma.
One issue employers are often faced with is what, if anything, can they do to discipline or terminate an employee for what they say or do on social media. Can you be fired for posting a political rant? What about racially insensitive commentary? Or how about just badmouthing your boss? What if the rant took place when you were at home versus at work? Does it matter if your name is easily associated with the company? What if your last name is not listed on your Facebook account at all? The simple answer for now is that we don’t know the answer to most of the legal questions surrounding social media because the Courts have not caught up to the technology or the legal issues surrounding its use.
Until a more clear backdrop exists, employers will continue to find new ways to “short-circuit” the uncertainty. Sometimes this strategy works, and sometimes it backfires. For example, a growing number of employers have sought to bypass potential social media problems by asking for every potential employee’s Facebook and Twitter passwords upfront – often on the job application itself. Reports have even surfaced of employers asking applicants to log into their accounts during the interview to allow the interviewer to browse the applicant’s profile during the interview. Such a request surely puts the job applicant in a bind – even if they have nothing to hide, the applicant may not wish to hand over such private information, though failing to do so may cost a qualified applicant a job.
Whether gaining access to an employee’s Facebook page really heads off any legal issues for the employer is anyone’s guess. There are potential downsides, however. For example, what if an employer discovers that an applicant is a member of a protected class by gaining access to their social media account? Even if the employer chooses not to hire the applicant for a valid reason, the employer may have opened themselves up to a discrimination lawsuit just by discovering the information. Personal information such as race, nationality, religion and age are often displayed on one’s Facebook profile – and all are protected by federal employment law.
The good news is employers may not have to wait on the Courts to answer every question. In response to the growing trend of asking for Facebook passwords, a bill was introduced in the Senate last week known as the Password Protection Act. This Act would prevent employers from conditioning employment based on the applicant’s surrendering of access to password protected accounts. The Act would also prevent employers from discriminating or retaliating against existing employees who refuse to provide the information.
The Password Protection Act is interesting for a couple reasons. First, the bill itself may put a stop to all employer requests for password-protected information which has become a growing trend, though it may raise more legal concerns than it answers. Second, and more importantly in the grand scheme of things, this type of legislation is more proactive than we usually see in an area of law that is still developing. The Legislature can certainly act more swiftly than the Courts to draw explicit lines concerning what is permissible employer conduct. Will Congress continue to push to the forefront on issues surrounding social media law? If so, we may have answers to many unresolved legal issues in social media law sooner rather than later. How this Act is received – and if it ultimately is passed – may help pave the way for further legislation in this budding legal area. This bill is worth keeping an eye on – both for clarity on asking for employee passwords, and for the larger issue of social media law and how it evolves from here.