Today, almost everyone uses social media sites in one form or another. Many of us share personal information, photos, and thoughts online with our virtual social networks. Social media can be a powerful tool for personal expression, networking, community, and an important platform to share information. However, the ubiquity of social media also gives rise to a host of new ethical and legal issues, including issues in the workplace regarding the employees’ use of different internet accounts.
According to surveys, approximately 70% of employers researching job applicants and new hires online. A quick online search will often bring up personal social media pages. Employers report that they tend to reject job candidates when they find references to drinking, drugs, violent imagery, sexually explicit material, or other graphic content on an applicant’s social media page.
Because of the increasingly widespread use of social media and technology, labor law has developed to account for the relationship between social media and the workplace, and protect privacy the privacy of workers.
The law does not prohibit an employer from reviewing an applicant or employee’s social media page. During the hiring process or throughout an employment relationship, an employer can review an applicant or employee’s social media. If a social media page is public, or if the employer follows the page, they can review it.
Some employers ask job applicants to show them their social media accounts or provide username and social media password information when applying for a job. However, many states (not all), have passed legislation prohibiting employers from requesting such information. In California, Labor Code §980, it is illegal for a potential employer to require a job applicant show their social media page, illegal for a potential employer to require login information to a job applicant’s social media account, and illegal for a potential employer to require an applicant to discuss or disclose the content of their social media accounts.
While potential employers and employers can generally review social media pages of job applicants and employees, other employment laws still apply.
Employers may not discriminate against employees. If, for example, a social media post reveals the sexuality of an employee, the religious views of an employee, or the gender identity of an employee, an employer may not discriminate against the employee on the basis of that personal and legally protected information. If an employer discriminates against an employee because of information, they found online, they are breaking basic anti-discrimination labor laws.
There are background check laws that regulate how employers can investigate employees online. If an employer hires, for example, a third party to investigate an employee’s social media presence, the company must abide by the Fair Credit Reporting Act (FCRA). The FCRA sets rules and protections for how a company can conduct background checks, and requires that the company get the applicant or employees written consent.
The law also prohibits employers from taking adverse actions against applicants and employees based on their conduct while not at work, so long as the conduct is legal. For example, and employer may not retaliate against an applicant or employee for posting about their participation in a political movement, or consuming legal products such as alcohol or tobacco.
The National Labor Relations Board (NLRB), is a federal agency that oversees the rights of Americans in the workplace to organize, unionize, and seek better working conditions with their co-workers. The National Labor Relations Act (NLRA) is a federal law that protects the rights of employees to act together to address workplace conditions; the NLRA extends to protect certain social media activity relating to labor conditions. The NLRA protects concerted activity, such as unionizing and organizing efforts, and covers activity that takes place on an employee’s social media account. The NLRA does not protect all social media usage; for example, it may be unlawful to share proprietary information about an employer’s business online.
More than ever, employees work remotely. Due to the increase of individuals working from home, companies have taken to extreme measures to monitor their remote employees, including but not limited, to installing software on corporate laptops to track employee screen activity and computer usage. This practice of monitoring employee activity for productivity and business purposes can constitute a serious privacy act violation.
This virtual intrusion into employee privacy during the workday, which remains largely unregulated, has raised serious privacy concerns. State laws and legislatures differ on the legality of workplace policies regarding screen monitoring. In the spring of 2022, the California Assembly introduced a new bill that would place limitations on remote surveillance by employers. The bill, called the Workplace Technology Accountability Act, would require companies to provide notice to their employees that they are being monitored. The bill also requires employers not to rely solely on surveillance data when making employment-related decisions. The bill is yet to pass into a law but is a meaningful step forward in calling attention to serious privacy concerns that arise from the surveillance of remote workers.
An employer who is monitoring the screens of their employees may view an employees private social media during the course of the workday. An employer could reasonably take a negative employment action against an employee if they know that an employee is on social media during work time.
Regardless of privacy laws or social media policies, it is always a good idea to be thoughtful about what information you are putting online on your social media profiles. Whether or not you are concerned about your employer viewing your page, it is important to consider what you are sharing with the world; sharing overly confidential information or offensive content can get you into trouble generally. This practice extends to all personal social media accounts, including but not limited to Facebook, Twitter, Instagram, LinkedIn, snapchat, and more.
In order to avoid any negative actions from your employer or future employers, you will want to be conscious of what you post online, and be mindful to stay away from violent, or vulgar content. Setting your social media privacy settings to “private” likewise limits the likelihood that someone who you did not intent to be able to view your page will have access.
If you feel that your employer or future employer is violating your workplace privacy rights with regards to social media websites or technology, or discriminating against you because of information that they found online, reach out to an employment attorney. Navruz Avloni is an experienced employment attorney dedicated to fighting for employee rights and for fair and safe working conditions. If you believe you could benefit from speaking with an employment attorney at any point, call the Avloni Law Firm for a free consultation.
Share
Social Media Privacy in The Workplace