And the Social Media Ban plays on…
California is the newest state to pass a law on Social Media Access
Along with Maryland and Illinois, California is the newest state to pass a law that prevents an employer from asking for employee passwords and user names on their personal accounts. It also prohibits an employer from retaliating against an employee or prospective employee who does not provide this information. Currently New Jersey is also close to passing a similar law.
As reported in our previous on this subject, employers want this information to help detect fraud or other legal problems that may show up on social media like Facebook, Linkedin, Twitter, etc. Legislators are concerned about employers gaining access to other information that is expressly prohibited such as age, race, religion, etc. It is also conceivable that an employer who has this information regarding a current employee can run afoul of information they are not allowed to access such as protected health information.
Consider the employee who posted on their Facebook account that he was just diagnosed with 4th stage Cancer. If an employer discovers this and then contacts the employee to offer assistance by reminding them of the company’s FMLA procedures, the employer may in fact be in violation of HIPAA Privacy Regulations. But failure to notify the employee of their FMLA rights or when the employee is absent for treatments, not designating the intermittent leave as an FMLA incident, can also cause problems.
Imagine the lawsuit should you terminate an employee who argues that you used information from their personal Social Media Account to retaliate against them. Finally some people use their social media to link to personal accounts such as bank accounts or other personal financial information. The requirement that an employee or potential employee provide their user name and password becomes even more problematic.
On its face, it seems an easy way to avoid a problem with the law is to simply not ask a prospective employee or current employee for this information. But what happens if as part of your company uses social media to provide various customer service options. Can you require an employee for a ‘business’ user name and password?
Many employees now actually use Social Media for ‘business’ purposes to either handle Customer Inquiries and/or even creating Blogs for the company. So it would seem logical that an employer would need the user name and password so they can monitor what is being posted and should the employee be terminated, the employer can continue to use the account.
Technically, the new laws only prohibit the request for this information on ‘personal’ social media accounts, so there is no problem. But unless an employer can demonstrate that the social media account belongs to the company and not the employee, these laws could create issues if the court views the social media account as being a mixture of personal and professional.
Take the current legal case of where the employer demanded that the former employee provide them with the username and password for various blogs that the employee maintained while employed by Insynq. The employee refused based on the fact that the employee actually owned the material and not the employer (the employee wrote the material). While this case basically is focusing on who owns the written material and/or the actual blog created by the employee while employed by Insynq, it goes to show that the line between what is strictly a ‘business’ social media account and a ‘personal’ social media account can be blurred.
Stay tuned as the lawsuits continue over the use of social media at the workplace. As an employer, it may be wise to review your social media policies at all phases of employment.
- How can recruiters use social media in the hiring process, if at all?
- How should managers, IT Staff and/or supervisors use social media to monitor employees?
- When are employees allowed to use social media while working, both personal and professional
- What are the consequences, if any for employees who use social media to discredit the company
- Identify any social media accounts, including blogs that are company property and ensure that the employee is aware who owns the material and accounts.
- Obtain or better yet, provide the Username and Password to an employee who has to access company owned social medial accounts and blogs
- Ensure that your Social Media Policy is up to date and distributed to all employees
As various states continue to pass laws to protect employees from possible employer abuse using social media, employers should continue to monitor the impact of how social media is used in their company and take appropriate action to minimize the risk.
BCL Systems, Inc.
The source in Human Resources
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