Hidden among the flotsam in the recent Tea Party tidal wave of mostly ALEC legislation shoved through the Michigan legislature in the last minute lame-duck frenzy earlier this month, we find a bill to prohibit employers from snooping on worker/job applicant social media. HB 5523 imposes penalties of up to 93 days in jail and a $1,000 fine as the price for employer snooping.
Last April, when the issue of facebook password privacy was in the news, Democracy Tree did a little sleuthing on the issue, and found that there already exist plenty of legal privacy protections which readily apply to social media — but that doesn’t necessarily mean a new law is a bad idea.
In fact, this law may be one of the few gems Michigan’s 96th legislature produced.
Facebook, Twitter, Tumblr….they’ve become ubiquitous to modern life. In fact, to not have a social media presence is actually a sign of being behind the times to many employers. Social media skills are fast becoming a job requirement in many fields.
Yet, less than half of employers track social media at all — 39 percent of them admit to following the online activity of job applicants on occasion, with only 9 percent of them snooping on a regular basis. Given the flurry of legislative fixes, one would think it’s a widespread practice.
Since it’s so easy to do, why are so few companies engaging in Internet voyeurism? And why do we need a specific law at all?
Employers generally tread lightly in social cyber space for good reason. Existing law is simply not on their side. Title VII of the Civil Rights Act of 1964 specifically prohibits certain forms of discrimination. As required under the guidelines of the Equal Employment Opportunity Commission, employers are compelled to adhere to the following:
“As a rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job…inquiries about organizations, clubs, societies, and lodges of which the applicant may be a member or any other questions, which may indicate the applicant’s race, sex, national origin, disability, status, age, religion, color or ancestry if answered should generally be avoided…employers should not ask for a photograph of an applicant”.
National labor law specialist, Larry LaSusa, asserts that between our Constitution and the Civil Rights Act of 1964, we currently have all the necessary tools to deter and litigate employer abuses of improper social media snooping without enacting new laws. He is not alone in this view. Most of his colleagues believe that it is not productive to attempt to legislate-away the problem because, as technology continues to evolve in new and unexpected ways, lawmakers simply can not anticipate, nor keep pace with, the changes as they occur. LaSusa says “Litigation deals with concrete issues, it’s not like legislating in the abstract.” He objects to the various quick-fix initiatives currently working their way through state legislatures across the nation as being nothing more than a solution looking for a problem. LaSusa, who has clients in 38 states, says he has yet to hear from one of them on this specific issue.
However, when litigation does occur, most lawyers generally prefer to cite an established body of case law, and there’s not a lot of it out there yet where it comes to social media and employment. Rare is the attorney who will take-on a plaintiff with a unique situation that has not previously been successfully argued elsewhere. So, looking to legal counsel for protection is not always an option for wronged individuals no matter how much civil law is on their side. Attorneys don’t like sailing uncharted waters — legal pioneers, they are not.
Thus, a reasonable case can be made for a new law that specifically criminalizes the practice. There exists precious little precedent in civil law to provide adequate legal protection.
One precedent on the social media issue is the 2009 case of Pietrylo v. Hillstone Restaurant Group in which two employees were fired after complaining about management on a password-protected MySpace page. The employer pressured a third employee to divulge her password which gave them access to the disparaging remarks. The employees sued and won their case by jury trial, citing the Stored Communications Act, which prohibits third parties from accessing electronically stored communications, such as found in email and social media, without proper authorization.
The Stored Communications Act of 1986 is a law designed in particular to accommodate and keep-up with changing technology. It is meant to dovetail with fourth amendment right to privacy protections as they apply to modern times. In the successfully argued Pietrylo case it gave the plaintiffs a law to hang their hat on, and to bolster the confidence of their legal counsel — because it addresses the issue with some specificity.
Unless an employer has been living under a rock, or possibly in North Korea, they can reasonably expect to find, on facebook and other social media sites, a photograph of the job-applicant/employee, along with their date of birth, religious and political affiliations, “relationship” status, sexual orientation, and group memberships and affiliations. When employers intentionally set-out to poke around on the Internet, they don’t know the specifics of what they will find, but they do know what categories of information they may encounter. Thus they run the risk of learning things employers are prohibited from seeking under Title VII protections. Most labor law attorneys, including LaSusa, advise clients that social media snooping is not a good employment practice, ever — it’s an invitation to unnecessary liability exposure. Additionally, it creates an atmosphere of distrust between management and employees.
There is a special warning for employers in the public sector — they can run afoul of Section 7 of the Labor Relations Act, which protects employees’ rights to participate in labor organizations. Social media plays a siginificant a role in union activities, communications, and organization. Public employers trolling the cyber lives of their employees, many of whom are union members, are just asking for trouble. Additionally, imposing policy restrictions on their personal (not at work) media usage, as a condition of employment, could be argued as an attempt to curtail the communications of organized labor.
Competent labor law specialists would never recommend for their clients to snoop on their current or potential employees’ private email sent through their personal computers, nor ask for their email passwords. Truly, that’s a no-brainer — these kinds of communications are strictly off-limits, and in a court of law, juries would severely punish that kind of intrusion…..Enter the facebook “message” function — a private person-to-person communication similar to email, but with one important difference — facebook messaging is intended to be even more private than traditional email. Email can be forwarded, and often is without permission of the original sender. But facebook messages do not have that forwarding capacity. They are not designed to be shared.
Therefore, when an employer asks for a facebook password it becomes tantamount to a much more intursive and illegal request for access to private communications — a law suit waiting to happen.
What can we expect moving forward?
As in Michigan, individual state legislatures are scrambling to shore-up their respective bodies of compiled law to accomodate social media issues as they relate to employment. And the mainstream media will continue to overstate dire warnings about using caution with social media, citing fluke cases that are not representative of the vast majority of employers.
Relax, you are protected.
Amy Kerr Hardin This article also appears in Voters Legislative Transparency Project