Social Media and Employment Decisions

Recently, a number of states have enacted social media privacy laws which extend to hiring and employment. Such legislation (which has been introduced, is pending, or has been signed into law in at least 35 states) limit, or prohibit, employer access to personal accounts of employees and prospective employees.

For example, Arkansas House Bill 1901 prohibits employers from requiring an employee or prospective employee to: (1) submit account information in order to gain access to the individual’s social networking website account or profile, (2) add employer personnel such as supervisors or administrators to the list of contacts associated with the account, or (3) change privacy settings. In many cases, employers may not retaliate against employees or refuse to hire applicants who exercise their rights under this law.  From March through June, California, Illinois, Maryland, Michigan, New Mexico, Utah, and Washington all added similar legislation. In almost all cases, the laws do not restrict the viewing or using of online information that the employer can obtain without usernames or passwords.

Additionally, a federal law may well be around the corner. In February 2013, the Social Networking Online Protection Act (SNOPA) was reintroduced in Congress and is awaiting action in the House Education and Workforce Committee. If signed into law, SNOPA would prohibit employers from: (1) requiring or requesting that an employee or applicant provide the information needed for accessing a private email or social networking account or (2) retaliating against employees, denying to promote employees, or refusing to hire applicants who refuses to provide such information, files a complaint, or serves as a witness in a related proceeding. Given the attention social media is receiving, and in light of the rapidly changing legal landscape, employers must monitor this area and adjust their practices as needed to ensure compliance.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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