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February 14, 2013

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AndyK

Very prevalent and has been in the student-athlete context for a long time. California has a statute against such practice. http://abcnews.go.com/blogs/headlines/2012/12/california-first-to-endorse-comprehensive-social-media-privacy-law/

Amy

California employers cannot ask applicants for social media sign-on information under legislation passed last year in California:
http://abcnews.go.com/blogs/headlines/2012/12/california-first-to-endorse-comprehensive-social-media-privacy-law/

Law text: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1801-1850/ab_1844_bill_20120927_chaptered.html

Calvin Massey

Yet another reason to never create a social network account.

Brian Clarke

I was a management side employment lawyer for many (11+) years prior to moving to academia and I always counseled my clients that asking for employee (or prospective employee) usernames and passwords was an exceedingly bad idea -- even if not unlawful in and of itself. The primary rationale for employer policies on social media usage is to protect the public image of the company in the event an employee posts something that would embarass the company, offend customers and the like. However, if an employee's posts are not public, I could not see any legitimate interest the employer may have in such posts. I also generally counseled employers not to Google propects and not to look on public social media accounts. Doing so would potentially make the employer aware of the prospect's membership in various protected categories that might not be obvious otherwise and thereby eliminate a lack-of-knowledge defense to any discrimination (or even retaliation) claim that employee might make. [Plus, I thought then - and still do - that employees are entitled to have personal lives and that those personal lives are none of the employer's business provided that do not adversely impact the employee's ability to do his/her job.] Also, I wondered (and still do) if there were potential Fair Credit Reporting Act implications of using Google (a third party provider) to obtain information about a prospect that would be used for employment decision making [the FRCA covers employment background checks provided by a third-party to a potential employer].

As noted by others, CA responded to this phenomenon quickly and I recall that one other state (NY? or IL?) has taken similar steps. However, the vast majority of states have done nothing. Likewise, the vast majority of states (like the federal government) provide no protection to employees who are fired/disciplined (or prospects who are not hired) because of social media usage on their personal time. The NLRB's agressive use of Section 7 rights under the NLRA to protect potential concerted activity being the primary exception. Arguably, the "lawful use of lawful products" statutes [generally designed as "smokers rights" statutes] that exist in 9 or 10 states could be expanded to cover on-line activity, but to my knowledge no one has made that argument, at least not to an appellate court. [That may be an article in the not too distant future.]

Jacqueline Lipton

Thanks for all those responses, everyone. I had heard about the CA legislation and some proposals in other states. I'm particularly grateful to Brian for the detailed and thoughtful analysis of his past practice. It confirms the concerns my students raised. While it's obviously a bad idea for employers to be delving into potential employees' personal lives in this way, there seem to be few serious legal detriments to their doing so.

Natalie Pedersen

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