Best Ohio Employment Attorney Answer: Do I have a right to privacy for my Facebook activity? Can I lose a job opportunity because of my social media account? Can I sue a potential employer for demanding my online passwords?
Nearly 665 million users login to Facebook on a daily basis to update their relationship status, communicate with family members, and even network for new job opportunities. Facebook’s status as the largest social networking site presents opportunities and setbacks for the employer and employee alike. This does not include other social media websites such as LinkedIn or Google+. For the employer, it is a convenient vehicle to use to stay connected to old clients, reach out to new ones, and as a recruitment tool to target the millennial generation of social media savvy employees. For an employee, it is a chance to network for new job opportunities, and for the less scurrilous ones, vent about their frustrations at their current workplace.
What happens on the Internet stays on the Internet. And, unlike Las Vegas, that is not a good thing. Whether or not you delete a post, make a post private, or even deactivate your account altogether, the internet has an uncanny knack to save, archive, and even rebuild destroyed information you placed online. This makes it imperative for job applicants to have complete control over their online presence.
Forty-eight percent of employers surveyed admitted to using Facebook to screen prospective applicants. We do. Employers now routinely ask prospective employees to provide access to their Facebook account; agree to sign non-disparagement agreements, and even “friend” human resource department managers to allow them to monitor social networking posts. We do not do that. The new trend has many applicants taken aback and scratching their heads, wondering whether or not requesting social media information is a breach of their right to privacy.
Unfortunately for employees, requesting Facebook information is not an illegal hiring practice nor does it breach any expectation of privacy in the majority of states. California, Illinois, Michigan, New Jersey, Maryland and Delaware are the only states who currently have statutes prohibiting employers for requesting access to an employee’s social media accounts as a term of employment. This does not mean that the employer cannot access what is publicly displayed on the internet. For residents in all other states, including Ohio, the law does not prohibit the request by potential employers for social media access so long as the request is not made for discriminatory purposes.
A hiring practice is illegal only if it relates to the applicant’s membership in a protected class such as race, religion, age, disability, gender, or national origin. (ex. Employers hiring candidates of a certain race because of the racial attributes of their clients is illegal and violates Title VII of the Civil Rights Act of 1964). A hiring practice is also illegal if it is a neutral policy that has a disproportionately negative effect on one of the aforementioned protected individuals. While you may not have a claim for demanding your password, this does not mean that potential employers can use the information that they find with impunity. For example, a potential employer cannot use a picture of your recent ultrasound and not hire you because you are pregnant. This is pregnancy discrimination. Similarly, if you belong to a Jewish networking group, the potential employer cannot use this information as a basis for religious discrimination. Potential employers cannot ask you during an interview if you are pregnant or what your religion is. I suspect that there may be a lot of risk moving forward to employers by seeking access to such information online, even if they come across such information without intent. For example, if an arguably less qualified male was hired over a woman after the employer saw was pregnant on her Facebook page, you better be damn straight that is a claim that we would be willing to take and at least get into suit to do more discovery.
But, let’s look beyond employment laws for a second. Facebook’s Statement of Rights and Responsibilities provides: “You will not share your password (or in the case of developers, yours secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.” As such, you can tell the potential employer that Facebook will not allow you to do this, and refuse. Of course, this would still put you in the position of probably not getting the job and having no recourse.
A potential employer’s access to online accounts may also be under the Stored Communications Act. 18 U.S. Code § 2701. Specifically, signing on to an applicant’s social media account requires that the employer represent to the account provider that they are the applicant and, in so doing, that employer would gain unauthorized access to the electronic communications stored by the account provider (such as Facebook). Now, the problem is that the applicant would not have a claim against the potential employer because the applicant gave permission to access the information. This does not mean that the employer is in the clear. I could see two claims that could rise out of this conduct. First, Facebook and other providers would have claims under the Stored Communications Act against individuals that sign in under false pretenses. But, let’s be honest, Facebook is not going to spend its time pursuing these claims. The second possible claim may be a little more realistic, although I have yet to see it happen. Signing on as the applicant allows the employer access to private data (pictures, posts, and other communications) of other users that chose to make the data private to only that user’s friends or within certain circles. Stated another way, the employer is not only signing on and getting the applicant’s private information, but also the private information of the individuals on the other side of the conversation. Absent all the pictures being selfies, the employer would be looking at private pictures that show other people or that other people posted privately. The potential employer would be gaining access to this information while pretending to be the applicant. In this situation, the applicant’s friends or those in his or her circle would have a claim against the snooping employer. So, if you do not get the job, just get all of your friends to sue.
However, the best course of action for any job applicant searching for new opportunities in the age of social media may be to deactivate their social media accounts if there is a remote chance their social activity can be viewed in a negative light by a prospective employer. At the very least, also make your pages private. Most importantly, think twice before you click on the “post” button on your social medial account or you may change your status in the future to “unemployed.”
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