This blog article is part of a series on Employment and Social Media. Part 1 covers the right of an employer to directly request an employee’s social media access information–such as user names and passwords–in order to gain direct access to their accounts for information; Part 2 covers the limitations imposed by the Stored Communications Act (SCA) on the access and use by an employer of employee private social media information; and Part 3 covers the use by an employer of employee group discussions publicly posted online, including social media.
According to the Pew Research Center, about 73 % of adults in the United States use social media. For example, Facebook had about 160 million daily users in the United States and Canada in March of 2015, Twitter users sent out an average of 115 million tweets a day in the United States alone, and LinkedIn reported a membership of 380 million by the second quarter of 2015.
Consequently, the amount of job applicants rejected and employees fired from their jobs over their social media posts is rapidly increasing, as employers scrutinize individuals’ online presence before making employment decisions. This type of employer inquiry has been a basis for controversy and is a potential trigger for employer liability. In addition, when employees share information about their work on social media, they may find themselves out of a job.
Social Media Protection Laws
Although at least eighteen states have passed laws banning employers from requesting the social media logins and passwords of employees and job applicants, the attempts to pass similar laws in Florida have failed to date. The bills introduced in Florida (H.B. 635 and S.B. 186) centered on protecting the privacy of employees and prospective employees, as well as prohibiting and penalizing employer retaliatory behavior and violations. However, the business community opposed the legislation on the basis of its potential to increase employer liability, even in situations where the employer has a legitimate business reason to secure the employee social media information.
Employers May not Use Social Media Information to Discriminate
Although, at the time of this writing, Florida employers can request job applicants and employees to provide username and password information to their social media accounts, under current federal and state law, employers may not use the information obtained from these accounts to discriminate against applicants or employees on the basis of disabilities, race or color, gender, national origin, religion, age, or genetic information. In addition, the federal bankruptcy law bans an employer from discriminating against an individual based on bankruptcy. Florida law also protects employees and job applicants from discrimination on the basis of race, color, religion, sex, national origin, age, handicap, marital status, and sickle-cell trait.[1]
Therefore, any employer action towards an employee or job applicant based on the access to (and use of) social media information will be closely scrutinized to ensure that the employer’s action was undertaken for a lawful purpose. For example, if an employer uses the social media information to make an employment decision resulting in the exclusion of members of particular groups from employment, the actions can be regarded as evidence of discrimination.
Must abide by Fair Credit Reporting Act
Employers must also be mindful of the Fair Credit Reporting Act (FCRA) employee or job applicant background screening requirements.[2] Under FCRA, the access to (and use of) a person’s background information (not just their credit information) is subject to federal and state laws. For example, employers must secure the applicant’s written permission prior to obtaining a background check for employment purposes. In most cases, employers may access and use information only if it is relevant to the job. Consistent with anti-discrimination laws, although employers may use the information to make hiring decisions, they may not illegally discriminate based on the information obtained.
Best practices
Florida employers must still abide by federal, state, and local anti-discrimination laws when requesting and using social media account information from employees and job applicants. Employers should consult knowledgeable employment counsel when developing and implementing their social media policies. In addition, employees and job applicants should be aware of the rights and limitations levied on employers when they seek to access and use their social media information. They will benefit from the advise of counsel prior to releasing information or bringing a claim against an employer.
Whether you are an employer, employee, or independent contractor, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a social media information access situation and offer competent legal representation, if necessary. Click here to contact an attorney now.
[1] The federal prohibitions can be found in the Americans with Disabilities Act, the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. The state prohibitions can be found in the Florida Civil Rights Act. There may also be local ordinances banning discrimination. For more information, see the blog articles addressing the different types of employment discrimination.
[2] For additional information, see the Employment Background Checks blog article.