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Senate Measure Would Limit Employer View of Social Media

Posted by Brad MacDougall on May 23, 2014 2:51:00 PM

The Massachusetts Senate yesterday joined a growing list of government regulators wading into the issue of employer access to the social media accounts of job applicants and employees. 

Social MediaAn amendment to the Fiscal Year 2015 budget passed by the Senate would prohibit employers from collecting the social media passwords of job applicants or current employees. The measure would exempt from the ban companies required by federal law and the Securities and Exchange Commission to monitor the social media activity of certain staff members.

The action comes in the wake of national studies showing that between 10 percent and one-third of U.S. employers searched social networks such as Facebook, Twitter and LinkedIn for information about job applicants. It also comes as the National Labor Relations Board issues sometimes contradictory guidance about the ability of employers to discipline employees who post derogatory information on social media.

Reaction among Massachusetts employers to the Senate bill has so far been muted. Tom Jones, Vice President of the Employers Resource Group at Associated Industries of Massachusetts, says many of the AIM-member employers with whom he speaks rely on general Internet searches that may link to an applicant's social media accounts instead of direct reviews of social media.

“At the same time, most employers have not yet had the opportunity to review the Senate amendment. We’ll see what the reaction is moving forward,” Jones said.

The proposal would make it unlawful for an employer to do any of the following:

  • require, request, suggest, or cause an employee or applicant to disclose a user name, password or any other means for access, or provide access through a user name or password, to a personal social media account or service;
  • compel an employee or applicant, as a condition of employment or consideration for employment, to add anyone, including the employer or their agent, to the employee or applicant’s list of contacts associated with a personal social media account or service; or
  • take or threaten any adverse action against an employee or applicant for refusing to disclose any information specified in clause (a) of this section or for refusing to add the employer to a list of contacts associated with a social media account or service, as specified in clause (b) of this section.

Employers who violated the law would be subject to criminal prosecution through the Office of the Attorney General.  Employees bringing civil actions under the measure would be eligible for treble damages for any lost wages and benefits. Prospective or active students claiming to be harmed would have the option of a private right of action through civil court.

Companies that employ social-media reviews argue that they are important elements of pre-employment due diligence. These companies use social media to search for unprofessional behavior, to confirm professional and academic claims on a resume, or to uncover evidence of risky or dangerous activity.

But Jones warns that the practice may leave employers open to accusations of violating the Massachusetts privacy law or using a candidate’s protected class membership as a basis not to hire. Even if people don't explicitly discuss sensitive information online or post embarrassing photos, Jones says, workers might accuse an employer of being influenced by telltale clues of a protected status - quotes from a religious text or mention of a baby registry that may suggest a woman is pregnant or has young children.

Some employers also review the on-line activities of current employees for evidence of company policy violations such as posting confidential information, posting during work hours, boasting of inappropriate behavior at work such as drinking or romantic activities, or information regarding union sympathies.

The ability of employers to discipline workers who post disparaging information about the company, its customers or managers has so far been limited by the labor-friendly National Labor Relations Board. The NLRB has generally ruled that the National Labor Relations Act treats social media as a 'protected, concerted' activity in which employees may legally engage as long as the sppech concerns terms and conditions of employment.

The NLRB’s position has sometimes been difficult to follow. In a May 2012 guidance memorandum, Acting General Counsel Solomon concluded that when employees are posting personal opinions on the Internet, they should add a disclaimer stating something to the effect of “the postings on this site are my own and do not necessarily reflect the view of [Employer].” In April, however, in The Kroger Co. of Michigan, an NLRB administrative law judge found that the rule requiring a disclaimer unduly burdened legitimate Section 7 communications.

The state Senate bill on login credentials now goes to the House-Senate conference committee hammering out a final budget agreement. Observers say the provision is unlikely to survive the committee deliberations.

Please contact Brad MacDougall, Vice President of Government Affairs, [email protected], if you have comments or questions on the Senate budget amendment.

Topics: Employment Law, National Labor Relations Board, Human Resources, Social Media

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