Workplace Social Media and Electronic Privacy Rights

Employers provide a number of reasons for monitoring the online activities of their employees. Some argue that they are protecting trade secrets, minimizing liabilities, and ensuring compliance with company regulations. Regardless of why an employer chooses to monitor online activities or access personal accounts, employees do have rights.

The information that could become available through e-mails, search history, or social media accounts could give rise to discrimination. Employees may be at risk of exposing extremely personal information including political or religious affiliation, sexual orientation, or a disability. Access to such information could give rise to illegal discriminatory action.

As technology creates new opportunities for privacy invasion, the law is slowly, but surely keeping up. Both state and federal legislators are developing new laws to limit employer access to private information and to define employee rights regarding background checks, computer monitoring, and social media accounts.

Here are some legal developments in social media and employee privacy rights:

Online and Social Media Network Passwords: Some employers have made it a requirement that interviewing candidates or employees provide passwords to their social media accounts, including Facebook and Twitter. Since 2012, 36 states have enacted or have pending legislation that prohibit these requests. Minnesota has passed a bill that prohibits employers from asking for social network passwords as a condition of employment.

What if employer’s access information without consent? Many employees have been disciplined or discharged for Facebook or other online activity. The Stored Communications Act (SCA) does make it illegal to access stored electronic communications without consent. In the 2010 case (Crispin v. Christian Audiger Inc), the SCA protected Facebook posts that were secured by privacy settings. Employers may also be liable if they are in violation of the National Labor Relations Act (NLRA) for interfering with an employee’s right to discuss terms of employment in a social media forum.

Credit and background checks: Personal information including criminal or credit history can be searched online and through the use of third parties. New regulations in some states prohibit credit history checks unless the information is “substantially job related.” For example credit history may be relevant for a financial services position, but not for a general service job. In December 2013, the Equal Employment for All act was introduced in the Senate. The bill would restrict the use of credit checks when hiring.

Minnesota has also passed the “Ban the Box” law which prohibits employers from asking about criminal history in the initial stages of the hiring process. This law went into effect January 1, 2014. 

Personal device and BYOD: Employers that provide computers, Blackberries, Smartphones and other devices may have access to employee private information. When using a company provided device, employees have limited privacy and employers have broad access to emails and other online activities. “BYOD” or “Bring Your Own Device” is a new trend that may give employees more control over their personal information by using special software the separate personal and business information.

Laws that went into effect on January 1, 2014 as well as pending laws will further define legal behavior when it comes to background checking, computer monitoring and social media account access. While employers may continue to pursue background checks and online monitoring, employees should protect their rights and stay abreast of shifts in the law that secure employee privacy rights.

If you believe that an employer or potential employer has violated your privacy rights or is in violation of a state or federal labor law, we want to discuss your case. For more information or to speak with our attorneys about a workplace privacy violation, please call Baillon Thome Jozwiak & Wanta LLP at 612-252-3570.