Positives, Pitfalls, and Precautions

Nowadays, social media is more pervasive than ever before. From Facebook and Twitter to Snapchat and Instagram, people choose to live a more public life and share even the most minute details about their day to the social media world. This can often lead to a scenario where you can learn more about someone by looking at his or her social media presence than you can by talking with them. Social media platforms hold a treasure-trove of information about family, friends, neighbors and even employees and co-workers.

However, while social media is a great way to see what an employee’s favorite cat meme is, consider the other potential information land mines that might be out there: political affiliations, union membership, affiliations with certain companies, comments about corporations, educational background, evidence of a disability, evidence of illness in a family member, information about pregnancy, and many other potential buckets of information that can make current and future employers wary. While many individuals are savvy enough to keep their personal online information accessible only to those they approve, many others keep their social media profiles public for the whole world—including employers—to see. Therefore, it is incumbent upon companies and employees alike to know their legal rights when it comes to social media.

If an employer is planning to interview applicants for a position and looks at the applicants’ social media accounts, the employer cannot “unsee” or unlearn whatever information might be discovered. For instance, consider an applicant whose Facebook profile is public and who has posted the following: “Thank you to all my friends who gave donations and came out to the Fight Against Cancer 5k to show their support for mom and grandma!” What has the employer learned by that one post? For starters, perhaps cancer runs in the applicant’s family. The employer now has information about the applicant that it is not permitted by law (the Genetic Information Nondiscrimination Act of 2008) to consider when making a hiring decision. While the employer may not give the information a second thought, if the applicant learns that the employer accessed the Facebook page but did not extend an offer, he or she may question the legality of the employer’s decision. Thus, while it is not illegal for an employer to look at an applicant’s public social media accounts, be aware of the associated pitfalls.

In 2015, the Virginia legislature passed a law that primarily forbids employers from forcing current or prospective employees to disclose their log-in information for social media accounts or “adding” other employees or supervisors to the “followers,” “friends,” or other contact lists on social media. Additionally, employers may not do indirectly what they cannot do directly, i.e., access an employee’s non-public account through a mutual friend or “inadvertently” access an employee’s account through some sort of employer-provided device or monitoring program.

The National Labor Relations Act provides employees the right to act together to address conditions at work—regardless of whether they are part of a union. The law permits employees to engage in what is known as “concerted activity,” or the right to address work-related issues and share information about pay, benefits, and working conditions. The same rights apply to actions taken on social media. Comments, posts, tweets, even “liking” a co-worker’s comment about one of these concerted activities is protected. Of course, if a worker says something egregiously offensive or knowingly and deliberately false, or makes a disparaging comment about his or her employer that has nothing to do with concerted activities, the employer is within its rights to take action.

Given the ongoing developments in these laws, employers should review their handbooks and/or policies to ensure they conform to the state and federal guidelines. As for employees, be mindful of the information you release to the world—what you post, what you “like” or “re-share,” and who you allow to access your social media.

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