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Employers "friending" applicants raises questions

Posted by Chad O'Connor  February 4, 2013 11:00 AM

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There is no question that employment laws have failed to keep pace with changes to social media technology and workplace practices. Those who know of the arcane Massachusetts “blue laws” which restrict certain businesses from opening on Sundays and holidays may not be surprised by the absence of state laws addressing social media usage. Nonetheless, as the rate of technological innovation continues to accelerate and employers and employees develop new ways to communicate and access information, new issues have emerged without clear guidance.

For example, some employers have grappled with whether they can and should use social media to monitor current employees or screen potential hires. Companies often recognize that social media can provide employers with a wealth of information that may not be otherwise available. But, obtaining and using social media information in the employment context is fraught with risks for employers who might be violating privacy rights, discrimination laws, National Labor Relations Act restrictions, and intellectual property rights, among others.

One Massachusetts state Representative is pushing for workplace laws to keep up with rapidly changing workplace concerns. Massachusetts Representative Cheryl Coakley-Rivera, the Chairwoman of the Committee on Labor and Workforce Development, became concerned about the trend in Massachusetts and throughout the country where employers were asking job applicants to provide either their social media account log-in and password information, or were asking applicants to add a representative of the employer to their lists of “friends” or contacts on social networking sites. As a result of this concern, Representative Coakley-Rivera introduced a bill to address certain aspects of social media use in the employment relationship. She commented that, “access to an individual’s social networking account could expose very personal information, which employers would otherwise not be legally able to obtain during a job interview.”

Some of the information that might be accessible through an applicant or employee’s social media sites would include information disclosing age, religion, marital status, sexual orientation or medical history. Current Massachusetts and federal laws prohibit employers from asking applicants questions that would reveal information about these protected characteristics and restrict employers from making hiring or employment decisions on the basis of such information.

Representative Coakley-Rivera first filed a bill to address this issue in the spring of 2012. That bill never proceeded to a vote. On January 11, 2013, Representative Coakley-Rivera introduced a new revised bill entitled “An Act relative to social network privacy and employment.” The bill makes it unlawful for an employer to “require, request, suggest or cause” an employee or applicant to disclose or provide social media access information, or to require an employee or applicant to add anyone affiliated with the employer to their social media contacts. Furthermore, the bill specifies that employers may not take adverse action against an employee or applicant for refusing to disclose social media information or add an employer related contact.

Coakley-Rivera noted that her concern extends to both applicants for employment, and those with whom they may associate through social media. She commented that employers requiring access to applicant social media sites “is an intimidating invasion of privacy to those seeking employment [and] also to the friends and family who may post personal messages, photos or comments on the applicant’s page.”

The law appears designed not to inhibit or restrict an employer’s ability to use or govern the use of legitimate, employment related information and resources. In particular, it exempts from coverage any account “opened for and provided by an employer and intended solely for professional purposes.” It also makes clear that employers may use information that is in the public domain and that it does not limit an employer’s right to maintain “lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding the use of the internet, email or social media.”

The Massachusetts bill currently has 46 co-sponsors. If it is passed, it would follow similar laws passed in 2012 in California, Delaware, Illinois, Maryland, Michigan, and New Jersey and legislation pending in eleven other states. In addition to state laws prohibiting employers from requesting or requiring access to employee or applicant social media accounts, the use of social media information in an employment context may violate electronic communication, privacy, anti-discrimination, and labor laws as well as the terms of use of social media sites. A K&L Gates, LLP Client Alert summarizing some of the potential risk areas that employers should consider as they develop and refine their social media practices and policies may be found here.

Christine Watts Johnston is a Partner in the Labor, Employment and Workplace Safety group in the Boston office of K&L Gates LLP.

This blog is not written or edited by Boston.com or the Boston Globe.
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