Newest Privacy Lawsuit? Employers Starting To Demand Employee Facebook Passwords

Stories about the need for social media policies abound across the Internet. Whether it’s to protect lawyers from accidental jury tampering or to protect firms from their own associates’ blogs, social media policies—comprehensive and in writing—are crucial for the modern company.

Especially when you consider, for example, online murmuring about recent requests by employers for the username and password information of all their potential employees.

The idea of violating a job applicant’s privacy seems so blatantly wrong, you’d think these stories must be false, right?

Unfortunately, no. The Associated Press published this piece, which serves—in the least—as a warning to professionals about a scary new employment trend:

“Back in 2010, Robert Collins was returning to his job as a security guard at the Maryland Department of Public Safety and Correctional Services after taking a leave following his mother’s death. During a reinstatement interview, he was asked for his log-in and password, purportedly so the agency could check for any gang affiliations. He was stunned by the request but complied. ‘I needed my job to feed my family. I had to,’ he recalled.”

The risk of privacy violations in this manner proved so real that even Facebook, through its chief privacy officer Erin Egan, issued a statement regarding the practice.

“In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.”

The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.”

Obviously, Egan is not amused. And, if employers are not careful with their social media policy, Facebook might even throw a few lawsuits their way.

The tech community as a whole is also up in arms against this recent, unfortunate trend.

Charles Cooper for CNET recently wrote an article titled, “Fork over your Facebook log-on or you don’t get hired. What?” in which he states:

“Especially in the current economy, it’s the ultimate nightmare scenario: Choose principle, or choose your ability to put food on the family table. You can’t have both. That’s the sort of enraging choice politicians, technologists, and free-speech advocates find easy to rally against. Remove this from the Facebook context and it simply looks like an unfair (and counterproductive) hiring practice. Something along the lines of: ‘Gee, we’d like to offer you this job, but before we do, we need you to fill out a few forms so that we can look at your tax records for the last three years.’ Or some such absurd quid pro quo. Lawsuit, anybody?”

Congressmen and lawyers are cleverly harnessing this trend as an opportunity for increased action.

Maryland State Senator Ronald N. Young has already proposed a couple of social-network privacy bills, including one targeted at employers and another at colleges and universities.

“We’ve even heard that some universities hired people to friend (student athletes) to follow what they read and write on Facebook,” Young said to Cooper for CNET. “It’s unconstitutional. It’s like me applying for a job, and the employer saying, ‘I’d like to tap your phone and listen to all your calls and monitor your mail.’”

Lawyers, for their part, should become equally proactive.

Because the issue is so contentious and, apparently, widespread, it’s important that law firm managers advise their clients to create a social media policy and then review its content. Law firms should ensure this policy includes appropriate hiring and firing provisos.

This advice could be circulated through a memorandum or even via casual conversation. But, law firms should feel ethically responsible for the legal actions of their clients concerning social media.

In addition, law firms should revise their own social media policies to target hiring and firing practices. No associate should feel as though he is being monitored or his activity restricted on the Internet.

Nevertheless, law firms should guard themselves from overexposure on the Web. Social media can be an asset to business development, as well as a liability.

The American Bar Association recently published, “How to Create a Law Firm Social Media Policy,” on its website here. More specifically, your firm should learn the rules for disciplining and terminating employees for their social media posts.

In fact, even in non-unionized workplaces the National Labor Relations Board’s (NLRB) recently decided that disciplining or terminating an employee who engages in concerted, protected activity on sites such as Facebook or Twitter is unlawful.

What does this mean for employers? Even the most well-drafted social media policies may violate the NLRA if not kept up-to-date.

So, sign up your firm for The Center For Competitive Management (C4CM)’s social media courses, including this one: Social Media, Workplace Policies, and Violations Under Section 7 of the NLRA.

Or, this one: Developing a Social Media Policy: Clear Guidelines to Prevent or Reduce Employment-Related Problems.

However you decide to broach the issue, the time to do so is now. The reports of abuse—and subsequent legal action—are both real and plentiful.

In an uncertain economy, this is a lawsuit that no employer can afford. And one that no employee can afford to ignore.

-WB

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