Daily Business Review- Special Report: Labor and Employment

Check out Ethan’s commentary in the Daily Business Review:

Requesting an Applicant’s Social Media Info Could be a Big Mistake

In today’s litigious society, what you don’t know can hurt you – especially when it comes to hiring new employees. If an employer fails to thoroughly vet a potential candidate before brining them onboard, and the employee later causes harm, the employer might be held responsible and served with a lawsuit for negligent hiring if it should have known about an employee’s risky background and behavior. It therefore makes good legal and business to get to know your candidates – and one way to do so is by checking out their social media.

A candidate’s social media profile likely chronicles their personal and professional lives in a manner in which would make the employer aware of potential pitfalls in brining the candidate into the company. But this business practice is not without risks. In addition to exposing themselves to potential lawsuit for discrimination by viewing protected information like someone’s age or religion, employers often find a candidate’s social media profile is shielded by privacy settings prohibit an employer from accessing most information. Faced with this situation, an employer might simply ask the candidate for access their social media information as part of their due diligence.  Sounds reasonable.  But could this practice be illegal?

In many states, the answer is yes.

Social Media Employment Laws

In many states, new laws are being enacted that would make it illegal for an employer to ask applicants to reveal their social media account. Under these social media related employment laws, an employer may not “request or require” any job applicant to disclose their username, password, or any other authentication information related to any “personal online account.”  In the event that an employer inadvertently learns an applicant’s username or password, these laws would make it illegal to use that information to access the applicant’s personal social media account. Currently, Arkansas, California, Colorado, Illinois, Louisiana, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont, and Washington have enacted laws prohibiting such conduct.

Consequences for violating these laws are serious. Many of these laws enable an applicant to file a lawsuit against the employer, sue for actual damages resulting from the violation, or if actual damages are difficult to ascertain, an aggrieved employee may obtain statutory damages – which are a specific amount of damages provided by the specific state law.  In some states, an applicant may also seek injunctive or other equitable relief and recover their attorneys’ fees and costs.  This could be a hefty price to pay by simply requesting someone’s Facebook profile.

The Law in Florida

Recently, the Florida Legislature introduced a Senate Bill 198 titled “An Act Relating to Social Media Privacy” which, like other states, would prohibit an employer from requesting or requiring access to a social media account of a prospective employee. Under this proposed law, an employer who refused to hire a prospective employee for their decision not to provide access to his or her social media account would authorize the applicant to sue for damages, attorney fees, and court costs.

Senate Bill 198 was not been passed by the legislature, in part because the law carved out certain vague exceptions that would have allowed the employer to seek access to social media accounts under certain circumstances. Does this mean that Florida employers are in the clear to demand social media accounts without hesitation?

Not quite. With so many states enacting laws to protect the privacy rights of employees, it may only be a matter of time until the legislature overcomes the hurdles of the proposed bill and falls in line with the growing number of states prohibiting such conduct. Until then, employers and applicants in Florida will continue screening and shieling social media content with the uncertainty of whether a court will permit a lawsuit to proceed for an alleged violation of an employee’s right to shield their “private” social media information from employers.

Ethan Wall, Esq.  advises corporations and law firms on social media legal issues through his consulting business, Social Media Law and Order.  He is also an adjunct professor at Nova University where he teaches a class on social media and the law.  He can be reached at ethan@socialmedialawandorder.com.