© Copyright ClearPath Benefits

New-age challenges for employee privacy

Originally posted September 23, 2014 by Michael Giardina on https://ebn.benefitnews.com.

An individual’s online behavior and presence may seem like their own business, but when it comes to on-the-job use of social networks, the rules have changed. And as benefit managers and their HR teams do their due diligence to try to find the ideal candidate for a position, are they overstepping the law by requiring new hires to allow an employer access to the candidate’s online life?

How can employers ensure that current employees or potential hires are the right fit for their workplace without crossing the line — and taking steps enforcement agencies and new state laws deem too intrusive? As they look for answers, many companies will find that guidance has been a bit fuzzy.

Employers, including private companies and educational institutions, are being forcibly excluded from their employees’ social media accounts as privacy advocates push for more action from legislators. This year, New Hampshire became the 18th state to enact laws that promote employee and student privacy when it comes to employer access to personal online account information.

Five other states in 2014 and nearly a dozen others in 2013 have pushed forward with similar provisions to protect employee privacy, according to the National Conference of State Legislatures.

“I don’t think it’s surprising that more states are enacting legislation,” says Jaklyn Wrigley, an associate at law firm Fisher & Phillips, who represents employers in Mississippi and on the federal level. “It’s a personal realm; that’s where you engage in communication with people that don’t have anything to do with work or school. So it makes sense — unless there is a reason for the employer or university to really stick its nose into that aspect of your personal business — that it is protected without fear of some sort of retaliation.”

The issue of employer social media access was first addressed in 2012 with the introduction of the Password Protection Act, which aimed to prevent employers from demanding access to their potential or current workers’ personal social media accounts. At the time, a Workplace Options and Public Policy Polling survey discovered that 89% of American workers felt their employers had no right to demand their social media login information, and 68% predicted that forcing workers to hand over this information would cripple the already shaky employer-employee relationship.

Alan King, president and chief operating officer of Workplace Options, explains that employer access to personal online information remains “a tricky issue.”

“There are several levels of concern for both parties, but when you look at the big picture, it really boils down to trust, engagement and security,” King says. “It’s dangerous to say that prohibiting employer access to search or monitor employee activity online or through social media sites will improve employee well-being across the board. That may be the case in some instances; it may not be in others.”

According to King, there is a fine line for both employers and employees to walk when policing this new-age issue.

“Employees need to know that what they do or say online or outside of work can impact their professional lives, even if they are off the clock,” he says. “But employers also need to hear and understand that too much interest in what an employee does in their personal life can be bad for

From a legal perspective, employers may be taking the wrong approach when considering an employee’s (or potential employee’s) personal life in their review process. But even before bans on employer access to social media and online account passwords were considered by state and federal lawmakers, employees did have protective safeguards in place.

“A lot of employers just assume that if it’s on the Internet, it’s fair game — and that’s not the case,” says Louis L. Chodoff, partner at national law firm Ballard Spahr.

“Social media in hiring comes up where employers like to do their own Google searches on people, and sometimes applicants will not privatize any parts of their Facebook page,” explains Chodoff. “The trouble that employers will get into sometimes is that they will access information that they shouldn’t be considering in the hiring process.”

He adds that employers should “insulate the decision makers from any information that may be considered in a protected class,” anyone who could suffer discrimination because of their race, color, religion, sex, national origin, age, or disability. Under the Equal Employment Opportunity Commission, which enforces Title VII of the Civil Rights Act of 1964, formal guidance on the issue has been less concrete. The enforcement agency has yet to issue formal guidelines for employers to follow when implementing social media policies, but has commented on its encroachment in employment issues.

At a meeting addressing social media in the workplace, Carol R. Miaskoff, acting associate legal counsel at the EEOC, referenced the Internet-age medium’s impact on equal employment opportunity law.

“When an employer or other entity is covered by the EEO laws, their recruitment, selection, and employment decisions and activities are subject to the EEO laws, regardless of the media they happen to use,” she said.

While noting that regulations do not prohibit specific technologies, she highlighted that “the key question under the EEO laws is how the selection tools are used.”

Miaskoff says the National Labor Relations Board has been keeping an eye on employer social media policies as they pertain to violations of Section 7 of the National Labor Relations Act, which mandates that employees have  the right to organize. Organing activities, whether in-person or online, fall under the veil of “protected concerted activity,” according to NLRB.

Employees also need to be very clear about a company’s internal social media policy, to help prevent an ill-timed or unflattering Facebook or Twitter post from turning into a major public liability. Claire Bissot, HR consulting manager at CBIZ, a business services company, says a proactive stance on the rules can help avoid accidental (or genuinely injurious) messages from going viral.

“You should have a social media policy and certain expectations about what you expect about them; [including] not to give confidential information, not to post negative things about the company and other people, or say this is a view of the company,” says Bissot. “But I believe if you truly encourage your employees to feel like they have ownership in their company, and where they work, they are not going to do malicious things on social media.”

Meanwhile, social media monitoring proposals remained a hot button issue among state legislatures in 2014, and are likely to continue in 2015. As Wrigley notes, social media awareness and privacy concerns in the workplace are not going away anytime soon.

“[The legislation landscape] is really interesting in this age where everyone and their mother is on social media. So it makes sense that lawmakers have an eye to protect their constituents, and employers are also mindful of the privacy rights of [their] employees and applicants,”
Wrigley says.

She explains that it is also logical for employers to prepare themselves by developing a company social media policy, if they haven’t already.

But employers “need not go with [their] gut” when crafting and deciding specific policies, Bissot advises.

“They need to make sure they are taking the right steps,” she notes. “You don’t want to be the one that defines the case. With social media, it’s new ground, it’s new territory, and you want to make sure you are doing it correctly and appropriately for the culture.”

At the same time, Chodoff, an expert on labor and employment law, agrees that social media policies should leave nothing up to chance or assumption.

“I think social media policies have to be very specific about what employees can and can’t do,” Chodoff says. He warns that a savings clause in policies may also miss the ball when it comes to Section 7 because it may be deemed too broad by the NLRB.

“The NLRB will say that infringes on their Section 7 rights,” Chodoff notes. “So say, ‘you can’t make defamatory comments about people.’ You have to make sure that policy is being very specifically written in regards to what it is prohibiting.”