Employee vs. Employer: The Battle For Privacy In Social Media

Last week the state of Maryland became the first state to ban employers from asking for employees or potential employees for access to their personal social media accounts such as Facebook, Twitter, and others. According to the Washington Post the law grew out of an incident between a corrections officer and his supervisor, where the officer was asked to provide his Facebook login information as a way to ascertain if corrections officers had connections or affiliations with a gang. Other similar laws are currently going through the legislative process in California, Michigan, Minnesota, and others. The problem is that these laws tend to be very black and white, and social media is anything but a black and white world.

Social media sites are increasingly used by employers to learn more about current and future employees, and it is something that has been going on for a long time. For example, over ten years ago an employee at a firm I worked for was fired for placing information about a project we were working on for the government on his personal blog. Today, it seems to be a standard HR practice for firms to scan employee and potential employee Facebook postings, personal blogs, Twitter streams, YouTube videos, and other social media channels looking for any type of questionable behavior. Given the personal security settings though, it is possible to limit what an employer might see.  So should an employer have the right to review an employees personal social media account? In some cases, yes. But the employee can also choose to say no.

There are certain professions such as law enforcement or where the employee carries a high level security clearance where the interview process and the background check including a polygraph test. In case for positions such as this, it seems like a legitimate requirement for employment as part of a background check to review social media channels, which doesn’t seem nearly as intrusive as some of the polygraphs I have been through. In these cases, where there are legitimate security or other employment issues, then the employer should have the right to request access to those sites it deems would be necessary and beneficial to better assessing the character of the employee. It really isn’t much different then requesting the ability to do a credit check. On the other side, I think employees should be able to decline to reveal their social media information, though it may mean not getting the job.  Employment is a two-sided agreement, and if one side doesn’t agree with what the other side is doing or requesting then they shouldn’t be in relationship. If an employee doesn’t want to reveal their information then they can choose not to apply for or take the job. If an employer isn’t getting enough quality employees because of the need to reveal their social media information, then the employer may drop that requirement – simple law of supply and demand.

That being said, as an employer, I wouldn’t ask. First, the information you may find there is less likely to be relevant to their employment then you might think. Yes, there maybe personal information that may indicate someone has a gambling problem or a drinking problem for example, but just like they don’t want you to know they also probably don’t want their friends to know. Second, most companies don’t have the social media policies and privacy policies in place to deal with the information they may collect, there by leaving them legally vulnerable. Third, as social media sites become more a communications hub then just a platform, the idea of where personal privacy starts and ends becomes even murkier. Do you really want to take your company down that road?

Long-term, asking for login information of employees is going to be of less value to employers as employees clean up their accounts before handing over their credentials or even staying off the platforms completely so there is less for employers to discover. What do you think, should employers be able to request the login information for social media sites from their employees?