Recently, I’ve received numerous questions and seen online discussions about an apparently increasing practice where employers are demanding social media login and password information from applicants and employees.
Although I’m not aware of any legislation in Georgia that concerns this employment practice, it's becoming popular enough to warrant the attention of at least two state legislatures. Both Maryland and Illinois are currently considering bills that would limit an employer’s ability to obtain social media login and password information from applicants and employees. (Here are links to Illinois bill HB3782 and Maryland bill HB0964.)
Regardless of this proposed legislation, employers can and do look at publicly available social media information posted by applicants and employees. As many employers know, this can be a double-edged sword. While viewing such information can allow an employer to dodge a bullet by avoiding or discontinuing an employment relationship with an unqualified employee, an employer’s awareness of social media information can also subject an employer to risk of being sued. This is because social media may allow an employer to learn information about an applicant or employee that could support a discrimination claim. For instance, an employer’s knowledge of an applicant’s religion could support that applicant’s claim that the employer chose not to hire him because of his religion, even if the employer had another, legitimate basis for not hiring him.
An employer may also review social media postings by its employees to look for unfavorable comments that could defame or otherwise hurt the employer's business reputation. Here, again, caution is necessary because the National Labor Relations Board (NLRB) has recently taken the position that an employer's acts which chill employee complaints about the employer on social media sites can be illegal interference with an employee's right to complain as part of “concerted activity” that is protected by the National Labor Relations Act. Although this is a complex topic that will be discussed in detail in forthcoming posts here, even non-union employers must be very careful when creating social media policies for their employees, and especially before making any employment decisions based on an employee’s social media postings complaining about his or her employer. For those interested, here's a copy of the NLRB's recent memo that provides employers guidance about the NLRB's position on employees' rights to criticize their employers on social media.