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The AR Group

Employers Facing More Hurdles on Social Media?

By Christine Wilkinson

At the end of December 2012, Michigan became the fifth state to pass a law prohibiting employers and educational institutions from requiring certain individuals to provide their employer with access to their personal social media accounts. The Social Network Account Privacy Act now prohibits employers and educational institutions from asking applicants, employees, and students for information about the individual’s social media accounts.

These ?Facebook password laws,? as they are beginning to be known colloquially, have been enacted in Maryland, Illinois, California, New Jersey, and Michigan. Prior to Michigan, however, the laws uniformly appeared to hamper employers.? ?For example, under these laws, employers are prohibited access to valuable information regarding an employee?s sharing of proprietary information media or providing information that would enlighten a workplace investigation, even when done on an employer?s computer or device.? But the Michigan law seems to be good news for employers, because it contains four important exceptions to the prohibition that are helpful to employers.

Specifically, the Michigan law does not apply when:

  1. An employee “transfers” (i.e., steals) the employer’s “proprietary or confidential information or financial data” to the employee’s personal Internet account;
  2. The employer is conducting a workplace investigation, provided that the employer has “specific information about activity on the employee’s personal Internet account;”
  3. The employer pays for the device (i.e., computer, smartphone or tablet), in whole or in part; or
  4. The employer is “monitoring, reviewing, or accessing electronic data” traveling through its network.

Michigan?s law is the first of its kind to address workplace investigations and theft of proprietary information.

What do Facebook password laws mean for employers? First, employers must have updated social media policies. Second, the social media policy must reflect the latest law governing your state. ?Social media privacy is a hot topic in the law, and the domino effect will spur state legislatures to address this burgeoning area sooner, rather than later.

Third, and perhaps most importantly, employers can still investigate applicants and employees on the Internet, subject to that individual?s privacy settings.? For example, in one recent discrimination lawsuit, the plaintiff claimed her depression was caused by her employer. Her Facebook profile was not at all private, however, and the employer, and jury, saw her happy and decidedly upbeat status updates depicting her daily life.? In another case, based on an anonymous tip, an HR manager performed an Internet search using an employee?s name who was on disability as a result of a workplace accident. The search yielded the employee?s personal Twitter account, helpfully listed under his real name, which detailed his adventures doing 50-mile bike rides training for a road race during the same time he claimed to be too injured to sit at his desk.? These are just two examples of how employers can legally advocate for themselves, while adhering to the most current laws governing the Internet and their employees? privacy rights.

SMART TIP: An employee is still bound to maintain secrecy over a company?s proprietary information and trade secrets, even on off-time and when conducting personal Internet activity. The employer?s social media policy should address this issue, and the employer, managers and HR professionals must ensure that the policy is consistently enforced.