Published by LawTechie - March 18, 2014 - LawTechie

internet lawFor years I have been harping that businesses accessing employee social media accounts is a bad idea. We have seen federal courts allow privacy violation lawsuits for this behavior while some states have passed laws flat-out prohibiting “shoulder surfing.”

Now the FTC and EEOC have come together to issue guidelines which, in so many words, confirm that using Facebook or other social media information as a basis for hiring or firing decisions is likely to get you sued. Specifically, in its guideline article “Background Checks: What Employers Need to Know” the agencies note:

It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a “disparate impact” and is not “job related and consistent with business necessity.”

This may seem like some pretty, “well…duh,” sort of stuff, but think about it: People’s social media accounts are pretty much limited to just the type of information listed above. Our Facebook profiles, photos and status updates are replete with information about our race, color, national origin, often they talk about our religious beliefs, and political affiliations. Access to a Facebook profile, and a thorough examination of a Timeline, will probably get you all sorts of information about a person’s criminal history (if any) or disabilities.

In other words, while an employer’s reason for hiring or firing someone may have nothing to do with any of these things, demanding access to their social media accounts is akin to blackmailing yourself. When there is virtually no other information but potentially “protected” information that is available from viewing a Facebook account, it will be really hard to argue that this wasn’t the reason you demanded access and that your hiring/firing decision was not based on what you learned there.

Food for thought.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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