Employers: Don’t ‘friend’ employees
The new law makes it clear that employers cannot request an employee or prospective employee’s password for any personal account online, be it Facebook, Twitter, gmail or any other private account, nor can an employer use negative information obtained from one of these accounts against an individual, regardless of whether access to that information was provided voluntarily.
“I didn’t hear of a lot of employers in Michigan requiring applicants or employees to disclose Facebook passwords, but I think what happens a lot here is that supervisors and employees friend each other on their Facebook accounts,” said attorney Mary Tabin, who chairs the labor and employment practice group at Rhoades McKee. “I think that’s where it will mostly impact how Michigan employers are currently handling, or not handling, how they provide guidance to their managers on Facebook relationships.”
Tabin advises human resource departments to create a clear policy outlining privacy expectations that comply with the law for management and supervisors, who are considered an employer’s agents or representatives and, therefore, will be held accountable for any violation of the IPPA.
Policies should prohibit managers and supervisors from making a friend request, or “following” employees’ personal accounts. Additionally, it should warn them of, if not prohibit them from, the risk of accepting a voluntary friend request from an employee.
Tabin suggested that even though it is not an employer violation for a manager or supervisor to accept a voluntary friend request from an employee, it is a risky move and one she would advise against.
“If it was really a voluntary request to their supervisor, there is nothing illegal, per se, about that. But what happens is, if the supervisor starts getting information that the supervisor would otherwise not be allowed to ask on his or her own, then that is where it gets into a delicate situation,” Tabin said.
“For example, if somebody relays on Facebook that they are pregnant and they haven’t told the employer yet, and then that employee’s job is eliminated or somehow she is let go, that employee could have the argument, ‘Well, the supervisor knew I was pregnant because of my Facebook information and you used that information to terminate me.’”
Tabin said the burden of proof falls on the employer to prove that it had a legitimate business reason for the employment decision and was not acting off information from an employee’s personal account.
Tabin acknowledged that today’s culture of making private information public knowledge makes it very tempting for an employer to go online to see what can be found about a prospective or current employee. Employers might consider it part of a background check or a way to discern the person’s character or cultural fit at the company, and researching someone on Google is not a violation of the IPPA. Accessing online information that is in the public domain is allowed, including Facebook account information that does not require a password or friend request to view. But it can also come with a certain measure of risk.
In an interview, employers are not allowed to ask an employee questions about age, religion, political views, alcoholism, medical conditions, etc., but a Google search might inadvertently uncover this information, creating a degree of liability for the company if the employee or prospective employee believes that information was used against them in the hiring or promotion process, she said.
“Where an employer could never just go into your house and rummage through your wallet or your purse where you would keep your personal information, at the same time now, those Facebook and Twitter accounts, they can’t rummage through there,” Tabin said.
She also noted that employers could find any background information necessary in hiring or promoting an employee through third-party background checks, which she said are still the safest way.
“What matters to you as an employer is that you provide a healthy and safe work environment for your employees. You are able to find all that information out through background checks that are already legal in Michigan when you comply with the Fair Credit Reporting Act and other applicable laws — those types of avenues are already out there.”
Tabin said that the purpose of the IPPA is to keep up with technology and protect an employee’s privacy and prevent discrimination against someone.
“It’s taking what’s already been out there about how an employer can’t discriminate against employees and tweaking them here and there to keep up with technology.”