Matters Column

What can employers ask about social media profiles?

August 16, 2013
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To the frequent Facebook user, the experience is quite common. You are scrolling through your News Feed when you notice one of your friends has changed his or her profile name.

At least one explanation for this phenomenon is that these individuals do not want their online presence easily searchable.

Maybe it was that embarrassing photo a friend posted, or perhaps it was a late night rant that 23 people commented on.

With all the time and effort we spend on the now-numerous social media networks — Facebook, Twitter, LinkedIn, etc. — it is inevitable that some unpleasant, embarrassing experience will rear its ugly head.

For most people, these embarrassing moments come and go with little effect on their business or personal lives.

But the stakes are much higher for individuals in the job market, where that photo might not mean just an embarrassing story among friends. An employer seeing the photo may no longer take the applicant seriously, opting to hire someone who seems to be less of a wild card.

This possibility is the reason most college career services offices advise students to clean up their social media accounts prior to sending out job applications.

Nonetheless, employers still have a strong interest in screening out potentially risky applicants. They want to make sure the individuals in whom they invest money will stay with the company long term and help generate profits.

The fact that websites like Facebook allow individuals to "hide" their social media presence from potential employers has led some employers to request the social media usernames and passwords of current and potential employees. This type of request is now forbidden in Michigan, which is one of 13 states that have enacted similar laws.

Signed into law Dec. 28, 2012, the Internet Privacy Protection Act prohibits employers from requesting information that gives the employer access to an employee's or an applicant's personal Internet accounts.

The Act also prohibits employers from penalizing in any way employees or applicants who refuse such a request by the employer. Employers who violate the Act are guilty of a misdemeanor and can be punished with a fine of up to $1,000.

The Act does have several noteworthy exceptions. Employers may request access information to accounts provided by the employer and devices paid for by the employer. Thus, employer email accounts, as well as any documents stored on the company computer or iPad, are open to employer review.

The Act also allows employers to request access to information when they have specific information leading to the belief that an employee may have disclosed the company's proprietary or confidential information, or that an employee has violated workplace laws.

The federal government has considered prohibitions similar to those found in Michigan. During debates on the Cyber Intelligence Sharing and Protection Act, Rep. Ed Perlmutter, D-Colo., introduced an amendment that would prohibit employers from obtaining access to an employee's private online accounts.

Although the House of Representatives passed CISPA, a majority of the House rejected Perlmutter's amendment.

Some may ask, "Why do we need these laws? Don't I have a right to privacy?"

The U.S. Constitution does guarantee each person a right to privacy. However, that right lies against the state and federal governments, not against private individuals or businesses. Therefore, laws like Michigan's IPPA are necessary if the goal is to protect the online privacy of applicants and employees.

And that is the goal, isn't it? One source states that Facebook has 1.11 billion users, LinkedIn has 225 million users and Twitter has 500 million users. For each of these users, social media is a connectivity tool and an outlet for individual expression.

Employers and potential employers may be tempted to monitor the activity of their employees and applicants. At least in Michigan, however, employers should tread carefully when doing so.

Nicholas Heinz, who attends the University of Iowa College of Law, is a summer associate at the law firm of Varnum, Riddering, Schmidt & Howlett LLP.

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