Network. Network. Network. That is the advice given by many job placement and career development organizations; therefore, the rise in popularity of networking websites is not surprising. The problem is that as networking has become high-tech, the line between an individual’s personal and professional life has become blurred. Traditional means of networking consisted of targeted letters and telephone calls and participation in appropriate trade organizations. There was no question that the information exchanged between the parties was professional and to be used for employment purposes. Today, more and more individuals are taking advantage of services provided by social networking websites including Facebook , Twitter, MySpace, and YouTube. Although designed for personal and social use, there are few legal safeguards against an employer accessing information on these sites when making employment decisions.
Employers will often screen job applicants by reviewing their profiles for information that may be damaging to the company’s reputation or subject it to future liability. Some employees will also routinely monitor their current employees’ online activity for not only these reasons, but also for evidence of co-worker harassment or extent of online use during working hours. Despite the availability of privacy controls, information posted on social networking sites is designed to be shared and, therefore, individuals may not have a “reasonable expectation of privacy.” This is especially true with respect to information created or accessed on a company computer. In general, there is no expectation of privacy on company property, because an employer has a right to view the contents of information contained on its computers. Furthermore, according to intellectual property lawyer, Catrin Turner, “If a social networking site is used to hold any information which relates to your employment, if that information is prepared in the course of your employment, you are dealing with company property.”
While employers may be able to access personal information, there are some restrictions on the manner in which they obtain and use it in employment decisions. George Lenard has identified the following possible legal violations committed by employers:
1. Anti-Discrimination Laws
Employers are prohibited from making employment decisions on the basis of race, color, religion, sex, or national origin (Title VII of the Civil Rights Act), disability (Americans with Disabilities Act), or age (Age Discrimination in Employment Act). By accessing social networking sites, employers gain suspect classification information not normally obtained via an interview or resume. Thus, if an individual brings a discrimination claim, the employer cannot plead ignorance.
2. Invasion of Privacy
An employee may bring a tort claim for violation of privacy, but this is likely to be a weak claim. As previously mentioned, given the public nature of the sites it will be difficult to prove a “reasonable expectation of privacy.” The claim may be stronger if the employer actually hacked into or otherwise bypassed a user’s privacy controls. Facebook’s Terms of Service specify that users must agree to“not solicit login information or access an account belonging to someone else.” Furthermore, an employer who accesses information on a computer without authorization may be liable under the Federal Computer Fraud and Abuse Act (18 U.S.C. Section 1030).
3. Fair Credit Reporting Act
In addition to causes of action against the employer, third parties may also become liable for improperly accessing information on social networking sites. For instance, an employer could hire a third party to gain access to a potential employee’s account and then use that information to make an employment decision. If the employee had a “reasonable expectation of employment” and was not hired, the third party could be liable for tortuous interference of business expectancy. The third party could also be found in violation of the Federal Fair Credit Reporting Act (FCRA) (15 U.S.C. 1831 et.seq. The FCRA requires credit check agencies to disclose that information it obtained was provided to an employer to be used in an employment decision. Lerner suggests that a similar law is needed to specifically cover information gained from networking sites. Facebook has taken some steps to limit the collection of information from its site by amending its Terms of Service to include the following statement: “If you collect information from users, you will: obtain their consent….and post a privacy policy explaining what information you collect and how you will use it.”
The existing laws offer some privacy protection, but if you are working or looking for work, you should take steps to insure that Facebook is your friend and not your foe.
Strategy:
1. Review your privacy settings
If you allow friends or networks access to your profile, you essentially waive all privacy rights as to those individuals. Be particularly wary of accepting your current supervisors and co-workers as “friends” as this will certainly bring your personal activities into the workplace.
2. Be judicious in your postings
Assume that all information you post on Facebook can and will be accessed by employers.Consequently, your goal should be to portray yourself in the best possible light. You can highlight your interest in or knowledge of a particular field by posting information on current issues; but, take care to avoid discriminatory or inflammatory comments.
3. Review your employer’s computer use policy
An increasing number of employers are drafting company policies regarding use of social networking sites. Provisions may include (1) restricted or prohibited access to networking sites on company computers, (2) an employer’s right to access sites, if it suspects activity that interferes with work performance, such as harassment of co-workers, and (3) prohibition of posting disparaging information about the employer. Remember that company policies are considered legally binding contracts and may provide stiff penalties for violations, even termination.
4. Contact a California labor law attorney
If you suspect that you have been denied employment or wrongfully terminated on the basis of personal information, contact a knowledgeable California labor law attorney to discuss your rights.
Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008 employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most commonly of these requests are leaves of absence or changes to the employees schedule. The Equal Employment Opportunity Commission ("EEOC") and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.
