Employee monitoring and social media privacy in hiring and the workplace

Employee Monitoring: Privacy in the Workplace

Employee privacy in relation to online technology has proven to be one of the most controversial issues in Internet law. Technology has in many ways moved faster than the law, and judges and legislators find themselves having to play 'catch up' as issues arise regarding the need to balance workers' and employers' rights. Employee privacy questions begin even before an employee is hired. Increasingly, employers are making use of 'Google' as a tool in prescreening employees, seeing what online traces the worker has left regarding work habits, hobbies, and political beliefs.

While public records are accessible to all, this does not mean that an employer can discriminate against a candidate if the worker belongs to a protected status, according to the terms of the Equal Employment Opportunity Commission: for example, if an employer discovers that the prospective employee has a disability or is a member of a historically-discriminated against minority group based upon an Internet search, the employer cannot use that information against the candidate. In fact, some lawyers advise not Googling candidates given that if the prospective employee is rejected "and is able to show that such information was uncovered in an Internet search, then the candidate could allege that the impermissible criterion was the reason he or she was not hired," thus requiring the employer to demonstrate that the job-seeker was not discriminated against based upon his or her status (Siegel).

For some employers, however, Googling is not enough and they wish to discern more about the candidate based upon private social networking information and will ask for passwords and other log-in information to all the social media sites used by the candidate. While membership in a protected category of employment is not permitted to be taken into hiring considerations, political views, drinking, and hobbies the employer disapproves of are legal ground for not hiring an individual (Guerin). Given the growing pervasiveness of this, a number of states have taken action to limit this practice, "prohibiting employers from requesting or requiring passwords to social media sites" and Facebook, the most popular online social networking site, made "soliciting passwords a violation of the site's code of conduct" (Guerin).

Once he or she is hired, however, employees should assume that all communications on work-related computers are not private. The federal law, the 1986 Electronic Communications Privacy Act, "prohibits unauthorized interception of various electronic communications, including e-mail" but "the law exempts service providers from its provisions, which is commonly interpreted to include employers who provide e-mail and Net access" (Schulman). Many employers inform employees that their online transactions are monitored, and courts have largely concurred with employers that organizations have a right to ensure that employees are not accessing potentially hazardous sites that could bring down the work Intranet and hamper productivity and that in general that there can be no reasonable expectation to privacy on work computers (Schulman). Even if an employer informs employees that email communications are not monitored and are personal, in Smyth v. Pillsbury Co. it was ruled that there was no reasonable expectation of privacy when communicating on an employer's email system given a company has the right to restrict conduct it deems offensive and harmful to its business (Schulman).

As the line between work and home becomes blurrier and blurrier, new questions arise, such as whether devices used for the employee's personal communications can also be searched by the employer. For example, "a text message is generally a private communication between the sender and the receiver. However, if the phone or computer on which the text message is sent belongs to the employer," even if the employee also uses it as a personal means of communication, the "employer has a legitimate purpose in searching an employee's phone or computer where the message was received" (Smith & Burg). "An e-mail on a private account, if used for the employer's work or saved to the employer's system, can probably be reviewed by the employer as well," even if the employee logs on using a home laptop (Smith & Burg).