Workplace Rights

Weekly (1/13/20)

Topic of the Week  Social Networking & Computer Privacy

  • Can potential employers use information from social media in the hiring process?
  • Can an employer ask for my password to look at my social networking and social media usage?
  • Can my employer legally monitor my computer and Internet activities?
Can potential employers use information from social media in the hiring process?

Employers want to ensure a potential hire is qualified and will reflect well on the company. As a result, many employers conduct a background check that includes social media. An online profile can provide information on professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, current employment status, and other red flags.

However, there is potential discrimination if employers use personal information such as age, race, disability, religion, national origin, or gender to make a hiring decision. As a result, state and federal laws explicitly prohibit that kind of conduct.

Can an employer ask for my password to look at my social networking and social media usage?

There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts. In the past few years, more than twenty states have enacted legislation regarding employers access to employees and applicant’s usernames and passwords. For state by state coverage, please see our page on social network & password statutes. However, the laws vary from state to state, and do not provide the same level of protection in each state. Other states are considering legislation; you can track these bills by visiting the National Conference of State Legislature's website. 

Can my employer legally monitor my computer and Internet activities?

Yes, and most employers do. Employers concerned about lost productivity, excessive bandwidth usage, viral invasions, dissemination of proprietary information and their liability for sexual and other forms of harassment when explicit documents are exchanged via e-mail or the web, believe that monitoring is an important deterrent to inappropriate Internet and computer usage.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use. Courts have generally agreed that an employee does not have a reasonable expectation of privacy when using a device owned and issued by the employer. In one case, the court ruled that even though the employer told its employees that their e-mail communications would not be intercepted, and that the employees would not be reprimanded or terminated based on the contents of their e-mails, the terminated employee could not assert that his reliance on these employer promises should prevent his termination by the employer.

Some union contracts or state laws (such as those in California), may limit an employer's ability to monitor your computer activity. Only Connecticut and Delaware require employers to notify employees that their e-mail is being monitored, while Colorado and Tennessee require state and other public entities to adopt policies regarding the monitoring of employee's email.

Federal laws such as the USA PATRIOT Act may also require monitoring and disclosure of suspicious employee activity to law enforcement.

Otherwise, there are few laws that have been enacted to protect your computer privacy at work.

Thought of the Week

"Employers are increasingly monitoring their employees’ social media activity. A key consideration is to avoid infringing the rights of employees under the Personal Data (Privacy) Ordinance. The Privacy Commissioner’s Guidelines on monitoring and personal data privacy at work are a helpful first port of call. They first stress the “3As” of undertaking a systematic assessment process to ensure that monitoring would be appropriate, ensuring that there are no less intrusive alternatives and ensuring that there is proper accountability for the collection of employees’ personal data. They then stress the “3Cs” of ensuring the clarity of an employer’s policy, ensuring that it’s communicated to employees and the safeguarding of data through proper controls. Employers should ensure that they clearly document and communicate their approach to monitoring."

–Kathryn Weaver, partner at Lewis Silkin

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Top Five News Headlines

    List of the Week

    from Digital Information World

    Social Media Use During Work Hours By Employees

    • 36% of employers block social media at work.
    • 51% of businesses have a social media policy,
    • 56% of the employees who use social media for work still find social media as a distraction during their work.


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