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Use of Social Media in Hiring and Firing Employees

Labor and Employment Alert | August 21, 2012
by: Nancy Conrad*

With the increased use of social media, a neighbor from across the street may know less about a person than that individual’s Facebook friend who lives across the country and whom she has never met. Employers have increasingly been utilizing Facebook, and other forms of social media, as relevant criteria in the hiring and firing process. Employers have an interest in insulating themselves from prospective and current employees that engage in conduct that may adversely impact the company and the workplace. The question is whether or not reliance upon online information violates an employee’s or a prospective employee’s privacy rights and other laws. There is no clear answer in statutory or common law and an employer must beware of the potential claims that may arise when utilizing online information in employment decisions.          

The Electronic Communications Privacy Act (ECPA) was passed in 1986 to extend the statutory bar against intercepting traditional online and oral communications to communications in electronic form. Title II of the ECPA, the Stored Communications Act (SCA), regulates government and third party access to stored wire and electronic communications and records. The SCA prohibits anyone other than a communications service provider or law enforcement official (that obtains a warrant or court order) to access stored electronic communications.

Few courts have construed the SCA in the context of social networking. These courts, however, have held that with respect to restricted access group websites, that the statute prohibits employers from logging on to read an employee’s stored electronic communications without the employee’s explicit authorization.

In Pietrylo v. Hillstone Restaurant Group, two employees brought suit against their employer after they were terminated for posting crude remarks about the employer’s management and customers on a private MySpace forum group. The United States District Court of New Jersey found that the employer improperly pressured co-workers into handing over access codes to the chat group. The Court held that because the employer knowingly accessed the private group without authorization, the employer violated the SCA and the Court affirmed an award of compensatory damages to the employees. While employers are free to access and act upon information if they are voluntarily granted access to the site, or if the information is from a public site, employers should consider the risks of utilizing such information.

Most states recognize the common law tort of invasion of privacy and employers should consider whether the employee has a reasonable expectation of privacy in the content of the online information. Most courts will not find such an expectation in publicly posted content; however, a colorable claim for invasion of privacy and a potential claim of  violation of the SCA arises when an employer gains access to an employee’s password protected social media account without the employee’s consent.

Employees should also consider additional claims that may arise from accessing social media content, including claims of discrimination, negligent hiring/retention, First Amendment violations, violations of “off-duty” conduct statutes, and unfair labor practices. Employers should take these potential claims into account when designing policies and practices related to the use of social media in hiring and firing employees. 

For more information regarding this alert, please contact Nancy Conrad at 610.782.4909 or conradn@whiteandwilliams.com.  

*Megan Janowiak, a Summer Associate with White and Williams LLP assisted with this article.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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