Douglas Taylor, shareholder at Bean, Kinney & Korman shares the legal landscape of employee privacy, common scenarios employers face, best practices, and emerging trends.

In today’s increasingly digital workplace, social media and employee privacy have become critical considerations for many employers. While platforms like LinkedIn, Facebook, and Instagram can offer valuable insights into prospective and current employees, the line between business interests and employee personal privacy is not always easy to discern. Navigating this balance requires employers to understand the legal framework applicable to employee privacy and to adopt best practices to stay compliant while also protecting their organizations.

The Legal Landscape of Employee Privacy

Employers should first understand the legal framework surrounding employee privacy and social media use. At the federal level, laws such as the Stored Communications Act (SCA) restrict unauthorized access to certain private electronic communications. The SCA prohibits employers from requiring access to private social media accounts or content unless the employee grants explicit permission.

State laws have further tightened restrictions. For example, many states, including Virginia, have enacted legislation prohibiting employers from requesting social media login credentials from employees or job applicants. Violating these laws can lead to significant legal consequences, including lawsuits, financial penalties, and reputational damage.

It is also important to note that federal anti-discrimination laws, and those in many states, prevent employers from making hiring or disciplinary decisions based on protected characteristics (e.g., race, gender, religion). Social media, while often informative and helpful, can also inadvertently expose employers to an employee’s protected characteristics and other privacy-protected information, increasing the risk of unintentional discrimination.

Understanding these laws is crucial for mitigating legal and reputational risks while ensuring a fair and compliant workplace.

Common Scenarios Employers Face

Employers encounter several scenarios where employee privacy and social media intersect. Below are a few examples and guidance on navigating them effectively:

1. Social Media Checks During Hiring

It is common for employers to review a candidate’s social media activity during the hiring process as an additional means to assess the candidate’s professionalism, cultural fit, and character. However, employers must tread carefully:

• Stick to public profiles: Employers can review publicly accessible information but should avoid asking for private account access.
• Avoid biases: Social media profiles often reveal information about a candidate’s age, religion, or other protected characteristics. Use this information judiciously to avoid claims of discrimination.

2. Monitoring Current Employees’ Social Media Activity

Monitoring social media activity of current employees can be a gray area. Employers may need to take action if an employee’s post negatively reflects on the company’s reputation or violates its workplace policies.

• Focus on public posts: Employers should only consider content that is publicly available or explicitly shared with them.
• Ensure policies are clear: Disciplinary actions for social media activity should be grounded in documented company policies to avoid disputes or reputational damage to the company.

3. Requiring Social Media Login Credentials

Requiring employees or applicants to provide login credentials for private accounts is risky and, in some states, unlawful. Even if it’s not explicitly prohibited in your state, this practice undermines trust and exposes employers to legal liabilities.

Best Practices for Employers

To navigate these challenges effectively, employers should implement policies and practices that align with legal requirements while respecting employee privacy:

1. Craft a Clear Social Media Policy

A well-defined employee social media policy is essential. This policy should:

• Clarify whether or to what extent social media use is acceptable during work hours.
• Define what constitutes inappropriate social media activity that could lead to disciplinary action.
• Delineate proper uses of company electronic devices or accounts for personal social media activity.

2. Conduct Transparent Hiring Practices

During hiring, employers should:

• Limit your searches and reviews to publicly available information when reviewing candidates’ social media profiles.
• Document the hiring process and ensure social media checks are consistent and non-discriminatory.

3. Train HR and Management Teams

Human resources professionals and managers should receive training on:

• Privacy laws related to employee monitoring and social media.
• Ethical hiring practices, including avoiding implicit biases.
• Handling workplace disputes stemming from social media activity.

4. Engage Legal Counsel

Regularly consulting with legal counsel ensures your policies and practices stay aligned with the latest federal laws and regulations, which are evolving constantly. Legal reviews can also identify potential vulnerabilities in your approach to employee privacy and social media use.

Emerging Trends in Employee Privacy

The digital workplace continues to evolve, bringing new challenges to employee privacy. Employers should stay informed about these emerging trends:

AI and Social Media Screening

Many companies are using artificial intelligence tools to automate social media checks during hiring. While these tools offer efficiency, they can introduce new risks, such as amplifying biases or accessing prohibited information. Employers must ensure these tools are used ethically and in compliance with privacy laws.

Remote Work and Employee Monitoring

The rise of remote work has increased the use of monitoring tools to track productivity. Employers must ensure these tools do not overreach, infringing on employees’ privacy. Transparent communication about monitoring practices is critical to maintaining trust.

Conclusion

Balancing employee privacy with business interests is a complex but necessary task for employers in the digital age. From hiring practices to workplace monitoring, navigating these issues requires a clear understanding of the legal landscape, a commitment to ethical practices, and proactive employee policy development.

Employers who take the time to implement compliant and transparent employment practices not only reduce legal risks but also foster workforce trust and goodwill. If you’re unsure about whether your current policies align with state and federal laws, or you need help crafting a robust social media policy, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.