Although it might seem like an unlawful invasion of privacy, the truth is that this procedure is legal. In fact, it is neither an invasion of privacy nor a violation of constitutional rights, as the applicant can simply decide not to apply. And if applicants refuse to provide the requested information, employers are free to drop their consideration for hire.
But what about existing employees?
The rights of individuals who are already employed are generally greater than those of individuals seeking employment. The law with regards to current employees seems to be trending in favor of free speech and an employee's right to privacy. For this reason, employers should be very cautious when taking punitive action against current employees in reaction to their social media postings.
Consequently, it would be wise to seriously consider whether there is any actual need to review existing employees' social media profiles. Unless an employee holds a safety-sensitive position or one that is highly visible and representative of the organization, it is generally difficult to draw a connection between their social media postings and their right to hold their job. Employers should only take action if employees fit one of those two descriptions or if something is clearly in violation of the company's code of conduct.
Here are a few other tips that can help employers implement some controls in this social media review process:
●The request for login information should be stated on the application and/or explained at the outset.
●Employers should closely consider the purpose in reviewing social media information of applicants.
●The rule should be uniform and fair. To prevent the appearance of bias, employers who elect to monitor social media profiles should uniformly check everyone's profiles. They should also create a checklist to help streamline the review protocol.
By making the process transparent and formalizing the review protocol, employers can help to ensure that the procedure is carried out fairly and that the rights of their employees are not unduly threatened.
While everyone values the importance of privacy, we now live in an era where cyber behavior can have a huge impact on the real world, and as a result, social media screenings will likely become a fact of life.
Margaret Kostopulos and David Lefkow are attorneys with the Ancel Glink law firm in Chicago. Kostopulos practices in the areas of municipal and labor law, while Lefkow specializes in employment law.
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