With the rise of social networking sites, managers want to review Facebook profiles, Twitter accounts, and other publicly available websites to learn more about candidates and employees.
Many Facebook users do not have their profiles set to private, which would make them available only to selected people or certain networks. There is a big difference between an employer seeing public postings and private information.
Employees and prospective employees should have the right to keep their Facebook, Twitter, or other social media profiles containing sensitive information private from the prying eyes of their bosses.
Employees and job applicants have an expectation of privacy when it comes to using social networks such as Facebook and Twitter, including the right to have their right to free expression protected.
Employers are not required to require access to applicants’ or employees’ private password protection information stored online. Yet there have been a number of reports of job applicants during interviews being asked to log into their Facebook and other websites and allow potential Employers to browse their profile, acquaintances and other personal information, while others are simply being asked to list their passwords on job Applications. Other job seekers have even been asked to befriend hiring managers!
Traditionally, employers haven’t required job applicants to hand over their house keys or bank account information, so why should they be able to access your private information stored online?
It’s like letting your employer access your mail to see if there’s anything of interest inside. It would give Employers the ability to act as an imposter and assume an employee’s identity, continually accessing, monitoring, and possibly even manipulating an employee’s personal social activities, communications, associations, and opinions.
Facebook’s Statement of Rights and Responsibilities states that sharing or requesting a Facebook password is a violation of its terms of service, however, Employers cannot count on Facebook suing an Employer for such a violation.
Legislation is being passed to address the current situation, based on the Computer Fraud and Abuse Act, which deals with computer hacking, to safeguard Employees’ online identities. The 2012 Password Protection Act will prohibit employers from accessing “protected computers” where social media files are stored.
Subject to a few exceptions, it will prevent employers from forcing employees and prospective employees to provide access to their private online systems, including Facebook, email, and other online storage.
The bill is broad in its wording and is not limited to any specific website. It focuses on the servers where the information is hosted or stored, de-emphasizing having to identify and define a particular type of Internet service. This means that an employer will not be able to force an employee to provide access to their Facebook or Twitter account as a condition of their employment.
It will prohibit Employers from forcing employees to provide access to information stored on any computer not owned or controlled by the employer. The Act will protect information even if it is accessed on a computer owned by the employer. It will also prohibit an employer from discriminating against or retaliating against a prospective or current employee if that employee refuses to provide access to a password-protected account.
Therefore, if an employee is only looking at a social network on their work computer, an employer will not be able to force the employee to reveal a password, as this would allow them to access another computer, being the computer of the social network that the employee is examining. The protection afforded by the Act extends to Gmail accounts, photo-sharing websites, and employee-owned smartphones.
Since the Act is drafted in a way that is largely technologically neutral, its effect is likely to be unaffected by changes in technology. New online technologies continue to evolve and emerge, making legislation out of date. However, because the Password Protection Act of 2002 is not limited to protecting a particular service such as a social networking service, it is flexible enough to anticipate evolving uses of the technology, as it focuses on access to a computer.
The Act covers any new service as long as it is not hosted on any employer’s computer. However, there are exceptions in the legislation and students are not protected from social media monitoring and may therefore be forced to surrender their social media passports.
However, there is another law to be introduced, the Social Media Online Protection Act, which will close this gap by granting protection to both employers and students.
However, if you are a government employee or an employee who works with children under the age of 13, the Act allows States that legislate in this area to provide a waiver, while another exception allows the executive branch to waive entire classes of workers if they come into contact with classified information, including soldiers. These exceptions to the protection conferred, therefore, sanction extensive and radical fishing expeditions in the private life and communications of Employees.
There is already a wide range of means to investigate employee misconduct. In addition, Internet activities are constantly creating many new types of records, and these can already be used against employees in investigations.
CONCLUSION
While the new legislation is a great step forward in preventing Employers from taking adverse action as a result of an employee’s refusal to provide access to their private accounts, Employers still reserve the right to allow social media activities within their office only on a voluntary basis and implement policies regarding the use of operated computers. Once you’re employed, you may be required to sign an acceptable use policy related to your use of social media in the workplace. You may have enjoyed the freedom of expression online; however, you may be required to sign a non-disparagement agreement that prohibits you from speaking negatively about an employer on social networking sites. Therefore, employees who violate such acceptable use policies will remain liable for any activity that violates such policies.