Wednesday, August 8, 2012

Facebook: A Land Mine for Employees and Applicants?

Can your boss fire you because you clicked the “Like” button on Facebook for his political opponent?  Can your boss, or a potential employer, require that you provide your Facebook password so that the company can see what you have posted on-line?  These are two current legal questions that demonstrate that social media can be a land mine for employees. 

In the Facebook “Like” button case, the plaintiffs were employees of the Sheriff’s Department in the City of Hampton, Virginia. While the Sheriff was running for reelection, the plaintiffs posted comments on and “Liked” his opponent’s Facebook page. After the Sheriff won reelection, he fired those employees who had supported his opponent. Bland v. Roberts, on Appeal from the United States District Court for the Eastern District of Virginia, No. 4:11-cv-00045-RAJ-TEM (Jackson, J.).

The legal question is whether the activity of “Liking” someone on Facebook is protected speech under the First Amendment.  The lower court said no, and the case is now on appeal to the US Court of Appeals for the Fourth Circuit.  The plaintiffs are arguing that “Liking” a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech. It is verbal expression, as well as symbolic expression. Clicking the “Like” button announces to others that the user supports, approves, or enjoys the content being “Liked.” Merely because “Liking” requires only a click of a button does not mean that it does not warrant First Amendment protection. 

Employers are going even further.  Not only are they perusing applicants’ public Facebook accounts, they are demanding full access.  In some cases, employers are asking job seekers for their Facebook passwords.  In another case, when applicants came for their job interviews, the interviewer sat them down in front of a computer and asked them to log into their accounts so that the interviewer could inspect all of the “private” pages.  This practice has been dubbed “shoulder surfing.”

What is a job-seeker to do?  Even if agreeing to provide the password is considered voluntary, applicants who want the job may feel compelled to “volunteer” the information in order to get the job.

Civil liberties groups like the ACLU have expressed strong condemnation of the practice as an invasion of privacy.  So far two states, Maryland and Illinois, have passed legislation that bars employers from asking for employees’ or candidates’ social media passwords, and other states are considering proposed legislation.  Senators Chuck Schumer and Richard Blumenthal have asked the Justice Department to look into whether these practices violate the Stored Communication Act or the Computer Fraud and Abuse Act.

Even so, the legislation only goes so far - it does not stop bosses from viewing information that isn't restricted by privacy settings on a website.  The Huffington Post reports that research has shown that 75 percent of employers require their human resources departments to look at online profiles before offering an applicant a job, and that a third of employers have turned down applicants based on those searches.  http://www.huffingtonpost.com/2012/08/01/ illinois- facebook-passwor_0_n_1730396.html. 

This post was prepared by partner Elizabeth Newman.  You may reach her at enewman@kcnlaw.com