Social media is everywhere, and it seems everyone is on it. As a recent law school graduate, I distinctly remember law school orientation speakers imparting a cautionary word of warning to all students: DELETE YOUR FACEBOOK ACCOUNTS.
People post intimate, and sometimes embarrassing, information and pictures on their social networking profiles. Lots of people, not surprisingly, allow public access to these accounts rather than changing account settings to private, which allows only “friends” to view the content).
Employers often “screen” potential applicants for positions by looking into the applicant’s social media sites (hence the “DELETE YOUR FACEBOOK ACCOUNTS” warning). Likewise, employers often research their current employees’ accounts when something suspicious alerts them (e.g., calling out sick too often).
So, how is it possible for employers to get into trouble for accessing employee Facebook accounts when the information is open to the public? The answer is simple; when the employer “hacks” the employee’s account by creating a fictitious person and poses as a “friend” to gain access, they cross into questionable territory.
This situation has arisen under the Stored Communications Act (SCA) that makes it illegal to access stored electronic communications without the user’s consent. A federal case from California in 2010 held that the SCA protects postings on social media accounts IF the employee has enabled their privacy settings.
Another issue employers should be careful with deals with employees who are covered under the Family and Medical Leave Act (FMLA). This act allows eligible employees, under covered employers, to take unpaid, job-protected leave for specified family and medical reasons. If the employer suspects that the employee taking leave under the act is doing so fraudulently (e.g., taking a vacation instead of tending to a sick parent) and “hacks” into their Facebook account, they may have violated the SCA. Additionally, the proof obtained from the “hack” to terminate the employee would be obtained illegally and may not be used to justify a termination.
The moral of the story is clear: employers and employees BEWARE. If you have social media accounts, make them private and only “friend” people you know. Otherwise, take the advice I received, and DELETE YOUR FACEBOOK ACCOUNTS.
Image courtesy of freedigitalphotos.net by arztsamui