Questions Remain About Social Media Privacy Rights During Workplace Investigations
Employees’ social media activities often play a key role in workplace investigations.
For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter regarding race, religion, or disability. Employers handling investigations into such conduct should be aware that state laws may restrict employers’ requests for information about an employee’s social media activity.
Fifteen states have passed, and many other states have considered, laws addressing whether and how employers may access employees’ social media accounts. The laws, in varying degrees, prohibit employers from requiring employees and applicants to provide access to their social media accounts through username/password disclosures, by requiring them to open their page in a manager’s presence, or by requiring them to “friend” a manager. While some states explicitly permit access during the course of an investigation into employment-related misconduct, others do not address the issue. Courts have had few opportunities to interpret the laws.
A recent case in Mississippi demonstrates how social media activity may become part of an investigation. Although the case involves a public school, and thus constitutional rights that are not applicable to private employment, the facts are similar to common workplace issues. The case was brought against a school and teachers by the parents of a high school student who was suspended from the cheerleading team as a result of her social media posts. A teacher who had received reports from students that the plaintiff sent threatening Facebook messages to another student required all of the members of the cheerleading squad to give her their Facebook usernames and passwords. She inspected their accounts, determined that the plaintiff’s messages were threatening, and suspended the plaintiff from the team for two weeks.
The lawsuit alleged that the Facebook search violated the cheerleader’s constitutional rights to privacy and freedom of speech. After the lower court refused to dismiss the lawsuit on summary judgment, the appellate court reversed, concluding that the teacher and school were entitled to “qualified immunity” (and thus, not liable) for the Facebook search because the law concerning students’ rights to privacy was not clearly established at the time.
While there is no “qualified immunity” for private employers, employers may find themselves investigating similar allegations. And, like the teacher, employers may be inclined to demand account information to further their investigations. While this is permissible in some states, the law remains unclear in the majority of states. Thus, employers should consider training managers and human resources representatives who handle such investigations to be sure they understand the limits of their authority.
Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference” as a starting point for employers faced with workplace investigations and other social media privacy issues.