2012 has been a bad year for employers who want to request social media passwords in order to assess job applicants. A very bad year.

Of course, almost no employers actually engage in such a practice, but for some reason this subject became the privacy cause du jour earlier in the year after a national article suggested the practice is common. Even management-side writers rushed to condemn the practice that really wasn’t, and now we have two state laws (more on those below) on the topic, with more likely coming.

But let’s be clear on one thing – there is relevant information about employees’ workplace conduct on social media sites, and until employers are, without exception, legally prohibited from looking at such information, they need to at least be mindful of that information and, where appropriate, try to get it in the course of a workplace investigation.

Consider the Context

This is a sensitive topic, so let’s be clear what I am not saying. I am not saying that the employer has the right to use social media to find out who employees are dating, where they are going out after work, or who they went to high school with when those things have nothing to do with the workplace.

What I am saying is that workplace investigations can be high stakes games, with substantial potential liability for the company if the investigation is not handled right. We see over and over that social media can be a uniquely informative window into one’s true thoughts. Many people’s filters are turned to low, if not all the way off, when they sit down to chat on social media. So before you clear an alleged harasser, be sure you have not put the company in a position for a jury to say someday, “Look at this post the plaintiff found from the harasser – why didn’t the company find that and do something about this creep?”

Addressing the Risks

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Getting the information is not without risk. While it remains fair game to at least look at social media posts that are in the public domain (and it is surprising how many people let it all hang out without privacy settings), there are potential discrimination risks of relying on such information in an investigation.

An employer should be sure it is not looking at information it does not need for purposes of the investigation, and should put a mechanism in place to ensure that. For example, a non-decision-maker might be given a specific set of questions to answer after she looks at the social media information in question, and be instructed to provide no further information.

The Grey Areas

Where the stakes warrant it, the employer may want to require that an employee permit it to access social media information that is not publicly available. First note that that practice is severely limited if not prohibited in at least two states now:

• Maryland passed a law that will make it unlawful for an employer to “request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through an electronic communications device.”
• Illinois just passed a law that states than an employer cannot “request or require” an employee “to provide any password or other related account information in order to gain access to the employee's … account or profile on a social networking website or to demand access in any manner to an employee's … account or profile on a social networking website.”

In both cases, it seems to be an open question whether an employer could require an employee to access the employee’s account on a social media site and allow the employer to look at the computer after the page is opened. In that scenario, the employer is not obtaining any access information.

Likewise, do the laws prohibit an employer from requiring an employee to “friend” the employer? Those questions will likely be addressed by the courts in those states, and similar laws to follow will be tested as well.

Access and Consent

One concern that has been raised in the discussions to date is that accessing social media may violate the federal Stored Communications Act. The SCA prohibits unauthorized access of an electronic facility so as to obtain access to an electronic communication while it is in electronic storage. But the SCA expressly excepts conduct that is authorized by the person who makes or is the intended recipient of the communications. Employers have been using this “consent exception” for almost two decades in their technology use policies – if you want to work here, sign this policy that gives me the right to monitor your technology use.

Think it’s not consent if the employer requires access? If employers cannot compel employees to consent to things they do not like as a condition of employment, then we will need to rethink at will disclaimers, noncompete agreements, drug testing, and a host of things employers require of employees even though employees do not always like them. The SCA standing alone should not render illegal the review of applicants’ social media information.

Terms of Service

Another concern is that such access violates providers’ terms of service. Facebook has taken a strong stand – it will protect its users’ privacy and any attempt to force users to disclose passwords will be considered a violation of Facebook’s terms of service and will be dealt with accordingly.

Of course Facebook has the right to set whatever terms of service it likes, and the stand it has taken is the right one for it to take from a business standpoint. But how far can the social media provider reach? Can it stop an employer from requiring the look over the employee’s shoulder as described above?

Assess Liability

All of the above concerns warrant attention. But remember this – many of the largest verdicts against employers involve the conduct of those who are found to be known harassers. Of all the concerns raised here, the largest potential liability in most situations is the liability for failing to address harassment.

Do not be automatically scared away from social media information by the recent uproar. As with any other high stakes, tricky situation, work through all of the costs and benefits with counsel before deciding to proceed without what may be critical information.