Employment attorney cautions employers about social media - Business, Government Legal News from throughout WV

Employment attorney cautions employers about social media

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With technology outpacing the law in certain instances, it's an interesting time in employment law, said Mario Bordogna, a Morgantown employment attorney with Steptoe & Johnson.  

Social media remains at the heart of controversy in employment law, and many recent media reports have indicated some employers going as far as asking potential employees for Facebook logins and passwords.

Bordogna said although rare, these cases are concerning.

"Even though this is getting a lot of attention nationally, I don't know too many employers actively pushing boundaries like that," he said. "It's questionable and potentially dangerous if you want to worry about crossing privacy rights or simply getting off on the wrong foot with them."

One point Bordogna finds interesting is the fact that Facebook wanted to pursue action against such practices.

"Facebook said if you request this information from our users such as profile info or private login info, it doesn't just interfere with their privacy rights, but it violates our terms of use. I found it very curious because again, law and statute aside, you are looking into something where Facebook is threatening to take action against a nonmember for violating rights of their users," Bordogna said.

Bordogna said the reason employers may be crossing this boundary is because of the fascination with the information social media can provide.  

Information once hidden from an interviewer is now at one's fingertips.

"Some employers would like to know things of direct relevance to their line of work," he said. "If an employee has demonstrated by way of social media profile that they are a habitual or prolific substance abuser, they would prefer to know that. It's natural instinct."

However, employers must be careful.

Bordogna said although the mere request for a candidate's login and password is not illegal, employers could run the risk of violating federal law by accessing private information.

"A lot of employers ask inappropriate questions, but it's not necessarily unlawful. It's more boorish than anything," he explained. "But if you get into something on there and make a decision on traits you otherwise would not know about, there are potential violations for privacy."

Such protected traits could include everything from race, religion, gender or disability. As an example, Bordogna said asking candidates about religious affiliation would not be against the law, but the employer could not base a decision on it.

"In other words, you probably don't want to put yourself out there like it seems you might have made that decision based on that," Bordogna said.

Bordogna recommends employers to go through a separate business entity if they want to find out information related to the position at hand.

For example, if an employer wanted to see if a person was a drug user or had a connection to gang violence, it would not be against the law to ask a third party to see if there is such information on a person's public profile.

"It's a practice some employers do, but not enough," Bordogna said.

"If I was a third party entity who provided those services to employers, I would be reluctant to take password information that was obtained to access private aspects of that profile," Bordogna continued. "They would face the same risks of being charged with a violation of privacy."

Bordogna said job candidates also must keep in mind they do not have to provide the information.

"You could run the risk of not being considered further for the job, but you don't have to do it," Bordogna said. "There are more and more people competing for less and less jobs and there is some pressure on people who don't have work or are struggling to find work."

Bordogna said it will be interesting to see how lawmakers address social media in the future. He explained lawmakers in several states not only are encouraging scrutinizing this practice but to push legislation through Congress to stop employers from doing it altogether.

"Any legislation is unlikely, but they didn't hesitate to get it out in the public world," he said. "It's a very interesting reaction on their part…It may take a little while longer before the possibility of its passage though."

One reason Bordogna said it may take a while is because there are other government agencies that already police employers in that respect, such as the Equal Employment Opportunity Commission.

"I do expect it to remain in the public consciousness because so much related to social media does. Although, it doesn't mean laws governing it are going to go through in the near future."

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