Last month, the Federal Communications Commission Process Reform Act of 2012 was voted down by the House of Representatives, meaning the Federal Communications Commission can’t stop employers from asking job applicants for their password to Facebook and other social networking sites.
The implications of that vote are still likely to be played out, both on Capitol Hill and in the courts, as the use of Facebook, Twitter and other sites in the workplace continues to increase. Going forward, what legal role will social media sites play in disputes between employers and employees?
They’re already playing a role in discovery proceedings, especially when employers are trying to gather facts about employees who have initiated legal action against them.
“Either employers are trying to get ahold of employee social media content in order to try to dig up dirt, or they’re looking for inconsistent statements to make them look bad at trial,” said Nick May of Minneapolis.
Minneapolis employment attorney Joshua Williams said he’s also seeing an increase in discovery requests, with some employers’ attorneys even trying to get releases from Facebook, Twitter and MySpace to release client information.
“I’m still learning how to handle that,” Williams said. “I’ve pushed back every time and essentially said, ‘We’re not going to give you any releases. If you want to try to subpoena Facebook, go right ahead.’”
“I haven’t seen a lot of authorities giving guidance on how to handle these requests,” he said.
Some lawyers aren’t sure there’s much to worry about yet. Minneapolis attorney Angela Brandt, who mostly represents employers in her employment work, said a lot of the consternation over the issue so far has been in the form of discussion, not action.
“The outside lawyers are buzzing about it more than clients,” she said. “It seems there are lots of people trying to do CLEs and offer advice.”
The controversy is rooted in an Associated Press report from earlier this year that indicated some public and private employers were asking job seekers for their social media credentials. The legality of making the surrender of a password a condition of employment is an unsettled topic and could stay that way for a while. Sens. Charles E. Schumer, D-N.Y., and Richard Blumenthal, D-Conn., have called on the Justice Department and the Equal Employment Opportunity Commission to investigate the constitutionality of such practices.
Ironically, Maryland just passed a bill making it illegal to ask for social media passwords. It was the state’s Department of Corrections that asked for a Facebook password, setting off the storm.
The House’s vote on the FCC seems to run counter to a pair of laws already on the books, May said. The Stored Communications Act or the Computer Fraud and Abuse Act, respectively, prohibit intentional access to electronic information without authorization and intentional access to a computer without authorization to obtain information. That’s another conflict in the issue that is likely to be hashed out in the courts going forward.
“Both of those acts say you can’t gain authorization to a computer or a protected site without the permission of the person who owns the password,” May said. “The scenario people fear is that they’ll be in a job interview, and the person doing the hiring asks for a password. Your chance of getting the job could ride on whether you say yes or no. Is that coercion?”
There’s also the possibility that the latest development is simply part of the ongoing legal conversation about what’s OK and what’s not when it comes to using social media at work. One issue that’s cropping up more often is the dissemination of private, proprietary or embargoed company information, often by accident, on the part of employees. Sometimes an employee might think he’s doing the right thing by touting his company’s new technology on Twitter, only to find out later that the information was supposed to stay under wraps.
“If you have a company that has confidential information, or information of clients, they’re going to be a little more concerned that employees understand and follow policies relating to social media,” Brandt said. “That’s more likely to be actionable. There’s not nearly as much concern anymore over people complaining about their jobs on Facebook.”
Employers’ attorneys are beginning to understand that access to social media information could simply be a new rule in an old game: Civil litigation rules have long allowed attorneys to seek access to any information that can be reasonably expected to lead to relevant information.
“If I were on the defense side, I’d want to take a look at that stuff, too,” Williams said. “Our position, though, is that you’re not allowed to go on a fishing expedition through my client’s online life.”