Employee privacy continues to be a complex and evolving area. As workplace technology advances and states enact new protections, employers are increasingly called upon to balance business interests with employees’ reasonable expectations of privacy. From monitoring remote workers to evaluating a candidate’s social media presence, each decision carries potential legal risk.
Social Media and Online Activity
Reviewing an applicant’s or employee’s online presence can offer insight into character or cultural fit, but it also presents substantial legal risk. Employers that examine personal social media profiles may inadvertently expose themselves to information about protected characteristics such as religious affiliation, sexual orientation, or disability status. If a hiring or disciplinary decision follows such a review, it may be difficult to demonstrate that the decision was not influenced by the existence of a protected characteristic. Notably, California Labor Code section 980 prohibits employers from requiring or requesting that employees or applicants disclose usernames or passwords for personal social media accounts; it further prohibits employers from requiring them to access personal social media in an employer’s presence.
To mitigate risk, employers may want to consider delaying social media reviews until after extending a conditional offer, delegating reviews to human resources personnel (rather than direct supervisors), and documenting the business rationale...
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