Oct. 2, 2013 – More than 1.5 billion people worldwide will use a social networking site this year, according to recent estimates. Thus, there’s more than a good chance one of those individuals will post something distasteful, offensive, or incriminating.
These posts may garner attention from employers, educational institutions, or landlords who monitor and screen the social media activity of current and potential employees, students, or tenants. But a pending Wisconsin bill places restrictions on this practice.
The Social Media Protection Act, currently pending in committee, prohibits employers, educational institutions or landlords from requesting that current or prospective employees, students, or tenants give them access to personal Internet accounts. The term "educational institution" is not limited to colleges and universities.
The proposed bill, AB 218, also includes retaliation provisions that bar discharge, discrimination, or discipline if a request is denied. Violators are subject to a $1,000 fine.
According to Milwaukee employment lawyer Jesse Dill, most employers don’t ask for passwords or usernames to social media sites such as Facebook, Twitter, or LinkedIn.
“I don’t know of any employer that actually does this in practice,” Dill said. “For those that do, they’ll have to adjust their application and general employment policies.”
More frequently, employers review social media profiles that are publicly available, Dill says, and the proposed bill does not prohibit employers from searching or reviewing public social media information that is not restricted by passwords or usernames.
Monitoring Social Media Activity
Reportedly, employers have used monitoring policies to protect trade secrets or confidential information, or to limit liability for copyright or trademark infringement.
More often, says Dill, employers may want to protect the business’s reputation or ensure employees are not violating workplace policies. For instance, there are reported cases where employers used social media to uncover abuse of FMLA laws.
“The employee could be out on FMLA for a migraine, but he or she is seen on TV singing at the capitol, or posts photos through social media that call into question whether use of FMLA was legitimate,” said Patricia Lauten, deputy city attorney for Madison, in a recent interview.
Most social media sites allow users to select a level of privacy, restricting access to friends and family. Others keep their accounts open and available to the public at large.
“If you have your name out there on an open profile, it might be something an employer looks at as part of their application and interview process,” Dill said. “Obviously, individuals should be careful with what they are posting on social media sites.”
Although requests for access to password-protected social media accounts may be rare, it is happening enough to prompt a tidal wave of legislation nationwide in recent years. And the legislators pushing AB 218 indicate that it’s happening in Wisconsin.
A Wave of Legislation
In 2012, Maryland became the first state to ban employers from seeking password-protected access to social media accounts. Since then, 13 states have enacted similar laws. In 36 states, including Wisconsin, social media privacy laws are pending.
Maryland’s law responded to a case involving a corrections worker who was asked to disclose Facebook access information as a condition of job reinstatement. The agency’s policy allowed such access to screen prospective employees for gang affiliations.
The wave of legislation followed.
Most states are placing restrictions on employers. Some states are placing or attempting to place restrictions on employers and educational institutions. Wisconsin is attempting to place restrictions on employers and schools, as well as landlords.
“I believe Wisconsin is the only state to include landlords in this type of legislation,” said Pam Greenberg at the National Conference of State Legislatures.
Tristan Pettit, a Milwaukee lawyer who represents landlords, says he’s never heard of a landlord asking for social media passwords from tenants or prospective tenants.
“Landlords must treat everyone the same,” Pettit said. “This type of practice would just open landlords up to fair housing complaints. I’ve never heard of it happening.”
Extensive research revealed no reported case involving a landlord requiring tenants or prospective tenants to grant access to private social media accounts, but for whatever reason, Wisconsin lawmakers have chosen to include landlords in the legislation.
“It could just be that landlords, like employers, are in a position to make determinations through an application process,” Pettit says.
Social Media Monitoring Liability
Most reported cases involve employers who request social media access from job applicants or as a condition of employment. In other instances, some college athletic departments reportedly require student-athletes to submit to social media monitoring.
For instance, some athletic departments partner with companies like Varsity Monitor, a social media monitoring platform. The company “monitors” social media sites that student-athletes use, and that requires athletes to grant access to their accounts.
Varsity Monitor red flags social media activity that may hurt the program’s reputation or indicate that athletes are not complying with program policies or rules.
NCAA rules don’t require such social media monitoring, according to attorney Bradley Shear, a law professor who helped Maryland draft its social media law. In his blog, “Shear on Social Media,” he says schools that self-impose social media monitoring policies may create a legal duty to monitor, and could later be found liable for negligent monitoring.
AB 218 specifically states that employers, educational institutions, and landlords have no duty to monitor personal Internet account activity and cannot be liable for failing to request or require that subjects provide access to personal Internet accounts.
Rep. Melissa Sargent (D-Madison), a bill co-sponsor, says this "no duty to monitor" measure could save employers millions in social media monitoring and other costs, including "legal fees and judgments inherent with negligent social media monitoring." But are there other situations that could give rise to liability?
"There are certainly situations in which an employer could be held liable for the social media conduct of employees, but it will always be highly dependant on the facts and circumstances at issue," Dill said. "If indeed passed, potential parties will have to wait and see how far courts will hold that protection applies, if at all, to claims that do not rely on this law.
"Part of the challenge is that social media is such a relatively new phenomenon that new ways to raise it in the legal system are occurring all the time."
