What Employers Should Know about Access to Employee Social Media Accounts

Whether it’s LinkedIn, Facebook, Twitter, Instagram, or Snapchat, many employees are active on at least one social media network – maybe even all of them. But what happens when an employee’s personal social media use creates problems for an employer? What right, if any, does an employer have to access an employee’s social media accounts?

All too often, people say things online that they would never consider uttering in their so-called “real life” – and fail to recognize the consequences. An employee might use social media to “troll” and harass a co-worker. They could also post racist or sexist content that could potentially be linked back to where they work. These actions could both tarnish the public reputation of a company, or even bring liability from harassment lawsuits. It’s a new frontier of employment law, to be sure.

In either of those situations, an employer might have to launch an investigation into an employee’s social media use. Because of privacy settings, some of the allegedly problematic content may not be publicly available. The original posts could have only been available to certain people, or the employee may have since hidden them away from a prying employer’s eyes. In conducting the investigation, an employer might ask the employee to turn over usernames and passwords to their social media accounts so the posts can be retrieved and examined.

The problem with this request is that many states, including Michigan, now have laws barring employers from requesting access to employee social media accounts. Michigan’s Internet Privacy Protection Act (IPPA) is very specific, for example, stipulating that employers “shall not… request an employee… to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s… personal internet account.” The federal Stored Communications Act (SCA) would also protect the employee’s posts if the content was intended to be kept private on the site and not shared publicly.

Faced with this, it might seem employers have no way of dealing with a potentially serious situation caused by an employee’s use of social media. If the employer has gone as far as launching an investigation, however, access might be possible you can try this out. Section 5. (1) of Michigan’s IPPA allows an employer to request access to employee social media accounts in the context of an investigation “if there is specific information about activity on the employee’s personal internet account, for the purpose for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct.”

In Michigan, then, if an employer has credible information – such as a complaint – that an employee has been engaging in problematic activity on social media, the law will allow access to retrieve applicable posts in order to conduct an investigation. Any employer in this situation would be well advised, however, to speak with counsel to determine whether the facts of the case meet what’s required in the IPPA.

Employees will continue to use social media. It is not going away. When dealing with problematic social media use, however, employers must understand the legal protections afforded to employees, and act on issues accordingly.

Posted in Employment Law.