These days, social media is everywhere. The options are truly limitless. While platforms such as Facebook have been around for more than a decade, the law on the matter is just beginning to catch up. Employers must be aware of the developing legal landscape surrounding new technologies, especially as they relate to social media.
Numerous concerns and red flags should be considered before using social media for various purposes. For example, by now it is common knowledge that many employers will look to social media to learn whatever they can about an employee or a potential job candidate. While many people have realized this and, in turn, have updated their privacy settings accordingly, many haven’t caught on and have very inappropriate information on social media sites for all to see which could end up costing them a job. On the other hand, even though many people have set their social media pages to “private,” many employers still want to know what is on these mostly public forums. While this is tempting and may be a great source of information, business owners need to realize that they could face severe penalties if they pursue access to these social media pages too aggressively.
In California, “an employer shall not require or request an employee or applicant to: (1) disclose a username or password for the purpose of accessing personal social media; (2) access personal social media in the presence of the employer; or (3) divulge any personal social media” (with limited exceptions). Cal Labor Code §980.
Similarly, in Nevada, “it is unlawful for any employer to (1) directly or indirectly, require, request, suggest or cause any employee or prospective employee to disclose the user name, password or any other information that provides access to his or her personal social media account; or (2) discharge, discipline, discriminate against in any manner or deny employment or promotion to, or threaten to take any such action against any employee or prospective employee who refuses, declines or fails to disclose the user name, password or any other information that provides access to his or her personal social media account.” NRS §613.135
While some employers may believe that social media portrays a more real picture of their current employee or applicant for employment, both California and Nevada have drawn a line that an employer must not cross. This is just one example of how social media can affect businesses. Employers need to realize that social media offers great opportunities for advertisement and branding, but also creates a number of traps that can hurt businesses. It is important for every business to take the continually evolving legal landscape into consideration when writing their social media policies into marketing plans and employee handbooks.