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Employment attorneys grapple with new social media worries


Employment attorneys grapple with new social media worries


Federal Reform Act’s failure causes concern for new job applicants

By Dan Heilman
Dolan Media Newswires

Less than a month after the House of Representatives voted down the Federal Communications Commission Process Reform Act of 2012, the effects are starting to play out on Capitol Hill and in the courts.

The vote means the Federal Communications Commission can’t stop employers from asking job applicants for their password to Facebook and other social networking sites.

The implications already are 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 Fabian May & Anderson PLLP, Minneapolis.

Employment attorney Joshua Williams said he’s seen 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, of Minneapolis, 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.”

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 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.

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 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 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.”


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