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The Social Media Lag

Due to the time-consuming, give-and-take nature of American democracy, our laws often lag behind shifting societal priorities and real-time innovation. Consequently, legislators have only just begun to acknowledge the role of social media as an integral component of the national economy and increasingly, as a catalyst for legal controversy. In the context of the workplace, a recent study found that 43% of hiring managers that research candidates via social media “have found information that has caused them not to hire a candidate.” Disputes have arisen in the context of screening, internal investigations, and “bring your own device” policies.

While procuring information from a public website may have an innocuous purpose, employers can easily run afoul of anti-discrimination laws such as Title VII of the 1964 Civil Rights Act.  If an employer is able to glean information about an applicant’s membership in a protected class, it makes it more difficult to argue that such information was not considered in conferring or denying an offer of employment.

While the Equal Employment Opportunity Commission (EEOC) has been tentative in pursuing such cases, it has reiterated that personal information from social media postings “may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information.” At least one claim of racial harassment due to a co-worker’s Facebook postings has been allowed to go forward. A separate, unsuccessful complainant alleged that an agency’s recruitment strategy placed older workers at a disadvantage due to a focus on social media recruiting. Reese v. Dep’t of Interior, EEOC, No. 0120122339, (Nov. 15, 2012).

As of yet, the federal government has not provided any definite legislative framework. A proposed bill, the Social Networking Online Protection Act, would prohibit employers from requiring an employee or applicant to provide access to a personal e-mail or social media account. H.R. 537. Additionally, two proposed Password Protection bills would penalize employers who compel or coerce any person to disclose a password to access to a computer not owned by the employer. H.R. 2077 & S. 1426.

In New York, a proposed bill would prohibit employers from requesting or requiring access to personal electronic communication accounts of prospective or current employees. The prohibition would not apply to “nonpersonal accounts or services that provide access to the employer’s internal computer or information systems” or in certain situations where the employer has paid for the electronic device. Bill No. A00443C. According to the National Conference of State Legislatures, thus far in 2014 legislation has been introduced or is pending in 27 other states.

As the varying forms of social media continue to proliferate, it will become even more important for both employers and individuals to stay abreast of their legal rights in this patchwork legal field. If you have questions or comments, please contact us at


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