Where to Draw the Line for Privacy Regarding Social Media

Social media is a new legal frontier and laws are pending or being passed to keep pace with this advance in technology. As an employer, is it legal to ask employees or job applicants for their social media user names and passwords?

The NY legislature proposed a bill that addresses this question. As of May, 2014, A.B. 433 is sitting with the Senate Committee on Labor, and if passed, the bill would prohibit employers from asking employees or job applicants for their social media passwords.

Despite the fact no NY statute currently prohibits employers from asking for social media passwords, the New York State Bar Association advises employers against it. The NYBA cites various case rulings that favored employees’ privacy rights over employers’ attempts to discover possible defamation or trade secrets violations.

Here are some cases in point:

  • Pietrylo v. Hillstone Restaurant Group (2009). After requesting Pietrylo’s login username and password, the manager at Hillstone Restaurant repeatedly accessed her MySpace chat room accounts. Pietrylo felt her job was in jeopardy if she refused to provide the login information, and the court viewed the employer’s actions as coerced authorization or authorization “provided under pressure.” Also, because MySpace makes it clearly known that the site is private and only gives access to invited members, the court decided the employer’s actions violated public policy. It ruled the defendant unlawfully accessed the plaintiff’s social media account.
  • Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC (2008). The District Court for the Southern District of New York addressed the issue of whether an employer accessed the defendant’s private Gmails and Hotmail emails without authorization. The defendant had saved his logins on a company computer. After the employee left the company and set up a competing business, the employer brought an injunction against the employee claiming stolen trade secrets and proprietary information. The plaintiff argued that saving private login information on a company computer gave implied consent. The court disagreed and found that the employer’s actions violated the Stored Communications Act (SCA), a federal law prohibiting unauthorized access to facilities that provide electronic communications services.

You can avoid disputes over social media access and other issues that put your business at risk by working closely with an employment law attorney. For more than three decades, Stephen Hans & Associates has served New York business owners through employment and labor law representation.

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