Monday, March 7, 2016

Social Media Pics May Hurt Your Employment

Social media pics are so commonly shared.  Many a social media user posts pics of dinners with friends, vacations spots, golf outings, parties, gatherings, and much more.  They each can tell a story and the story is about you.  When you share and what you share can have an impact on your career and your current job, and even the school you are desiring to attend. Yet, it is hard to think that this would be the case.  But with employers vetting candidates, finding out about the social interests of a candidate or even an employee becomes interesting to the soon to be the employer or the current employer. This curiosity spills into the radar of your supervisor who is wondering what you are doing during your medical leave.
The question does percolate on the concern over how is one’s privacy respected?  Another related question is does someone relinquish such privacy when the person posts activities and events of him or herself participating.  In Jones v. Gulf Coast Health Care, [1] the court dealt most with the issues germane to the Family Medical Leave Act (FMLA).  What the court focused on was the balance of needing a special accommodation and where the employ’s FMLA right was infringed.  While determining the plaintiff’s argument that its firing infringed on its FMLA rights, the court stated “As long as the employee has been given the requisite leave period, the statute does not forbid an employer from discharging an employee who fails to come back to work at the expiration of the leave.   In this case, the plaintiff returned one day late.  Court further states, “An employee’s insistence on taking more leave than is allowed by the FMLA is not protected conduct.”[2]

The social media privacy of the employee is up for grabs.  By 2014, over twenty states enacted legislation regarding employers’ access to employees’ and applicants’ usernames and passwords.  While they each vary over employers allowable treatment of employees social media login credentials and their access to them, many states have pending legislation in Georgia, Florida, Hawaii, Massachusetts, Illinois, and even Minnesota and others placing restrictions on the access by employers to the employees’ login credentials.  New York’s pending legislation seeks to amend the New York State Online Privacy Protection and Internet Safety Act and establishes the New York State Online Accounts and Social Media Privacy Act.  It goes further than other states by prohibiting even prospective employers from accessing credentials and social media information.
In 2015, Florida’s S.B. 126 sought to prohibit employers from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances, from taking retaliatory personnel action for an employee's refusal to allow access to his or her social media account; and authorizing civil action for a violation, did not succeed beyond committee.  In Florida’s 2016 legislative session, S.B. 186 prohibits employers from requesting employees and prospective employees of their social media account information.   However, it does permit employers to request such information for ‘business purposes.’  Other states are dancing the same ‘can do” and “cannot do” line without a clear definition for what can be a construed as a ‘business purpose.’  This is only going to fuel more litigation helping attorneys’ bottom line.
[1] Jones v. Gulf Coast Health Care of Delaware, LLC, (M.D. Fla. Feb. 18, 2016).
[2] Armburst v. SA-ENC Operator Holdings, LLC, No. 2-14- cv-55-Ftm-38CM, 2015 WL 3465760, at *5 (M.D. Fla. June 1, 2015).

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