The fact that employment and business laws in Massachusetts have failed to keep pace with the exponentially-expanding social media landscape should surprise no one - particularly when you recognize that the state's "blue laws" still restrict certain firms from doing business on Sundays and holidays.
Our Boston business attorneys recognize that this has left both employees and employers with a huge question mark when it comes to legal information gathering and sharing with regard to potential applicants and current employees.
As an example, just because there is no law against using Facebook or Twitter to screen potential workers or monitor employees -- does that mean you should? Are you crossing some shady legal line, or does it just make smart business sense?
On the one hand, social media networks are treasure troves of information to which companies may not otherwise have access. For example, many firms may find it valuable to ascertain whether an employee or potential employee is projecting the sort of image the firm wants to maintain. "Friending" current employees could also be a way to keep undesirable behavior in check, which may otherwise reflect poorly on the company.
There is ample concern that doing so may be a violation of discrimination laws, privacy rights, intellectual property rights and even National Labor Relations Act restrictions.
Now, there may be another consideration: A bill has been introduced by a state representative on the Committee on Labor and Workforce Development that would specifically limit an employer's ability to mandate submission of social media log-in and password information as a condition of employment, as well as the employer's ability to require employees to add their supervisor to their "friends" lists.
Rep. Cheryl Coakley-Rivera, who is introducing the measure, indicated that such actions open a window of information to employers that they would otherwise not be legally entitled to possess. For example, information such as a person's age, marital status, religion, medical history or sexual orientation is readily available on these sites. Yet, current state law prohibits companies from asking applicants to reveal this kind of information -- and employers are also prohibited from using it to make decisions regarding whether to hire or fire someone.
Coakley-Rivera introduced a similar bill last year, but it failed to make it into law. The new bill, called "An Act relative to social network and privacy employment," was introduced last month. Not only would the measure make it illegal for companies to require employees or applicants to hand over passwords or add the business to its "friend" list, it bars companies from taking adverse employment action against a worker or applicant who refuses to do so.
The measure would exempt social media accounts created solely for professional use on behalf of the firm. It also would not stop a company from maintaining its policies on acceptable social media communication by employees or use of the firm's own equipment.
As it now stands, the bill has a considerable amount of support, with 46 co-sponsors so far signing off. A total of six states have so far passed similar laws, and 11 other states have bills pending.
But even in the interim, employers may be taking a risk in requiring workers or potential workers to hand over this information. As we wait for the law to play catch-up with technology, it's important for businesses with questions on the development of company-wide social media policies to consult with an experienced local business attorney for a better idea on how to proceed.