Millions of people log on to social media sites such as Facebook, Twitter and YouTube every day to chronicle the intimate details of their personal and professional lives. It should come as no surprise that some of these people are your current and prospective employees. While employers and human resource directors would like to believe that all of their employees are acting responsibly on the Internet, there nevertheless remains the possibility that one or more of them could be acting in a manner that may be contrary to their company’s principles, values or, more importantly, the strict and unforgiving mandates of its employment policies. Naturally, some level of curiosity exists as to employees’ and applicants’ dealings on the Internet.

Employers across the country are therefore turning to social media to weed out unwanted candidates from their growing list of applicants. They are also keeping an eye on how their employees are representing themselves (and, by extension, their companies) in an ever-increasing online world. Unfortunately, most online activities occurring on social media are protected by privacy settings that limit access to some or all of the content on users’ social media pages. Businesses are understandably wary of employees acting in a disparaging way while simultaneously displaying an affiliation to their company (such as listing the employer on their social media profile). Because of this, they are increasingly requesting access to employees’ and potential hires’ social media pages, so companies  can have access to the juicy morsels of information behind the privacy curtain.

But one critical question remains: Can an employer legally require applicants and employees to turn over access to their social media profiles, revealing all content and messages that various privacy settings often hide? If your company operates in Maryland or Illinois, the answer is an emphatic “no.” And if your company operates elsewhere, the slightly-less-emphatic-but-prudent answer is “probably not.”

In response to increased requests (or in some case, demands) for access to private social media content, employers, applicants and even Facebook have criticized the practice of employers viewing employees’ personal accounts, arguing that it runs afoul of privacy rights. Maryland lawmakers responded by recently passing legislation prohibiting employers from asking current and prospective employees for their user names and passwords to social media sites, such as Facebook and Twitter. The Maryland law further prohibits an employer from threatening disciplinary action if an employee refuses to disclose her password and related information. Shortly thereafter, lawmakers in Illinois followed suit by amending its Right to Privacy in the Workplace Act (P.A. 097-0875), which subjects employers who willfully violate similar prohibitions to fines of up to $200 per violation and also allows employees or applicants who allege violations to pursue civil court actions to recover actual damages, attorneys’ fees and costs. Other states, including California, Michigan, New Jersey and Pennsylvania are reportedly not too far behind in crafting similar legislation.

So, what are employers or human resource directors to do if they want to learn more about their employees’ and applicants’ online activities without subjecting themselves to violations of state law and civil liability? Why not try the following:

  • Start with Google. It is incredible how much information one can dig up using a simple Google search. With one click of a button, employers will find a variety of information, websites and online resources at their fingertips that can shed light on their employees’ and prospective employees’ out-of-work activities.
  • Search public social media content. While the Maryland and Illinois statutes prohibit employers from requiring employees and applicants to disclose their social media passwords, they do not prohibit employers from searching for publicly available information displayed on these websites. By simply entering their employees’ or applicants’ names into the search feature in Facebook, Twitter, LinkedIn or YouTube (to name a few), employers can oftentimes find a treasure trove of online information.
  • Search beyond the “popular” social media sites. Nearly everyone (including your parents) has a Facebook page, and most professionals have claimed their professional networking profiles on LinkedIn. While these social media sites are a great resource to uncover racy photos and controversial status updates, and to cross-check too-good-to-be-true employment histories, there is infinitely more information to discover. Blogs on WordPress or Blogger can include daily or weekly updates on an applicant’s personal life. YouTube may feature video diaries of employees abusing office equipment while on the job (“Office Space,” anyone?). Instagram may unveil any number of racy or inappropriate photos that may help sway an employer’s decision as to whether a particular employee or candidate is the best fit for the team. Access to information is limited only by the boundaries of creativity and time.

Hopefully, you never have to worry about this. You can rest assured knowing that your company’s rigorous background search produced only the most responsible candidates for employment who desire nothing more than to present an upstanding professional image to the community and precisely follow each and every letter of the guidelines laid out in your employment policy. But, in the unlikely case that curiosity begins to rear its ugly head, these guidelines will help you to avoid legal liability when investigating your employees and applicants using social media.