If the intersection of social networking and workplace privacy laws piques your attention, you may find an article written by my colleague Michael Frankel particularly interesting. He writes about a recent case, Pecile v. Titan Capital Group, LLC out of New York, where the court refused to grant the defendants’ request for access to the plaintiffs’ social network accounts. The court held that the fact that information contained in the plaintiffs’ social network accounts could contradict the plaintiffs’ claims of emotional distress was not a sufficient reason to compel production of that information.
The issue of the discoverability of an employee’s social networking activities in litigation provides an opportunity to remind companies that several states have laws that restrict an employer’s ability to access employee and prospective employee social media accounts, or even request permission to access. The following states currently have such laws in effect: Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah, and Washington, while a Vermont law commissioned a study to look at the issue. Click here for more information about these laws.
This legislation portends a potential increase in litigation against employers in these states that have not taken appropriate steps to bring outdated hiring and monitoring practices into compliance with these laws. Even if upper-level management has taken, or is taking, steps to correct past practices which may now be prohibited, it is also important to ensure that lower-level managers and supervisors are informed of these developments as they frequently have more day-to-day contact with the employees and prospective employees whom these laws are designed to protect.