Despite potential advantages, there are several reasons to steer clear of using social media as an HR tool.
Social media’s treasure trove of information often beckons employers who want to know more about staffers and job applicants.
On social-media websites such as Facebook, people may reveal information they never would willingly volunteer to a supervisor or human-resources person.
Several auto dealerships already have faced regulatory and legal challenges involving termination of employees and the accessing of their social-media comments and posts in that process.
Despite the potential advantages, there are several reasons dealerships should steer clear of using social media as an HR tool.
Several state laws prohibit employers from requiring employees or applicants to provide passwords or otherwise provide access to private social-media accounts. Similar legislation is pending in other states.
Dealers should keep in mind that any regulatory complaint or lawsuit alleging infringement of employee privacy likely will receive local publicity of a negative nature.
A U.S. District Court recently provided another reason for employers to stay away from employee social-media accounts. In Ehling vs. Monmouth-Ocean Hospital Service, the court ruled non-public Facebook content is protected by the Stored Communications Act.
The act stems from an early, pre-Internet effort “intended to afford privacy protection to electronic communications.” The SCA was adopted in 1986 during the era of dial-up modems connecting to closed, self-contained networks such as Prodigy, CompuServe, and America Online. The ubiquitous web browser didn’t debut until five years later.
The SCA prohibits intentionally accessing, without authorization, a facility providing electronic communication service, or intentionally exceeding an authorization to access that facility, and as a result, obtaining, altering, or preventing authorized access to a stored communication within the facility. A violator is liable for damages.
In the Ehling case, an employee posted comments on her nonpublic Facebook page criticizing paramedics who treated an elderly sociopath who killed a guard at the Holocaust Museum in Washington, and suggesting they missed an “opportunity to really make a difference!”
A co-worker who was a Facebook friend and had access to the nonpublic posting, brought a copy of it to the employer, who, in turn, suspended the employee who posted the comments.
The court found that accessing nonpublic Facebook postings violated the SCA, but also found the employer not liable under the SCA and state privacy law because it was given the information by the coworker who had access to the private Web page.
Dealership management should note the ruling does not address an employer’s right to review public postings. For example, a New Jersey municipal worker fired after posting an open Facebook rant against the town, President Barack Obama and the world in general will find no support here, because his comments were on an open and public Web page.
While prior cases had suggested the Ehling result, the decision makes it clear: a dealership’s unauthorized access of nonpublic social media postings would violate the SCA and create a cause of action for damages. Ironically, the SCA may find greater application in the Internet era than it originally had. But at least for now, material posted in open, public view is fair game for employer review.
Dealership management should keep in mind that the regulatory agencies and courts that oversee and decide on complaints and lawsuits are still part of a work in progress. It eventually will become the context for accepted practice involving employers, employees and their Internet postings.
Until then, check with legal counsel before taking action against an employee based on his or her private Internet communications.
Michael D. Gifford is an attorney with the law firm of Howard & Howard. He can be reached at firstname.lastname@example.org