Social Media In The Workplace

I have previously posted about the intersection of social media and the workplace.  Prior posts are here and here.  Recently, however, there has been a lot of buzz around how employers are attempting to obtain from employees or prospective employees the username and password ("login") information relating to their social media accounts so they can snoop around and see what they are doing in their spare time.  Employers are then purportedly using this information when making hiring and other employment decisions.  Here is a good interview of a law professor that discusses many of these issues.

Whether employers can request this information and access your private accounts is unclear.  The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed.  This often proves very challenging for courts and lawyers. 

I have a visceral reaction to the idea of providing login information to an employer.  But why is that?  And if asked, are you required to provide your employer access to your social medial profiles?  What are the consequences if you refuse the request?

The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship.  While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private.  We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment.  Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers. 

When posting to Facebook, we often don't think about that disclosure line.  We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer.  So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer.  The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.

Do you have to provide the information requested?  There are arguments that existing law may prohibit an employer from accessing your private social media accounts.  The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data.  The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized?  One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA.  Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.

Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access?  Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account.  So if you authorize your employer to access your account but Facebook has not, is the access authorized or not?  This issue is unresolved.

And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute.  The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.

And what if you are an applicant for employment who is asked to provide your login information?  We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc.  Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision.  But by asking for your login information, are they in essence asking for this information and violating the law?  This is unresolved as well.  Some in congress are taking action to investigate this practice and put a stop to it.

There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason.  If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations?  Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information.  I tend to agree.

But what should you do today if your employer asks for this information?  First, ask your employer why it needs the information.  There may be a less intrusive way to get the employer what they want.

Second, ask what will happen if you choose not to provide the login information.  Will you be fired?  Is there some other negative consequence that will occur? 
Third, ask if you can consult with an attorney before making a decision.  If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed.  If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence.  You may also want to consider telling them that you believe what they are doing may violate the law. 
All of these decisions have consequences that cannot be predicted.  The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.

Is Wisconsin's War Just On Women?

Wisconsin's Democrats have been claiming that Governor Scott Walker recently signed a law repealing Wisconsin's Equal Pay Enforcement Act as part of Republican's "war on women."  I covered this issue in some prior posts (here and here) as the law was passed out of Wisconsin's Assembly.  In my first post, I erroneously argued that the Assembly's bill would repeal Wisconsin's law providing for equal pay to women for the same work as men.  My post was based on an erroneous statement made by a Wisconsin's Democratic Assemblywomen's facebook post.  My friend Bart Torvik set me straight on that point, pointing out that the bill did not, in fact, repeal Wisconsin's law requiring equal pay for equal work.  Instead, it repealed people's right to seek certain damages for any type of discrimination in state court.
Nonetheless, Wisconsin Democrats have been trying to gain political traction by claiming that the repeal of this law will have a disproportionally negative effect on women.  Given that the law afforded all employees, regardless of gender, an avenue for redress in state courts, I do not think it is fair to claim that its repeal will have a disproportionate affect on women or that it constitutes a repeal of Wisconsin's law ensuring equal pay for equal work.

Those pushing for the repeal, however, have arguably provided a basis for some to claim that the repeal was motivated in part by gender. Wisconsin State Senator Glenn Grothman, who championed the repeal, argues that any gap in pay between men and women stems from women's decision to focus on child rearing instead of their career.  When shown statistics that even when taking life choices such as child rearing into account women still earn less than men, Grothman cited unsubstantiated "liberal" bias in the study and stated that he believed men cared more about money than women: "You could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious."

Obamacare At The Supreme Court: Get A Life

In a recent post, Adam Gillette at the Gillette-Torvik blog provides a fantastic reason we should ignore the theatrics and spin arising from the Supreme Court oral arguments on Obamacare and get out and enjoy our unseasonably warm spring. 

Brodkorb Case, Ctd.

I was recently interviewed by Minnesota Lawyer, a weekly newspaper for Minnesota's legal community, on the Brodkorb case which I have posted on in the past here, here and here.  The article in which I was quoted is here.  The take away from the article is that most legal observers believe Brodkorb has a very difficult case for the reasons I have previously stated.  The paper also ran an article on Brodkorb's decision to go so public with his allegations and threats of exposing other affairs in which I was also quoted.  It is an interesting analysis of the pros and cons of trying your case in the press.

Minnesota's Proposed Right To Work Law: What The Heck Is This Thing?

You may have heard that the Minnesota legislature is considering passing a law or having us vote on a constitutional amendment making Minnesota a Right To Work (RTW) state. RTW laws essentially allow people to opt out of joining a union at their workplace and paying dues. Currently, workers in Minnesota can opt out of being a union member if their workplace is unionized. However, they are typically required to pay the union a "fair share" of the dues, i.e. a percentage of the dues they would pay if they were full union members. The thought is that because these non-union members get some of the benefits the union provides (such as the pay and benefits negotiated by the union) they should have to provide some compensation to the union for obtaining those benefits for the employee. RTW would allow employees to opt out of the union and not pay the union anything, including a fair share.

Like many other issues, this one is highly political. On one hand, you have Republicans and the Chamber of Commerce arguing RTW will decrease unemployment and increase wages. On the other, you have Democrats and labor unions arguing the law will not decrease unemployment and will lower wages.

I found a couple of articles that I think lay out the positions and facts on RTW. You can read them here and here. But do your own research so if you are asked to vote on this measure, you are making an informed decision.

Senate Scandal Post Script

I have one more thought about Former Minnesota Senate Communications Director Michael Brodkorb's potential legal claims against the Senate. Specifically related to the potential damages he may recover. At the end of this recent article, Brodkorb's attorney justifies the half million dollar settlement demand by stating: "His career has been irreparably damaged. He’s having a very difficult time finding new employment.”

Ask yourself this question. Has his career been damaged and is he having difficulty finding a job because he was discriminated against? Or is he experiencing these problems because he held a very public job and his voluntarily affair with the married Senate majority leader became public knowledge? Is it the alleged discrimination or the very public display of his poor decision making skills that has stunted his career?

Update: Senate Sex Scandal

I had previously posted about the circumstances surrounding the resignation of former Senate Minority Leader Amy Koch and the termination of her staffer Michael Brodkorb.  Brodkorb had previously threatened possible litigation, but it was unclear at the time what the facts were underlying his potential claim(s).

Today, Brodkorb confirmed what had long been believed - that he and Koch had an affair.  The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb's attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act.  Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired.  In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination. 

In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb's attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb's case.  Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as "blackmail." 

I think Brodkorb has at least three serious obstacles to succeeding on his potential claim.  First, he needs to prove that the females who allegedly not fired for having affairs were "similarly situated" to Brodkorb in all material respects.  That means that they had similar responsibilities, reported to the same people, etc.  Brodkorb was the communications director of the Senate.  I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb's.  If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.

Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination.  While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.

Finally, Brodkorb's claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another.  If there is one thing I have found that people lie about under oath, it is sex.  Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred.  I wish him luck with that. 

In sum, I don't think Brodkorb's alleged claims have much merit.  But what really bothers me is the behavior of his attorney.  That is the type of thing that gives all lawyers a bad name.