Trick or Treat? Checking an Employee’s Facebook Page Can Be Scary!

by Cindy Kolb

An employee spends the weeks leading up to Halloween talking about his great costume. Then, on Halloween, he calls off work claiming a family emergency. His employer is suspicious and wants to check the employee’s Facebook page to see if this is true or if the employee is headed to a Halloween party. While we all have heard stories of employees who have posted incriminating photos on Facebook, would checking the employee’s Facebook page be a “trick” or a “treat” for the employer?

First, in Arkansas, Act 1480 prohibits an employer from requiring or requesting current or prospective employees to disclose their social media account usernames or passwords. Act 1480 also prohibits an employer from requiring, requesting or suggesting that an employee or prospective employee “friend” (connect with) a supervisor, or even another employee. In other words, an employer cannot suggest that any employees add a supervisor or co-worker to their list of associated social network contacts.

So, do these new Arkansas laws mean that an employer cannot “friend” an employee? The sponsor of the Bill says that was not the legislative intent. Further, the Arkansas Department of Labor has said they will issue a regulation, after a public comment period is held, that would define “request” and “suggest” to mean the employer intends to induce the employee or potential employee to act in a manner they otherwise would not through stated or implied coercion. An employer who does so could be subject to penalties. So, in the Halloween situation described above, the employer should not coerce the employee to add them as a Facebook friend.

However, the new Arkansas law does not prohibit an employer from viewing information publicly available on the Internet. But, the EEOC has recently issued regulations concerning an employer’s use of social media and cautioned against “the snowballing problem” of potentially discriminatory practices in the Internet era. An employer may become aware of an individual’s protected characteristics such as marital status, sexual orientation, religious affiliation or political activities. In addition, under Genetic Information and Nondiscrimination Act (GINA) employers are prohibited from acquiring employee’s genetic information. Facebook, Twitter and other social media outlets may contain information about an employee’s genetic information that an employer is prohibited from obtaining.

Finally, there is no guarantee that information obtained from a social networking site is accurate. Individuals have had their pictures stolen from social networking sites and uploaded to fake social networking profiles. Therefore, employers need to know that checking an employee’s Facebook page can be scary!!

For questions about how to comply with Arkansas’ social media law, please contact one of our attorneys.

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