In perhaps a world first, the east coast US state’s legislators have banned employers from demanding that staff provide their social media usernames and passwords. Would the practice be contrary to UK law already? Nicola Doran and Chris Stack investigate.
Topic: Social media
Who: The State of Maryland, USA
When: 2012
Where: USA and UK
Law stated as at: August 2012
What happened:
The state of Maryland is the first US state to enact legislation which expressly prohibits employers from requesting or requiring either applicants or employees to disclose their usernames or passwords for social networking sites ("SNS").
The same law further protects these groups by preventing employers from refusal to hire, terminating employment or instigating disciplinary proceedings on the basis of a refusal to disclose SNS details. There appears to be a growing trend across the United States for legislation of this kind with a number of other nations contemplating similar measures.
This emerging employer trend in the US is thought to have potential ramifications for the British employment market, especially amongst those American companies with a UK presence.
The practice of requesting an individual's SNS details has provoked a strong reaction in the UK. The head of the Trades Union Congress ("TUC"), Sarah Veale, views moves to build a picture of applicants' personal lives as both "dangerous and unnecessary". The Information Commissioner's Office, responsible for data protection, has stated that an employer's motives for requiring such information would be "questionable". On the social media side, a spokesman for Facebook has come out in equally vociferous terms in condemning the practice, citing it as a breach of its terms and conditions.
In the UK, employers requesting SNS details may leave themselves open to claims under human rights legislation for a breach of the right to a family life, or indeed under the Data Protection Act due to possession of excessive information about an individual.
From an employment law perspective, there is nothing per se to stop employers requesting that applicants hand over their SNS details. However, applicants are free to refuse to submit such information.
Employers should bear in mind that having access to personal details such as age and marital status as part of the recruitment process may leave them open to allegations of discrimination where a candidate is not hired.
For individuals already employed, employers requesting SNS details from employees or subjecting employees to recrimination as a result of failure to provide such details may find themselves facing claims of constructive unfair dismissal due to a breach of the implied term of trust and confidence.
Why this matters:
In 2006, the TUC labelled Facebook's 3.5 million users an 'HR accident waiting to happen' and it is not difficult to see why.
The emergence of this latest employer trend further reiterates the need for employers to develop clear and unequivocal social media policies. These policies must confront practical issues surrounding the use of SNS in both a personal and professional context and the employer's response to such use. Not only are there issues surrounding brand protection for employers to address, there is also a business protection issue surrounding reputation and confidential information.
SNS policies should be regularly communicated to members of staff and kept under review as new media develops.
Employers should also underline the public nature of so-called 'private' online activity, whether during or outside working hours, and clearly set out the consequences of any breach of such a policy.
Chris Stack and Nicola Doran
Solicitors
Osborne Clarke
Christopher.stack@osborneclarke.com
Nicola.doran@osborneclarke.com
