Dear Atty., Can I demand access to an employee’s Facebook account?

“Dear Atty.” is a new column aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

Dear Atty.,

Something happened the other day that has me steamed. I am the HR Manager for our company. We are thinking about changing health insurance plans. This has met with some resistance from our employees because they are comfortable with our existing plan. Well, I found out that one of our employees, I’ll call her Pandora, is criticizing the company’s change in health insurance plans on her Facebook page. I tried to go onto her Facebook page to see what she was saying but, writing-on-laptop-1197801-mapparently, I can’t see it unless I am her Facebook “friend” (I don’t want to be her friend). Here are my questions: Can I make Pandora give me access to her Facebook account so I can see what she is saying about the company and, if what she is saying is negative, can I fire her?

Signed,

Confused by Social Media

Dear Confused,

I agree. Facebook certainly can be annoying at times. I mean, how many videos of cute animals are we expected to actually watch? That aside, your situation poses a couple of potentially serious legal issues.First, you probably cannot compel Pandora to provide you with access to her Facebook account.

The Law: Under the recently enacted Wisconsin Social Media Protection Act, an employer is prohibited from, among other things, requesting or requiring that an employee or   applicant disclose access information to the employee’s or applicant’s personal internet account or otherwise grant access to or allow observation of that account. Employers also are prohibited from discharging or otherwise discriminating against an employee who refuses to disclose access information or to allow observation of the employee’s personal internet account. An employer can, however, access or use information about an employee or applicant that can be obtained without access information or that is available in the public domain.

So, because Pandora has privacy protections on her Facebook page such that it cannot be viewed by the general public, you cannot compel her to allow you access to see that page. You also are prevented from watching over her shoulder while you compel her to access her account.Secondly, even if you could access Pandora’s Facebook page and she said something negative about the company’s change in health insurance, you likely would be prevented from disciplining her due to Section 7 of the National Labor Relations Act (“NLRA”).

The Law: Very few employers know that Section 7 of the NLRA applies to both union and non-union employers. Section 7 provides, in part, that employees have the right to engage in “concerted activities” for their “mutual aid or protection.”

In other words, employees have the right to discuss their terms and conditions of employment (such as health insurance in this situation) with each other. The theory is that openly discussing workplace issues allows employees to band together to improve their working conditions. For example, did you know that employees have the right to tell each other how much they are being paid? Many employers have policies saying that wage information should be kept confidential. Under Section 7, such policies are illegal. Being able to compare pay information allows employees to ensure that they are being paid fairly in comparison to their co‑workers.

The National Labor Relations Board in a recent case found that discussing terms and conditions of employment on Facebook is activity that is protected by Section 7 of the NLRA. It also is worth cautioning that the National Labor Relations Board recently has begun to scrutinize Section 7 cases very closely.

So, Pandora probably has the right to post about the health insurance change on her Facebook page…especially if she has co-workers who are Facebook “friends” with her. The law gives Pandora the right to express her opinions in this situation…no matter how annoying they may be.

But, Dear Confused, do not despair. You are not entirely powerless in this situation. I suggest that you meet with Pandora and let her know that you are aware of her concerns regarding the new health insurance plan (assure her, however, that you are not monitoring her Facebook page and have no desire to do so). Ask her to share her concerns and do your best to alleviate them. By doing this you are sending Pandora the clear message that, not only do you care, but that, in the future, she can come to you with her issues…instead of blabbing them all over Facebook. Good luck!

Signed,

Atty.

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PeterAPicIf you would like additional information about this topic, please contact Pete Albrecht. Pete is the president and a shareholder at Albrecht Backer Labor and Employment Law. He has represented employers for over 28 years.

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