Jamie G. Miller Law

Social Networking & Computer Privacy

Generally, employers have the right to monitor their employees use of the Internet on computers owned by the employer, during employees’ on-duty hours. This allows employers to monitor your website activity, e-mail account, and instant messages. This right, howbeit, cannot be used as a means of discrimination. Federal laws prohibit employers from discriminating against a prospective or current employee based on information on the employee's social media relating to their race, color, national origin, gender, age, disability, and immigration or citizen status. However, employers can and do use information on such websites as a method of conducting background checks. Employees should therefore be conscious of what information they display on social media websites. To learn more about social media and computer privacy, read below:

1. What is social media and social networking?

Social media is considered any form of electronic communication through which users create online communities to share information, ideas, messages, and other content. Social media includes internet forums, social blogs, wikis, microblogging (e.g. Twitter), social networks (e.g. Facebook), and many others. Social networking is the use of social media to communicate with others. Many states have defined social media and social networking within their employee privacy policy statutes.

2. How does social networking and social media relate to the workplace?

In the United States, around 79% of adults use a social networking site. As a result, many employees post on these networking sites about their employer, their employment status, and workplace issues. According to 2018 survey , 38% of employers have fired employees over online content the employee posted. In addition, 70% of companies say they look up job candidates on social media and 57% of that 70% said something on on the candidate’s social media resulted in their rejected application. In some instances, employees have been terminated due to their comments and posts on social media websites.

3. Can potential employers use information from social media in the hiring process?

Employers want to ensure a potential hire is qualified and will reflect well on the company. As a result, many employers conduct a background check that includes viewing the public social media profiles of job candidates. An online profile can provide information on professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, current employment status, and other red flags.

However, there is potential discrimination if employers use personal information such as age, race, disability, religion, national origin, or gender to make a hiring decision. As a result, state and federal laws explicitly prohibit that kind of conduct.

4. Can an employer ask for my password to look at my social networking and social media usage?

There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts. In the past few years, more than twenty states have adopted legislation regarding employer’s access to employees’ and applicants’ social networking usernames and passwords. Most of these laws place a limit on employer access and prohibit employers from taking negative employment actions against employees who don’t provide this information. Employee Social Media Privacy Laws vary from state to state, so each state does not provide the same level of protection. You can stay up to date on states with social media privacy laws by visiting the National Conference of State Legislatures. For more information on this rapidly growing area of the law, contact an employment lawyer in your area.

5. If an employer asks for my social media password, how should I react?

Being asked for your social media password by your employer or potential employer can be a nerve-wrecking experience. As a result, you should be prepared for this question. Here are some things that you can do instead:

  • Create a page that is purely business and bring that up;
  • Make sure you only put information on Facebook that portrays you in a positive and professional light and require your tagged photos to be approved by you;
  • State you would be glad to bring up your LinkedIn or Google profile instead as that is business-related;
  • State that Facebook is like a diary, something to be opened only by people with authorization;
  • Ask them to bring their page up and then search for you.

Note that if your state’s law protects you from providing this information and being punished for refusing to do so, you are not required to provide your login information. If you believe that your employer had violated your state’s employer privacy law by asking for the username and password to your social media accounts, you may want to contact an employment attorney.

6. Can my employer legally monitor my computer and Internet activities?

Yes, and most employers do. Employers concerned about lost productivity, excessive bandwidth usage, viral invasions, distribution of company information, as well as their liability for sexual and other forms of harassment when explicit documents are exchanged via e-mail or the web, believe that monitoring is an important deterrent to inappropriate Internet and computer usage.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use.

Courts have generally agreed that an employee does not have a reasonable expectation of privacy when using a device owned and issued by the employer. In one case, the court ruled that even though the employer told its employees that their e-mail communications would not be intercepted and that the employees would not be reprimanded or terminated based on the contents of their e-mails, the terminated employee could not assert that his reliance on these employer promises should prevent his termination by the employer.

In addition, some union contracts or state laws may limit an employer's ability to monitor your computer activity. For example, California and Illinois laws require employers to consent from third parties before accessing emails sent to employees, while Connecticut and Delaware laws require employers to inform workers that their emails are being monitored. Additionally, Colorado and Tennessee have laws that require companies to set email monitoring policies.

Federal laws such as the USA PATRIOT Act may also require monitoring and disclosure of suspicious employee activity to law enforcement. Otherwise, there are few laws that have been enacted to protect your computer privacy at work.

7. What can my employer monitor on my computer?

The Federal Electronic Communications Privacy Act (ECPA), allows an employer to monitor all activities employees engage in on computers if an employer provides the computer, making it company property.

  • Internet use;
  • Software downloads;
  • Documents or files stored on your computer;
  • Anything that is displayed on your computer screen;
  • How long your computer has been idle;
  • How many keystrokes you type per hour; and
  • E-mails, both incoming and outgoing.

If you can do it on your work computer or on devices such as PDAs provided for your work use, then you can expect that your employer has the ability to monitor it. It is also legal for employers to monitor screen contents and the keystrokes typed per hour on a work computer.

Check your employer's policies and/or personnel handbook to see if your employer has a specific policy about what monitoring it does. Even without a policy, however, your employer still may still be monitoring your computer and Internet activity.

8. Can my employer legally monitor my e-mail?

Work Email
Generally, yes. Whatever correspondence done through a company email account is considered the property of the employer. This means that it can be monitored by the company without notice to the employee. The legal reasoning behind this is because courts have ruled that there is no reasonable expectation of privacy on a work email. Courts have also generally ruled that the interests of the employer in monitoring content of work emails outweighs the employee’s privacy interest.

Private Email
Yes, with certain limitations. Although some federal laws such as the Electronic Communications Privacy Act (ECPA), Electronic Communication Storage Act (ECSA), and the Computer Fraud and Abuse Act (CFAA), along with some state laws, generally make it illegal for employers to intercept private e-mail or use your personal username and password to access e-mails on an Internet Service Providers' server, employers may monitor e-mail from the work e-mail address provided to you, or monitor any e-mail stored on your work computer. Only two states, Connecticut and Delaware, require employers to notify employees that their e-mail is being monitored.

Certain companies even have software that aids them in monitoring your e-mail. Such software pulls up any e-mails that mention "key words" such as:

  • Porn
  • Sex
  • Promise
  • Beat
  • Sure thing
  • Medication
  • Boss
  • Social Security Number/SSN
  • Patient record
  • Client file

If you want to send a private e-mail, it is best to use non-work e-mail accounts such as Yahoo! (R), MSN Hotmail (C) or Gmail (TM). However, these e-mail accounts can sometimes be monitored as well. In one case, an employer searched through an employee's personal e-mails accounts on a company computer, gaining access to the accounts due to the storage of the employee's user names and passwords on the computer. Although the employee won the case, employees should be aware of the potential that any saved usernames and passwords on a company computer may be subject to monitoring by the employer.

It is best not to discuss non-work related or private issues at all while using your office computer, if you are concerned that your employer may be monitoring your computer activities or your employer's policies permit computer and Internet monitoring.

9. Can my employer legally fire me for information that my employer has read in an e-mail?

Yes. Outgoing e-mail, or e-mail going from one co-worker to another, can be used as the basis for firing employees. Over 28% of companies say that they have fired employees for misuse of office e-mail or Internet usage, and so far, courts have usually sided with the employers.

Be careful about speaking negatively about your bosses, coworkers, or the company for which you work in e-mails, especially when these emails are sent from your work address. It is also important to double-check your address line before sending emails, as workers have been both embarrassed and fired for sending a private email to the incorrect person or group of persons.

You may have some protection if you are communicating with your coworkers about work conditions, under laws that protect an employee's ability to engage in "concerted activity." If you have been fired or disciplined for complaining about your working conditions to other coworkers through e-mail, or for using your work computer for union organizing activities consult a labor and employment lawyer in your area to determine whether your rights have been violated. Similarly, if you use e-mail to complain about discriminatory behavior or blow the whistle, you may be protected under whistleblowing or antiretaliation laws.

10. Can my employer legally fire me for my Internet use at work?

Yes. Employers are concerned about their liability for sexual harassment and have fired workers for visiting sexually explicit or pornographic websites at work. They also worry about the loss of productivity caused by Internet surfing during work hours. Further, employees have been fired for using the Internet for non-work-related activities such as online shopping or sports sites.

As your online activity is likely being monitored, be sure you know what your employer's monitoring policy is before engaging in unrelated activity during work time. You should not visit any websites that you would not want your employer to see or that your co-workers might find offensive. While most employers do not mind if your personal internet use is occasional and doesn't interfere with your work, some employers do mind, and expect you to confine your personal Internet usage to non-work hours.

11. Can my employer legally fire me for the content that I post on my personal website, blog, social networking, or social media website?

Generally, an employer can fire you for off-duty conduct, such as having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work-related website that you don't access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them, to potential clients, or reflects badly on the company.

California, Colorado, Connecticut, Illinois, Minnesota, Nevada, New York, North Dakota, and Tennessee all have laws that prohibit employers from firing an employee for engaging in lawful http://www.legis.nd.gov/cencode/t14c02-4.pdf?20150306133113, or for using lawful products like cigarettes during off-duty hours. However, courts in these states will weigh the employee protections against an employer's business interests, and typically rule that the employer’s interests outweigh employee privacy concerns, therefore the employer is exempt from the law. Some laws provide explicit exemptions for employers.

For example, in Colorado, employers are exempt from the law if an employee's off-duty activities relate to a bona fide or genuine occupational requirement, or is reasonably and rationally related to work activities. In addition, some state laws regarding personnel records may protect an employee's off-duty Internet activities. For example, in Michigan and llinois employers cannot gather or keep record of an employee's communications or non-employment activities, without employee consent. However, exceptions exist in both states that allow employers to keep records of an employee's criminal activity, activity on the employer's property, and activity on the employer's time which may cause damage to the employer's business. Outside of these exceptions, employers may be liable for violating these record keeping laws or retaliating against an employee based on information that has been improperly recorded.


Although an employer might legally be able to fire you for your content on social networking and media websites, the National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers' social networking and media usage can be protected if it is "concerted activity" for the purpose of collective bargaining, mutual aid or protection. This means that protesting about working conditions might be protected, while complaining about a boss might not be. If an employer's social networking policies are broad and unclear, that works against the employer when the court is determining whether the employee’s conduct was protected by the Section 7, Right of Employees provision of the National Labor Relations Act (NLRA).

In addition, an employer may be violating federal law if they access Facebook posts of an employee, when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to the employee's Facebook friends. This can occur when the employer is not a Facebook friend of the employee, and the employer accesses the posts without authorization, or intentionally exceeds authorization.

In mouth-Ocean Hosp. Serv. Corp., 961 F. Supp.2d 659 (D. N.J. 2013), a co-worker of a registered nurse took screenshots of the nurse's Facebook wall posts and sent them to a hospital manager. The court ruled that Facebook wall posts are electronic communications, transmitted by an electronic communication service, placed in electronic storage, and can be deemed private if the Facebook user set her privacy settings to limit access to information on the user's Facebook profile. However, because the co-worker who provided the screenshots to the manager was a Facebook friend of the nurse, an exception to the Stored Communications Act applied, meaning the hospital for which the manager worked was not liable for any wrongdoing under the Act.

If you are unsure about whether your rights have been violated, please contact an employment lawyer in your area.

12. Don't I have a First Amendment Right to say what I want on my social media accounts?

Generally, you do not have that right in the workplace. Only public government employees have free speech protections and those are very limited. As a private employee, you can be fired for your speech in the workplace or outside of it.

For government employees, 'Liking' a page may be protected speech under the First Amendment. In a recent case, a federal appeals court decided that a government employee who worked for a sheriff, but liked a Facebook page showing his support for a different candidate for sheriff, was speaking as a private citizen about a matter of public concern. The court found that the employee’s actions did not disrupt the work of others in the office, and his interest in showing support for the candidate outweighed the current sheriff's interest in maintaining effective and efficient public services. In this case, that court viewed the 'Liking' of a page on Facebook as speech or political activity that could be entitled to First Amendment protections for public employees.

13. Can my employer force me to promote their products or services on my personal social media accounts?

It depends. Most states that have employee social media privacy laws also prohibit your employer from requiring that you market, post, or promote their products or business on your personal social media page. Not only this, but your employer runs into the risk of violating certain Federal Trade Commission (FTC) rules and regulations on advertising. Comments made to Facebook or Twitter by an employee could be viewed as advertisements or endorsements subject to FTC regulation. Additionally, the comments might be considered unfair and deceptive acts in commerce.

Generally, it is okay to ask employees to use their personal accounts to promote the business, but the question of whether it can be required has not been addressed by federal law makers.

14. Can my employer monitor my Instant Messaging?

Yes. Employers also have the technology to read and monitor your instant-message conversations on services like AOL Instant Messenger (R), Windows Live Messenger (TM) etc. Signs show that more and more employers are using this technology. Employees should assume that their instant messaging on a company system is being monitored and is not private.

15. What if I deleted a document or e-mail from my computer, is it safe from being monitored?

No. Information that you have deleted from your computer is often available for your employers to monitor. Even though they appear erased, documents and e-mails are often permanently backed up on the office's main computer system.

Even worse, deleting personal documents from your work computer may violate the law, depending on what context and for what purpose the content was deleted. Recently, the court held that an employee who used a program designed to clean off the hard drive and permanently erase documents, called a "secure delete" program, before returning a computer to his employer, violated federal hacking laws designed to prevent damage to networked computers. Another held that a worker erasing documents from a company-owned computer after filing a lawsuit against his employer was in essence tampering with important evidence in the case,

Before permanently deleting any documents on your work computer, check with an employment lawyer in your area, especially if you have been terminated or contemplate filing a lawsuit against your employer.

16. I feel that my employer's computer usage policy has violated my privacy rights or might be discriminatory. What can I do?

While employers have considerable leeway in monitoring employee computer and internet usage, if you feel that your privacy rights have been violated by your employer or believe the enforcement of your employer's policy is discriminatory, contact your state department of labor, or an employment attorney. In addition, your state’s employee privacy statute may include a section the serves to inform you of your rights when your employee rights and protections under the statute have been violated.

17. If a lawsuit has been filed, what should I do with my social media?

In this digital age, lawyers will investigate or gather evidence anywhere, including your social media. As a result, you should be cognizant of your social media use. Tweets, posts, e-mails, pictures, and videos may be used against you. Exercise caution by:

  • Limiting your privacy settings;
  • Not accepting friend requests from anyone you do not know;
  • Limiting your electronic communications to people you know and can verify.
  • If a case has been filed, let your attorney know of things on your social media accounts that may hurt you, but get your attorney's advice about whether to delete anything, as there may be restrictions imposed by the Court once a case is filed.

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