Should GA Employers Demand Access to An Employee’s Social Media?

Posted by Benjamin D. Perkins on

Engaging in social media plays an important role in our personal lives, especially in the new work-from-home era. Many businesses, large and small alike, have also come to rely even more heavily on social media posts. In a time where many businesses are trying to tighten their fiscal belts, social media provides a relatively inexpensive means to promote services and products to a large audience.

Considering the increased reliance on personal and professional social networks or media accounts, it is unsurprising that the two types of accounts are sometimes conflated. For example, an employee might post from their personal account to tell their friends about a special their business is running or general posts about the company. Or, conversely, they may use their professional accounts to tell a long-time client that their child has decided to attend the client’s alma mater.

Employee’s Social Media
In many circumstances, employers might not think twice about the use of an employee’s social media to promote their business on personal accounts or connect personally with a client on a professional account. But what if an employee engages their personal accounts to publish nefarious messages about the company? Can an employer demand access to an employee’s personal social media account when, for example, the employee posts negative comments or begins degrading the company on their personal accounts?

Though Georgia employers may not be expressly prohibited from making such a demand, they could still face significant liability for doing so.

Georgia Law
There is not a Georgia law that specifically prohibits an employer from demanding access to a private employees’ personal social media account. Laws prohibiting this access exist in other states, but these laws have never taken effect in Georgia. While there is not a Georgia law specifically prohibiting access to a private employee’s personal social media account, Georgia’s private employers could still face significant liability under at least three other areas of the law.1

#1 The Federal Stored Communications Act
A Georgia employer could incur liability by demanding access to an employee’s personal social media accounts under the federal Stored Communications Act (“SCA”).

The SCA opens an entity to liability where it “intentionally accesses without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility” and “thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.”2

Though Georgia courts have not decided whether demanding access to an employee’s social media account could violate the SCA, other courts have suggested this demand may be violative of the Act.3

#2 Georgia Common Law Claim of Intrusion Upon Another’s Seclusion
A Georgia employer might incur liability under the common law tort of invasion of privacy. In Georgia, that claim might arise as the more specific claim of intrusion upon another’s seclusion.

To prove this claim, an employee would have to show that the employer’s demands constituted:
(1) “an intrusion upon his privacy, and
(2) that a reasonable person would find it highly offensive.”4

At least presumably, the employee’s privacy settings on their social media account would play into a court’s contemplation of this claim, as well as whether the employee freely and explicitly gave the employer permission to access the account.

#3 National Labor Relations Act
Finally, depending on how the employee is using their personal social media account, an employer’s demand might violate the National Labor Relations Act (“NLRA”).

Section 7 of the NLRA protects the rights of employees (even employees at a non-union company) to engage in protected concerted activity. Discussing the terms and conditions of one’s employment can constitute concerted protected activity. Thus, if an employers’ demand to access a social media account is aimed at stopping the employee from using social media as a venue to discuss terms and conditions of employment, it could violate the NLRA.

The Biden Administration
In addition to the above discussed liabilities that employers could face by demanding access to an employee’s private social media, employers should note that the Biden administration will likely push for additional legislation aimed at protecting employee’s rights in the workplace.

In the short time President Biden has been in office, he has already published several executive orders meant to increase workers’ rights. Considering the new President’s interest in protecting workers, and the increasing use of social media in the workplace, it would not be surprising if legislators began seriously contemplating laws that more directly shield employees’ private social media from their employers and began expanding protections under the NLRA.

Conclusion
Social media has pervaded our personal lives and businesses alike, and though it is a powerful tool, employers should be aware of liabilities it could expose them to. Employers should be cautious and consider seeking the advice of counsel before demanding access to employees’ personal social media accounts.

If you have questions or concerns regarding an employer’s right to demand access to social media platforms or accounts, or any other business-related concern, please don’t hesitate to reach out to us.

1 This article only discusses some of the liabilities that private employers might face when demanding access to an employee’s social media account. Public employers should be aware that there are potentially additional liabilities they could face stemming from public employees’ constitutional rights, like their right to free speech.

2 18 U.S.C. § 2701.

3 See, e.g., Pietrylo v. Hillstone Restaurant Grp., No. 06–5754 (FSH), 2008 WL 6085437, at *4 (D.N.J. July 25, 2008).

4 Peterson v. Aaron’s Inc., No. 1:14-CV-1919-TWT, 2017 WL 4390260, at *4 (N.D. Ga. Oct. 3, 2017).