Employers control of the social media accounts as a prerequisite of employment in the United States of America
Historical perspective on how the businesses in the United States of America have operated
Social media has become global and pervasive as many people are signing up and getting their profile up online (Livingstone, 2008). The people can chat with each other at a lower cost to the extent that the revenue of the conventional telephone company has been affected in the process. Business has also taken up social media since it is the best platform that they can use to talk and meet with their clients. The company used the conventional form of advertising such as the mainstream media to promote their products to the clients and to ensure that they attract clients to the business. Most of the companies used the billboards, radio, television, and posters to get the message to the clients. The companies used to get the information about the current and prospective employees from the former employees since the ways in which a given company would monitor the clients was limited. In the modern age, the social media has made it easier for people to learn about each other. Businesses routinely use social media in the promotion of their businesses and brand. The companies may also use social media to provide the customer care services and to have a closer link with the clients in the market.
The company may also use social media to conduct competitive research and find the competitive talent that will help them in achieving their goals even as they look for ways of pleasing their clients. The employees are very active on the social media sometimes for their reason, and in other times they carry out the work-related activities. The companies have always had various policies in the workplace that govern the use of media in the organization as well as communication in general. Some of the employers have come up with several policies that govern the use of social media in the organization, and the employees are under obligation to follow them to the latter, failure to which they will face disciplinary action. Many risks have come up with regards to the use of social media both on the side of the employees and the employers. Most of the employers often do not have a dedicated social media policy that will govern the use of several social media sites in the company. The contentious issue is whether the employees should be allowed to monitor the social media sites as the employees are using them or not.
The social media is one of the platforms that employers can use to get information about prospective employees in a given organization. It is easier to learn the personality of an individual based on the way he or she conducts himself or herself on the social media. According to the Fourth Amendment in the United States of America addresses the fundamental right of privacy that all the people in the country are entitled to. Access to the people’s social media accounts would be a violation of their fundamental right to privacy.
On the other hand, employers also have the right to get information about the employees that they are about to employ in the organization. There is a need to draw the line between the rights of the employers to have information about the employees and the rights to privacy that the employees are entitled to. However one cannot be sure of his or her privacy on social media since many people can access the information to the detriment of the user. Glenn v. Hose Master was an appeal case where the plaintiff allegedly posted a discriminatory racial video that got him fired. In the original lawsuit, the judges favored the defendant who made the plaintiff to appeal the decision. In the lawsuit and the appeal, the plaintiff alleged that he had been dismissed as a retaliation for the fact that he had filed for employee’s compensation after suffering an injury on his finger. The judgment was affirmed meaning that the dismissal of the plaintiff was as a result of the racially offensive video was the reason why he was dismissed which shows that illegal use social media could land one in trouble. The employers need such information so that they can decide whether to employ an individual or not (Roth, Bobko, Van Iddekinge, & Thatcher, 2013).
The company is allowed to monitor the social media wall of the employees if they voluntarily accept the friend request sent by their employers on Facebook. Packingham v. North Carolina is a case that involves a commercial sex working network. It is important to note that the expectations of privacy are likely to go down in the case where an employee is using the computers belonging to the company where they work. The National Labor Relations Act (NLRA) was enacted in the year 1935 with the intention of protecting both the employees and the employer to encourage collective bargaining. The law is enforced by the National Labor Relations Board (NLRB) and protects the rights of the employees and enables them to work together in addressing the workplace conditions. The legislation also covers the conversations that are conducted on social media with regards to the experience of the people in the workplace. The NLRA only protects the postings on the social media postings that are related to the activities that are conducted in the workplace. According to the NLRA, the social media policies should not be so broad to the extent that it prohibits the discussion of wages and working conditions (“Social Media Policies: Employment Law Center: Justia,” n.d.).
The current legal authority
19 DE Code § 709A (2016) directs that the employer should not request or require an employee or an applicant to disclose his or her user name that will allow the former to access personal social data on the social media. The employer should not direct the employee to access his or her social media account in the presence of the former. The legislation also prohibits the employer from using the personal social media as a condition for employment. The employer should not add an employee on a social media group where the personal information of the employee will be tapped. The employee should not tamper with the social media accounts of their employees that will allow the third parties to access it. The legislation considers the fact that all the employees are entitled to their privacy as they use social media for communication and carrying out their activities.
Different arguments on each side of the issue
It is argued that the employees have the right to know the kind of person or the kind of people that they are employing in the company. There are cases where various companies have ignorantly hired people with questionable character who have ended up causing trouble in the company. The argument is that if the organization were able to know the character of the people, it would be easy to avert several problems that come with the company hiring people with questionable characters. One of the best ways to get information that will give leads to the character of an individual is through the use of social media.
The other argument is the fact that the employees have a right to privacy hence their social media accounts should never be accessed by the employees. The employees are likely to use the information maliciously, or they may use it well depending on the person who has access to the information in question. Full knowledge of the employees will protect the company from the problems that are associated with the bad character of the people.
The strongest argument
The company should be given a chance to get some information from the employees’ social media accounts because it will protect the company from future troubles. Many companies have made many losses in the hands of rogue employees. Some such as Nakumatt in Kenya are on the verge of collapsing as a result of bad management. If the company could have enough information about the people who they have employed in the organization, then the companies will be protected from criminals. Allowing the companies to monitor the social media activities of the people will play a big role in making most of them responsible in all that they do to the benefit of the organization (Kluemper, 2013).
Recommendation to the SCOTUS regarding ruling on the issue
I would recommend that SCOTUS looks at all the arguments surrounding the issues so that they can come up with the best expert decision that will be beneficial for both the employees and the employers. Sometimes it is hard to please all the people in the decisions taken. In such a case they should look at the greater good for the society. Come up with a decision that will prevent the decline in the economy of the country and at the same time take care of the rights of the people in the society. For instance, the employees working for sensitive sectors such as banking and the health sector are supposed to be monitored including looking at what they do on social media. Some companies can only thrive if they have a good image in the society. Such should be allowed to monitor the employees. The court should also admit the evidence from the social media with regards to some of the wrongs committed so long as it has been collected legally and all the rights of the people have been considered in this case.
Exceptions in the recommendations
The employers should never be allowed to access the passwords for the social media sites since that will be a violation of the rights that the employees have to privacy. The other exception is that the company should allow the people to air their grievances freely so that in the case where their right is being infringed, the relevant authorities will deal with the issue accordingly. The companies should allow people to exercise their freedom of using social media and help them in solving some of the problems that they face in society. The other exception with regards to the issue is that the court should not admit any evidence that was collected in a way that is contrary to the rights of social media users. The people who access the other people’s social media accounts illegally should be prosecuted.
The anticipated future of the issue
There are several future anticipations with regards to the issue. The internet is becoming cheaper and more people are joining the social media site. It is anticipated that most of the interviews will be done through the social media meaning that it is a topic that a person cannot overlook. The social media is also a good marketing site that many companies are investing in the present. The situation is expected to increase in the future. Online work and gigging is now the new trends as several companies are moving away from having employed people carrying out their tasks but rather they use the services of the freelancers. The government should be ready to make laws that will govern the freelance work because it is becoming more popular in the nations today. It is hard to control the online working performed by various people because the laws that could be used in governing them are lacking in society today. Artificial intelligence is also taking over meaning that most of the tasks that are performed by human beings will be automated. Automation is good but should be controlled as a way of ensuring that the people in the society are protected and that the work done is performed in the best way possible (Kluemper, 2013).
2016 Delaware Code Title 19 – Labor CHAPTER 7. EMPLOYMENT PRACTICES Subchapter I General Provisions § 709A. Employer use of social media.
Glenn v. Hose Master, L.L.C., 2016-Ohio-1124.]
Kluemper, D. H. (2013). Social Network Screening: Pitfalls, Possibilities, and Parallels in Employment Selection. Social Media in Human Resources Management, 1-21. doi:10.1108/s1877-6361(2013)0000012005
Livingstone, S. (2008). Taking risky opportunities in youthful content creation: teenagers’ use of social networking sites for intimacy, privacy, and self-expression. New Media & Society, 10(3), 393-411. doi:10.1177/1461444808089415
Packingham v. North Carolina, 582 U.S. ___ (2017)
Roth, P. L., Bobko, P., Van Iddekinge, C. H., & Thatcher, J. B. (2013). Social Media in Employee-Selection-Related Decisions. Journal of Management, 42(1), 269-298. doi:10.1177/0149206313503018
Social Media Policies:: Employment Law Center:: Justia. (n.d.). Retrieved from https://www.justia.com/employment/hiring-employment-contracts/privacy-in-employment/social-media-policies/