It is becoming more common for employers to conduct some sort of online research of applicants. One concern with researching applicants using social media is that social media profiles often readily allow visitors to determine certain characteristics and information protected by federal and state law. For example, an applicant might not be visibly pregnant during a job interview, but by checking her Facebook page and viewing discussions about the applicant’s pregnancy, an employer may potentially waive any future argument that it was not aware of her protected status. Another concern that has yet to be addressed by the courts, is whether employers have an affirmative obligation to search for and review publicly available information on social media sites under negligence theories. Some employers even took the controversial step of requiring applicants to provide access to their personal sites during the application process. This practice raises issues under privacy laws, electronic monitoring statutes, and state and federal constitutions, but have not yet been litigated in court.
In late 2012, Michigan enacted the Michigan Internet Privacy Protection Act (IPPA), which prohibits employers from requesting that an employee or applicant grant access to, allow observation of, or disclose information that allows access to or observation of “personal internet accounts,” such as Gmail, Facebook and Twitter. Under the IPPA, an employer may not discharge, discipline, fail to hire, or otherwise penalize an employee or applicant declining such requests. There are, however, several noted exceptions.
Excerpted from the Michigan Chamber’s Employment Law Handbook: Hiring & Firing authored by attorneys from the Miller Canfield law firm.