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October 08, 2015 Articles

Social Media Developments: Employers' Access and Discovery

Two trends have begun to emerge that may offer employers some guidance, if not complete certainty, as to when access to an employee's account is appropriate.

By David E. Gevertz – October 8, 2015

Few social developments have had as unforeseen an impact on privacy rights as the advent of social media. From relatively obscure roots such as college-dorm networks and music-sharing services, social-media websites such as Facebook and LinkedIn have blossomed into near-ubiquitous tools for social networking, professional development, and public advocacy, among other uses. Of course, social media presents many opportunities for employers as well, who can use social media to vet potential employees, improve employee cohesion and morale, and promote business.

However, the speedy rise of social media has created uncertainties as to the rights and limitations of employers vis-à-vis employees' rights to privacy on social media. Privacy rights become especially important when an employer seeks access to an employee's (or applicant’s) social-media account. Until recently, few signposts have existed to help employers know if, when, or how they may access these accounts. Two trends have now begun to emerge that may offer employers some guidance, if not complete certainty, as to when such access is appropriate. On one hand, state and federal law has increasingly limited the rights of employers to access employee's accounts while those employees are employed. On the other hand, if a former employee files suit against an employer, the trend is to allow greater access to that individual's account as part of the discovery process.

The trend to protect employees' privacy rights by limiting employers' access has been precipitous. In 2012, a few states, including Maryland, Michigan, and Illinois, began passing laws that prohibited employers from requiring that their employees disclose usernames, passwords, or other login information to access social-media sites. By 2015, that trend had spread to 21 other states. Now, even if an employee uses the account primarily to promote the employer, the employer may not be allowed to access that account without written permission. In Maremont v. Susan Fredman Design Group, Ltd., No 10 C 7811, 2014 WL 812401 (N.D. Ill. Mar. 3, 2014), the court applied the Stored Communications Act, 18 U.S.C. § 2701, et seq., to find that an employer was not allowed to access its marketing director's LinkedIn account without written permission, despite the fact that the employee had used that account to promote the company and stored login information on the employer’s computer.

However, recent case law has indicated that more general access to social media may be allowed during the discovery process should an employee sue an employer. Many social-media websites, including Facebook, allow for an individual account holder to request a download of his or her entire account—including pictures, emails, bulletin posts, and other online materials. This information may be relevant for a variety of reasons; however, it has been unclear to what extent an individual's privacy interest may limit employers' ability to discover this information. Recently, the District Court for the Southern District of Indiana provided helpful guidance on this issue in Appler v. Mead Johnson & Company, LLC, No. 3:14-cv-166-RLY-WGH, 2015 WL 561038 (Sept. 24, 2015). That court balanced the individual's right to privacy against the employer/defendant's discovery rights, noting that the issue was complicated by the fact that "privacy" settings on social-media accounts may vary. However, the court ruled that, given the employee’s demand for compensatory damages and other facts of the case, the plaintiff’s entire Facebook account was discoverable, subject to a few limitations on relevance (such as credit-card information, phone numbers, and religious views).

Employers who have found themselves in litigation may, therefore, be able to argue that broad access to a former employee's social-media accounts, extending all the way to a complete download, is discoverable as long as the employer can articulate a relevant basis for the request.

Keywords: litigation, civil rights, social media, discovery, privacy


David E. Gevertz is a shareholder with Baker Donelson in Atlanta, Georgia.

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