Don’t Ask Me to Be Your Facebook Friend: Social Media and the Workplace in Colorado

With the amount of information that exists about people on the web, naturally employers are tempted to check up on it, for purposes of hiring, evaluations, and firing. Some employers take this to the level of requesting, even requiring, current or prospective employees to give their passwords or allow access onto their profiles. At least in Colorado, this practice is forbidden.

Colorado’s Social Media and the Workplace Law¹

Colorado has a specific law dealing with employer access to employee social media. Under the law—which has been on the books since 2013—employers cannot require applicants or employees to provide passwords or change privacy settings to give access to social media accounts. Heck, they cannot even suggest or request this. If the prospective employee’s Facebook page is “friends only,” the employer is out of luck.

In addition, Colorado employers cannot refuse to hire someone, or discipline them (or even threaten to do so), for not disclosing passwords, “friending” the employer, or changing their privacy settings.

But all is not lost from the employer’s perspective. Employers can comply with securities laws or investigate allegations that company proprietary or financial information is being downloaded. Employees can still be required to keep information confidential. And the employer can still ask the employee to be a social media friend—but can’t compel them or take any disciplinary action if they refuse. Good manners and common sense should prevail here—people don’t usually punish people who don’t want to be friends. This is true across social media. In addition, some forms of social media, like LinkedIn, are considered more professionally suitable than others, and thus more likely to include coworkers or bosses as friends.

Exercise Caution When Using Social Media in Hiring

Perusing a potential hire’s social media accounts is often seen as a cost-effective piece of the selection process. In Colorado, while some social media screening is permissible, employers should proceed with caution. For one, if an employer does insist on requiring access or otherwise violating this statute, the employee or prospective employee can file a complaint with the Department of Labor and Employment, which will investigate and have a hearing. An employer in violation will have to pay a small fine (and a large legal bill).

Colorado’s statute is not the only reason employers should tread lightly when using social media in hiring or other employment decisions. Even before the statute was enacted, it was always a bit problematic to check up on applicants and employees through social media. Some reasons for not hiring/firing someone could be discriminatory, like age, disability, and genetic information, and even having accessed the information creates suspicion. For example, an employer who looks through an applicant’s Facebook profile and discovers the individual may have a disability, and then chooses not to hire them may face an Americans with Disabilities Act (ADA) claim based on the argument that the decision not to hire was based on the individual’s disability. Even if the employer had a legitimate, non-discriminatory reason for not hiring the candidate, the fact the employer went onto social media and discovered the disability could potentially complicate the matter. One possible approach is to have the review completed by a person who is not otherwise involved in the hiring decision, and to give instructions to only pass on information that reflects on legitimate concerns.

Conclusion

Colorado’s law on social media in the workplace touches just one aspect of how social media and HR often collide. Because social media use is so widespread, employers would do well to develop policies governing social media use. But don’t stop at simply ensuring compliance with Colorado’s law. A well-drafted policy can also cover issues like employee social media use, company-owned social media account access, and other related topics. Having a good policy in place can ensure compliance with the law and help employers avoid a myriad of other potentially sticky legal issues.

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¹ § 8-2-127, C.R.S. 2017.