Q. Our company received a report that an employee who called in sick on a Thursday and Friday later posted photos to her Facebook page that indicated she was traveling in another city with friends at the time. It appears she lied to us about being sick. Can we require her to give us her Facebook password so that we can see her online postings?
A. Probably not. There are federal electronic communication laws that prohibit unauthorized access to an individual’s online accounts and any consent that is arguably coerced is not likely to be considered voluntary under these laws.
In addition, at least 11 states (Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Mexico, Oregon, Utah and Washington) have passed laws that prohibit employers from requiring applicants or employees to provide user names or passwords for social media accounts. More states are considering such legislation.
You may, however, still act based on the information you’ve received in other ways. You could ask the individual who reported the post to you if that individual is willing to provide you access to the posts through his or her Facebook account. Again, you should make sure that any consent you obtain is truly voluntary and you should not go beyond the scope of the consent that you receive.
You can also interview the individual who saw the post and determine if anyone else at your company may have seen the post.
If you have one or more employees who provide credible corroboration of the post, you may determine that the report you received is credible, even if you don’t see the post itself.
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