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Your Rights Computer Privacy

This page provides answers to the following questions:

1. What is social media and social networking?

2. How does social networking and social media relate to the workplace?

3. Can potential employers use information from social media in the hiring process?

4. Can an employer ask for my password to look at my social networking and social media usage?

5. Can my employer legally monitor my computer and Internet activities?

6. What can my employer monitor on my computer?

7. Can my employer legally monitor my e-mail?

8. Can my employer legally fire me for information that my employer has read in an e-mail?

9. Can my employer legally fire me for my Internet use at work?

10. Can my employer legally fire me for the content that I post on my personal website, blog, social networking, or social media website?

11. Don't I have a First Amendment Right to say what I want on my social media accounts?

12. Can my employer force me to promote their products or services on my personal social media accounts?

13. Can my employer monitor my Instant Messaging?

14. What if I deleted a document or e-mail from my computer, is it safe from being monitored?

15. I feel that my employer's computer usage policy has violated my privacy rights or might be discriminatory. What can I do?

16. If a lawsuit has been filed, what should I do with my social media?

1. What is social media and social networking?

Social media is considered any form of electronic communication through which users create online communities to share information, ideas, messages, and other content. Social media includes internet forums, social blogs, wikis, microblogging (e.g. Twitter), social networks (e.g. Facebook), and many others. Social networking is the use of social media to communicate with others.

2. How does social networking and social media relate to the workplace?

In the United States, more than 2/3 of online adults use a social networking site. As a result, many employees have made comments and posted media to these websites about their employer, their employment status, and workplace issues. In some instances, employees have been terminated due to these comments and media posted on these sites. In other ways, employers have used social media to conduct some sort of background checks on potential hires.

3. Can potential employers use information from social media in the hiring process?

Employers want to ensure a potential hire is qualified and will reflect well on the company. As a result, many employers conduct a background check that includes social media. An online profile can provide information on professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, current employment status, and other red flags.

However, there is potential discrimination if employers use personal information such as age, race, disability, religion, national origin, or gender to make a hiring decision. As a result, state and federal laws explicitly prohibit that kind of conduct.

4. Can an employer ask for my password to look at my social networking and social media usage?

There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts. However, some states have passed legislation that prohibit that practice -- California, Delaware, Illinois, Maryland , Michigan, and New Jersey. Other states are considering similar legislation. For more information on this rapidly growing area of the law, contact a lawyer.

5. If an employer asks for my social media password, how should I react?

Being asked for your social media password by your employer or potential employer can be nerve-wrecking experience. As a result, you should be prepared for this question. Here are some potential things you can do instead: (1) Create a fan page that is purely business and bring that up; (2) Make sure you only put information on Facebook that portrays you in a positive and professional light (however, you can't control what a friend might post); (3) Say you don't have a Facebook page (although they may search for you); (4) State you would be glad to bring up your LinkedIn or Google profile instead as that is business related; (5) State that Facebook is like a diary, something to be opened only by people with authorization; (6) Ask them to bring their page up and then search for you.

6. Can my employer legally monitor my computer and Internet activities?

Yes, and most employers do. Employers concerned about lost productivity, excessive bandwidth usage, viral invasions, dissemination of proprietary information and their liability for sexual and other forms of harassment when explicit documents are exchanged via e-mail or the web believe that monitoring is an important deterrent to inappropriate Internet and computer usage.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use.

Some union contracts or state laws (such as those in California), may limit an employer's ability to monitor your computer activity. Only two states, Connecticut and Delaware, have requirements that obligate employers to notify employees that their e-mail is being monitored. Otherwise, there are few laws that have been enacted to protect your computer privacy at work.

7. What can my employer monitor on my computer?

The technology exists for your employer to monitor almost any aspect of your computer usage, such as:

  • Internet use
  • Softward downloads
  • Documents or files stored on your computer
  • Anything that is displayed on your computer screen
  • How long your computer has been idle
  • How many key strokes you type per hour
  • E-mails (outgoing or those sent within your office)

If you can do it on your work computer or on devices such as PDAs provided for your work use, then you can expect that your employer has the ability to monitor it. Check your employer's policies and/or personnel handbook to see if your employer has a specific policy about what monitoring it does. Even without a policy, however, your employer still may be monitoring your computer and Internet activity.

8. Can my employer legally monitor my e-mail?

Yes, with certain limitations. Although federal [Scales cite: <Federal Electronic Communications Privacy Act, 18 U.S.C. § 2511, Electronic Communication Storage Act, 18 U.S.C. § 2701, and Computer Fraud and Abuse Act, 18 U.S.C. § 1030>] and state law generally make it illegal for employers to intercept private e-mail or use your personal log-on and password to access e-mails on an Internet Service Providers' server, employers may monitor e-mail from the work e-mail address provided to you, or monitor any e-mail stored on your work computer.

Certain companies even have software that aids them in monitoring your e-mail. Such software pulls up any e-mails that mention "key words" such as:

  • Porn
  • Sex
  • Promise
  • Beat
  • Sure thing
  • Medication
  • Boss
  • Social Security Number/SSN
  • Patient record
  • Client file

If you want to send a private e-mail, it is best to use non-work e-mail accounts such as Yahoo! (R), MSN Hotmail (C) or Gmail (TM). However, these e-mail accounts can sometimes be monitored as well. It is best not to discuss non-work related or private issues at all while using your office computer, if you are concerned that your employer may be monitoring your computer activities or your employer's policies permit computer and Internet monitoring.

9. Can my employer legally fire me for information that my employer has read in an e-mail?

Yes. Outgoing e-mail, or e-mail going from one co-worker to another, can be used as the basis for firing employees. Over 27% of companies say that they have fired employees for misuse of office e-mail or Internet usage, and so far, courts have usually sided with the employers.

Be careful about saying negative things about your bosses, coworkers, or the company for which you work in e-mails, especially when using your work address to send this information outside the company. Also, be very careful to check your address line before sending your e-mail, as workers have been very embarrassed - if not out of a job - when copying a private e-mail intended for only one or a few individuals to the company intranet, large distribution list, or listserv.

You may have some protection if you are communicating with your coworkers about work conditions, under laws that protect an employee's ability to engage in "concerted activity." If you have been fired or disciplined for complaining about your working conditions to other coworkers using e-mail, or for using your work computer for union organizing activities, you should consult an attorney familiar with labor law issues to determine whether your rights have been violated. Similarly, if you use e-mail to complain about discriminatory behavior or blow the whistle, you may be protected under whistleblowing and/or antiretaliation laws.

10. Can my employer legally fire me for my Internet use at work?

Yes. Employers are concerned about their liability for sexual harassment and have fired workers for visiting sexually explicit and/or pornographic websites at work. They also worry about the loss of productivity caused by Internet surfing during work hours, and have fired employees for using the Internet for non-work related activities such as online shopping or sports sites.

As it is possible -- and even probable in many workplaces -- that your online activity is being monitored, be sure you know what your employer's monitoring policy is before engaging in activity during work time that is not work-related. You should not visit any websites that you would not want your employer to see or that your co-workers might find offensive. While most employers do not mind if your personal internet use is occasional and doesn't interfere with your work, some employers do mind, and expect you to confine your personal Internet usage to non-work hours.

11. Can my employer legally fire me for the content that I post on my personal website, blog, social networking, or social media website?

Yes. An employer can generally fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don't access from your office, employers can fire you if you if they feel the content on your personal site or blog is offensive to them or potential clients, or reflects badly on the company.

For more information about how to blog without risking termination, see our site's page on off-duty conduct

A employer might be able to legally fire you if your content on social networking and social media websites. The National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers' social networking and social media usage can be protected if it is "concerted activity" for the purpose of collective bargaining, mutual aid or protection. Thus, protesting about working conditions might be protected while complaining about a boss might not be. For more information on this rapidly growing area of the law, contact a lawyer.

12. Don't I have a First Amendment Right to say what I want on my social media accounts?

Generally, you do not have that right in the workplace. Only government employees have free speech protections and those are very limited. As a private employee, you can be fired for your speech in the workplace or outside of it.

13. Can my employer force me to promote their products or services on my personal social media accounts?

Possibly, but your employer runs into the risk of violating certain Federal Trade Commission (FTC) rules and regulations on advertising. Comments made to Facebook or Twitter by an employee could be viewed as advertisements or endorsements subject to FTC regulation. Additionally, the comments might be considered as unfair and deceptive acts in commerce.

14. Can my employer monitor my Instant Messaging?

Yes. Employers also have the technology to read and monitor your instant-message conversations on such services as AOL Instant Messenger (R), Windows Live Messenger (TM) etc. Signs show that more and more employers are using this technology.

15. What if I deleted a document or e-mail from my computer, is it safe from being monitored?

No. Even information that you have deleted from your computer is often available for your employers to monitor. Even though they appear erased, documents and e-mails are often permanently backed up on the office's main computer system

Even worse, deleting personal documents from your work computer may violate the law, depending on the manner and context in which the files were deleted. One recent case held that an employee who used a program designed to clean off the hard drive and permanently erase documents (a "secure delete" program) before returning a computer to his employer violated federal hacking laws designed to prevent damage to networked computers. Another held that a worker erasing documents from a company-owned computer after filing a lawsuit against his employer was in essence tampering with important evidence in the case.

Before permanently deleting any documents on your work computer, check with a lawyer first, especially if you have been terminated and/or contemplate filing a lawsuit against your employer.

16. I feel that my employer's computer usage policy has violated my privacy rights or might be discriminatory. What can I do?

While employers have considerable latitude in monitoring computer and Internet usage, if you feel that your privacy rights have been violated by your employer or believe the enforcement of your employer's policy is discriminatory, contact your state department of labor, or a private attorney.

17. If a lawsuit has been filed, what should I do with my social media?

In this digital age, lawyers will investigate or gather evidence anywhere including your social media. As a result, you should be cognizant of your social media use. Every tweet, post, e-mail, picture, and video can be you against you. Be sure to limit your privacy settings and do not accept friend requests from people you do not know. Check your social media for anything that can hurt you in a case. Limit your electronic communications to people you know and can verify.


NOTE: Yahoo! (R), MSN Hotmail (C), or Gmail (TM), AOL Instant Messenger (R), Windows Live Messenger (TM) and other trademarks and service marks are the property of the respective trademark and service mark holders. None of the trademark and service mark holders listed above are affiliated with Workplace Fairness or this website. No endorsement of this information, service or product by any company or person is made or implied.

This page was updated on March 15, 2013

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