To date, Texas does not prohibit an employer from requiring an applicant or employee’s social media user name and password as a condition of employment. But you should be very cautious about asking for such information. Too much knowledge actually can be a dangerous thing. For example:
· An employer might be found vicariously liable for harassment, discrimination or retaliation if the employer knew or should have known about its employee’s offensive conduct but took no corrective action. In these cases, simply having access to a supervisor’s social media profile – even when not used – might create a liability risk if that supervisor posts inappropriate comments about a subordinate’s sexual preferences or makes racist comments, even outside work.
· An employer could also be presumed to have knowledge of the information posted by an employee using social media, whether made accessible to the general public or not. Posts or comments by others on an employee’s Facebook page regarding the employee’s medical condition, sexual orientation, pregnancy, or age might provide some factual basis to support a discrimination claim.
· Posts, comments, or photographs reflecting an employee’s use of drugs or alcohol and other reckless or violent activities (even during non-working hours), could lead to a negligent hiring or negligent supervision claim if that employee later injures someone while on the job.
· An employee’s posts or comments complaining about workplace discrimination, accrued overtime, on-the-job injuries, or instant message/Twitter discussions with other employees about working conditions could also lead to claims that the employer has taken adverse action in violation of the Fair Labor Standards Act, National Labor Relations Act, Occupational Safety and Health Act or any other number of federal and state laws prohibiting retaliation for protected activity.
Lastly, an employer who engages in social media should be very cautious about the tone and content of any personal blogs, Facebook pages, Twitter posts and other content on social networking sites. Recent news articles have shown the damage to a company’s reputation caused by an embarrassing “joke” when taken out of context, and defamation claims involving social media “publications” are likely to increase.