SA law protects against employer Facebook prying
Law firm, Cliffe Dekker Hofmeyr says that local employees can take comfort in protection offered by South Africa’s labour legislation, should their employers ask them for their social media user names and profiles as is the case in the United States.
US resident, Kimberley Hester was recently suspended from her employment as a teacher’s aide in Michigan, for refusing to hand her Facebook username and password to her employer.
It follows reports of employers asking job applicants to log into their accounts and allow the interviewer to view the applicant’s wall posts and friends. This practice by the Maryland Department of Corrections led two US Senators to call for an investigation.
Reports also surfaced in the US about employers or colleagues who force employees or students to “friend” a compliance officer or coach on their social network sites. These “force-friends” are then tasked with regularly monitoring the posts, tweets and blogs of the candidate.
“Employers in South Africa may not unfairly discriminate against employees or applicants for employment on a number of grounds listed in Section 6 of the Employment Equity Act 55 of 1998 ( EEA),” said Johan Botes, director in the Employment practice at Cliffe Dekker Hofmeyr.
“These grounds include race, gender, pregnancy, sexual orientation, HIV status, political opinion, conscience, language, religion and similar grounds. Accessing the social network account of an employee or applicant for employment may result in the employer gaining insights into information of an employee concerning one of these listed grounds.”
In SA, model Jessica Leandra Dos Santos came under fire last week after she posted a racist message on social networking site Twitter. Consequently, Dos Santos’ corporate sponsors moved swiftly to terminate their contracts with her “due to the severity of the remarks”.
Botes says that South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA) has accepted in certain cases that employees may be dismissed when they post derogatory remarks about their employer, managers, colleagues or clients on Facebook, Twitter or other social networks or blogs, as these comments may harm the on-going employment relationship.
“However, demanding that an applicant for employment or an existing employee divulge personal, private usernames and passwords may be a bridge too far for a Commissioner considering the dismissal of an employee who refused to divulge such information,” he said.
Botes says that a South African job applicant’s strong political beliefs or sexual orientation may not have been known to the employer but for the employer accessing her Facebook page. Whatever the eventual reason for them not hiring the applicant, the tempting inference will almost certainly be that the reason for not selecting her was her sexual orientation or political views evidenced on Facebook.
“It is for this very reason that employers refrain from enquiring from job applicants whether, for example, they are HIV positive, as knowledge of this fact may be argued to have influenced the decision against employing the candidate – even where it did not. By the same token, employers now know not to ask a female candidate whether she intends starting a family soon, as they may not discriminate against her based on a prohibited reason like family responsibility. The lesson that employers have learnt is not to ask the questions if the answers can’t be used in selecting a candidate,” the legal expert said.
Cliffe Dekker Hofmeyr warns against employees demanding that job applicants disclose their social network usernames and passwords as it can inter alia lead to the inference that the employer used some discriminatory grounds in not selecting the applicant for employment.
“An applicant for employment (or existing employee) who refuses to hand over such information and is subsequently refused employment may also claim that she suffered discrimination on a ground that is analogous to the prohibited grounds listed in Section 6 of the EEA.”
“They may also seek to rely Labour Relations Act , which protects job applicants and employees from prejudice suffered following their claim refusal or failure to comply with an unlawful demand or instruction by the employer. Here they would claim that the instruction to divulge private information that does not have a bearing on the employment relationship is not a lawful instruction,” Botes said.
“Employers are advised to tread carefully where they seek confidential social network information from employees or job applicants,” Cliffe Dekker Hofmeyr said.
“Employees or job-seekers are advised to ensure that their social network profiles and pages are cleaned-up regularly. Selecting which pictures, posts or on-line friends to preserve can determine the impression left in the mind of the employer,” Botes concluded.
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