Employees have limited rights in keeping their social media and private emails secret from their current or potential employers under New Hampshire statute RSA 275:73 through 75, which provides that employers cannot require job candidates or existing employees to allow them access to their social media or private e-mails, including requiring the employee to provide a password or “friending” on Facebook. This statute became effective September 30, 2014, so it has been in effect for just under one year. The New Hampshire Department of Labor may issue penalties for employers that violate these statutes. However, what this statute does not prohibit is employer monitoring its own email system upon which employees may use for their own private e-mails.
Employers, in fact, have an obligation under both state and federal law to prohibit discrimination in the workplace and part of that may involve searching the company e-mail system or perhaps viewing a particular private e-mail sent from one worker to a co-worker that may be evidence of racial discrimination, sexual harassment, retaliation or otherwise illegal acts. It is generally prudent for the company to have a computer use policy, not only because it tells the employees not to expect privacy as to the workplace email system or computers, the policy should also explain clearly what is acceptable use of the company e-mail system and computer system, including smart phones and tablets provided by the company to employees.
For employees that have public settings on their Facebook or other social media, employers are free to review those social media accounts to the extent available to the public. Therefore the photograph on your Facebook should be considered as part of your resume. Employers can and do look at Facebook and other social media information to determine whether a particular job candidate is a right fit for the position.
Lastly as to employees using the company e-mail system to complain to fellow co-workers about working conditions, supervisors, or other work related issues, employers may possibly not be able to take action against those complaining employees because that communication may be a protected concerted activity under the National Labor Relations Act, regardless of whether the employer is a union or non-union shop. Before making a decision to take action against an employee for such communications, it would be prudent to first get legal advice from the company employment attorney.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at firstname.lastname@example.org.