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Here’s what your boss can’t ask about your Facebook account

More than ever, potential employees are being asked to share their Facebook, Twitter and Instagram accounts with employers — but do they have to agree?

Once upon a time, an invisible divider existed between our work and social lives. The most serious of accountants could have fronted a heavy metal band on the weekends, and her coworkers would have either never been privy to this information or would have found it an amusing, quirky little fact about her that was discussed once and then forgotten.

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Thanks to social media and the way we use it to organize all aspects of our lives — from keeping up with friends and promoting hobbies, to networking with clients and fellow employees — the line has become very blurry. Suddenly, your boss knows that your 2-year-old is having trouble using the potty; that you buy and trade insect taxidermy via Etsy and Instagram; and that your Monday morning meeting gave you a serious case of FOMO (which might tip him off to the fact that you’re also feverishly courting every company that pops up on your LinkedIn feed).

Adding to the confusion, some employers request that you provide links to your social media accounts when you apply for a job — especially if the position requires that you have access to a large number of followers for marketing or publicity purposes. Is a company allowed to do that? Can you actually be turned down for a job if you refuse?

What’s a private person who also wants to feed her family and buy the occasional pair of shoes supposed to do these days?

“Last I heard there is no federal law that prohibits this request,” says Tricia Lucas, CEO of Lucas Select, Inc., a staffing and social recruiting consulting company. “On the state level there are varying degrees of protection and it is an ongoing issue. The best advice is to check with the National Conference of State Legislature‘s website. I would suggest to employees to offer up their LinkedIn account since that is geared towards business, but inform their employer that their Facebook account is personal and off-limits.”

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But Kevin Adkins with Kenmore Law Group, an employment and personal injury law firm in Los Angeles, says employers can indeed ask for links to your social media profiles and it is perfectly legal for an employer to not hire someone or to fire someone for refusing to provide this information.

“There are only a few handfuls of factors that cannot be used as a basis for employment decisions, like age, race, gender, religion, national origin, sexual orientation (in some states) and disability,” Adkins says. “Other than that, employers can base their employment decisions on any reason. An employer can fire you because he doesn’t like what shoe brand you’re wearing, and that’s perfectly legal. As far as looking at your social media profiles, if the information is public, then your employer is free to see it. It works the same way as in real life. If you are out on the street, there is no reasonable expectation of privacy and anyone can look at you or photograph you.”

To be clear: A potential employer can’t refuse to hire or fire you if he/she gets ahold of your Facebook account, discovers your religious beliefs and decides you’re not praying to the right god.

But, yes, you can be fired based on something you said on Facebook, Adkins says. Your employer can even fire you because they saw on your Facebook that you like cats and your employer despises them. “However, an employer cannot invade your privacy by finding ways to defeat your privacy measures,” Adkins says. “In California and a few other states, it is illegal for an employer to ask for your social media account passwords. In the past, employers would ask for these passwords to look at someone’s private pages, and California courts have ruled that this is illegal. A password is too personal and private and employers cannot ask you for your password and they cannot require you to log onto your accounts from work computers.”

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If you use social media to decompress after a day of work and gripe about your job (side note: don’t do that), what you say may be protected — but there’s no guarantee that it will.

“The NLRB states that ‘using social media can be a form of protected concerted activity,” Lucas says. “You have the right to address work-related issues and share information about pay, benefits and working conditions with coworkers on Facebook, YouTube and other social media. But just individually griping about some aspect of work is not ‘concerted activity.’ What you say must have some relation to group action, or seek to initiate, induce or prepare for group action, or bring a group complaint to the attention of management.”

In other words: “My boss is Satan’s spawn” most certainly does not count. When in doubt: pick up the phone, call your BFF and complain to one person instead of hundreds of your closest friends, followers, coworkers and yeah, maybe even your boss.

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