New Rulings on Social Media Policies May Impact Your Company's Policy

Posted by Arianna Gleckel on March 12, 2013

socialmedia.jpgSeveral of my prior posts have discussed revising a company’s social media policy to create limits as to what employees may post online about the company and/or other employees.  In this newly emerging area of law, early cases supported employer policies that prevented employees from posting derogatory or defamatory statements about an employer on social media, such as Facebook, Twitter and personal blogs.

As more cases are heard on the issue of what protections are afforded to social media speech, there appears to be a shift in rulings on cases involving companies’ social media policies.

The National Labor Relations Board (NLRB) has issued several rulings recently that uphold an employee’s right to discuss “work conditions” freely, without any fear of retaliation or retribution by the employer.

The National Labor Relations Act (NLRA) was enacted in 1935 as a federal law to protect employees in the private sector’s right to unionize, engage in collective bargaining and organize to discuss workplace issues.  However, the NLRA is now being applied to social media activities of both union and nonunion employees. Many argue these activities were never contemplated by the drafters of the NLRA, and therefore, should not be applied to these types of online activities.

Based on the NLRB’s recent decisions, it seems to be making a distinction between activities that allow employees to voice their concerns about their employer or other employees, which it has upheld as protected speech, and activities that surmount to venting, name-calling or other non-productive collaboration, which has not been upheld as being protected.

For example, the NLRB held that an employee was unlawfully terminated after she posted a question to other employees on Facebook asking how they felt about another employee who threatened to complain to management that co-workers weren’t working hard enough.  The NLRB found that the posting and related comments from other employees were “concerted activity” that is protected by the NLRA. 

The NLRB has reviewed the social media policies of many large companies and suggested that many of them rewrite their current policies, including Costco, Target and General Motors.  Their recommendations focus on avoiding general and broad policies so as to protect employees’ right to communicate with co-workers about working conditions.

Based on these recent rulings, employers should try to use specific language in revising their social media policies to prohibit specific speech (such as defamation) without prohibiting protected criticisms of the employer’s treatment of employees or policies.

Who Owns Your Twitter Account?

Posted by Arianna Gleckel on February 12, 2013

Do you have a Twitter account for your business that your employees access? Do any of your employees tweet using a Twitter handle that includes your company’s name? If so, you need to update your social media policy in order to protect your company.

Thumbnail image for Twitter Logo

PhoneDog Media (“PhoneDog”), a South Carolina based company, had an employee, Noah Kravitz, who left the company in 2010 but continued to use his Twitter name “Phonedog_Noah.” The Twitter account was linked to Kravitz’s personal email account and had 17,000 followers.

PhoneDog sued Kravitz for the loss of Twitter followers. PhoneDog told the New York Times that “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C.” The company also stated that PhoneDog plans to fight to protect their customer lists, confidential information and brand.

The company is seeking $340,000 in damages, which it calculated by valuing each Twitter follower as being worth $2.50 per month for each month Kravitz used the Twitter name (which he has since changed). It alleges that the Twitter list is a customer list, which is the property of the company. Kravitz claims that PhoneDog asked him to continue to tweet for the company from time to time since he left PhoneDog amicably.

The lawsuit is currently pending before the United States District Court in the Northern District of California. Regardless of the outcome of this case, employers should clearly define in their employment policies what property belongs to the company so that there is no confusion about ownership when an employee’s employment is terminated.

If you are considering hiring a third party to tweet on behalf of your company, have your attorney review the terms of the contract before signing to ensure that the agreement clearly defines who owns the Twitter followers and the Twitter name.

Maryland is the first state to ban employers from asking applicants and employees for online passwords

Posted by Arianna Gleckel on May 03, 2012

As a follow up to my most recent post about the media coverage of the emerging trend of employers asking or requiring job applicants and/or current employees to provide their Facebook or other social media passwords, Maryland just passed legislation on Wednesday that bans employers from asking applicants and employees for their Social Media Apps on Iphone 2(00176961).JPGpersonal online passwords.

Maryland is the first state to enact legislation on this issue.  But other states are considering similar legislation, including California, Illinois, Michigan, Minnesota, Missouri, South Carolina and Washington. Even Congress is considering a federal law that would protect applicants' and employees' privacy in their personal online passwords.  Virginia and DC have not yet addressed the issue.

The Maryland Department of Public Safety and Correctional Services made the news about a year ago after a former corrections officer disclosed that he was asked for his Facebook password by the Department of Corrections during his recertification process with the Department.

Maryland's legislation goes into effect on October 1, 2012, and will allow employers to use information obtained from the employee's use of a "web-based account" to investigate employees who are suspected of violating securities or financial laws.  This would seem to include investigating an employee's social media profiles and accounts used for business purposes.

The Maryland law also allows employers to request access to usernames and passwords for "nonpersonal accounts or services that provide access to the employer's internal computer or information systems." 

A Warning for Employers Requiring Social Media Login Information

Posted by Arianna Gleckel on May 02, 2012

A new trend that has emerged in the employment arena is employers asking applicants to provide their Facebook username and password or other social media login information during the interview process.  Other employers are making compliance with this new policy a condition of employment.

Many Facebook users have increased the security sBusiness in the dictionary (00091106).JPGettings on their accounts so that very little, iif any, of their profile is visible to the public.  In response, some employers seek social media login information in order to log in to applicants’ Facebook accounts in order to look at the applicant’s profile and other information that cannot be viewed by the general public.

So as an employer, should you consider adding this practice to your interview process? Should employers ask existing employees for their social media passwords or login information to personal email accounts?

Employers should not ask applicants or employees for any login information for Facebook, other social media sites or personal email accounts.   Doing so may actually increase the employer’s exposure to a discrimination claim and may constitute a violation of state privacy laws. 

For example, if an employer requests login information of an applicant and then the applicant is denied employment, the applicant may claim that the employer denied him or her employment due to the applicant’s membership of a protected class, which the employer learned about from information it obtained on Facebook.

And the legal implications do not stop there. Such requests or requirements of employees and/or applicants may also violate federal laws, such as the Computer Fraud and Abuse Act and the Stored Communications Act, even if the login information was not required by the employer but was simply requested.  A request for this private information could be considered to be obtained under duress (the employee or applicant felt that they had no other option other than to cooperate or risk losing their job), which triggers federal statutes that prohibit the “unauthorized access” of a computer or communications.

But what if employees are using Facebook to connect with customers? Does that create an exception that allows employers to require the sharing of social media passwords?

Until employers have additional guidance on this privacy issue from the courts or the legislature, employers should not request passwords for social networking sites from employees or applicants, even if the employee is using these sites to connect with customers.

This issue has gotten attention on Capitol Hill and House Democrats are pushing for the Federal Communications Commission to have the ability to adopt a rule to prohibit employers from requiring job applicants or employees to disclose passwords to social networking sites.