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Social Media and Social Networking
Maryland Is First State To Ban Employers From Asking For Social Media Passwords
Written by admin
Thursday, 17 May 2012 18:29

On May 2, 2012, the Maryland Governor approved a measure that makes it illegal for Maryland employers from requiring or asking an employee or job applicant to disclose any user names, passwords, or any other means of accessing personal internet sites (such as Facebook) as a condition of employment.  In addition, this new law also prohibits Maryland employers from disciplining an employee or refusing to hire a job applicant who declines to disclose such information.  Maryland is now the first state to pass such a law.  This law is known as the “User Name and Password Privacy and Exclusions” law, and takes effect on October 1, 2012.  You can read a copy of the bill here.

Several other states – including New Jersey, California, Illinois, and Washington – are also considering similar legislation.

Congress is also getting in on the action:  the U.S. House of Representatives has introduced the Social Networking Online Protection Act (“SNOPA”) and the U.S. Senate has introduced the Password Protection Act of 2012, both of which prohibit employers from requiring employees or job applicants to disclose their social media user names and passwords.  In addition, some U.S. Senators have also asked the U.S. Department of Justice and the Equal Employment Opportunity Commission to investigate employers’ practices of asking job applicants for social media passwords during job interviews.

For further discussion on this topic, please see my prior blog post here.

 
Maryland About To Pass Law Prohibiting Employers From Asking For Facebook Passwords
Written by admin
Tuesday, 10 April 2012 21:03

In the midst of the recent media circus regarding employers (in both the public and private sector) asking for Facebook passwords from job applicants, the Maryland legislature recently passed a bill that would prohibit employers from requiring or seeking user names, passwords or any other means of accessing personal internet sites such as Facebook as a condition of employment.  As a bit of background, this bill arose because a Maryland corrections officer was asked by his employer for his personal Facebook password, as a condition of returning to work following a leave of absence.  That correction officer’s situation became the subject of countless news articles all over the internet and in print.  In fact, some may say that the situation was blown out of proportion – especially given the lack of evidence (empirical, anecdotal, or otherwise) that this was even a common practice amongst employers.

In any event, at this point, this bill must still be signed by the Maryland governor before it becomes law.  If signed, it would take effect on October 1, 2012.

Several other states, including California, Washington, Illinois and New Jersey are also considering similar measures.

Over the past few weeks, several people have asked me whether an employer can, or should, require job applicants or employees to disclose their usernames and passwords for sites such as Facebook, Twitter, etc.  Thus far, my response has been that aside from the fact that it is not entirely clear whether such a practice is even legal (because of the Stored Communications Act, the Computer Fraud and Abuse Act, and a case called Konop v. Hawaiian Airlines), I think it is a bad practice for a number of reasons.  Specifically, employers need to be careful about how they research a job applicant, or even an employee, because they will often find things they didn’t want to (and shouldn’t) know about.  In addition, such a practice is bad for employee morale, and may scare away job applicants who are otherwise qualified for a position.  Finally, any savvy employee or job applicant will likely just purge their social media accounts of any incriminating evidence if they know they will be required to disclose their passwords to an employer, so requiring the passwords will become an exercise in futility.  This, pitted against the fact that an employer may discover something about an employee or applicant they they otherwise don’t want to know (such as a disability, sexual preference, religious belief, etc.), weighs in favor of not asking applicants or employees for their social media passwords.

I will be speaking in more detail on this topic at a seminar entitled “Modern Technology and the Workplace” at the Hawaii Employers Council (“HEC”) on April 26, 2012.   I will be presenting the seminar along with Ben Schorr, from Roland Schorr & Tower.  You can view further information about the seminar and register for the event on HEC’s website here.

You can read a copy of the bill here, and track the progress of this measure on Maryland’s legislative website here.

 
NLRB Issues Report on Social Media Cases
Written by admin
Wednesday, 24 August 2011 14:19

The General Counsel for the National Labor Relations Board (“Board”) has issued a report on social media cases addressed by the Board in the past year.

The introduction to the report noted that recent developments in the Office of the General Counsel have presented “emerging issues” concerning the protected and/or concerted nature of employees’ social media activities, the coercive impact of social media activities, and the lawfulness of employers’ rules and policies on social media.  In the report itself, the General Counsel discussed several different cases and scenarios where employees were disciplined for posting statements through social media outlets – which were usually on Facebook or Twitter.

In each of these cases, the Board focused on whether the activity in question was “protected and concerted.”  Protected activity includes discussions that relate to an employee’s terms and conditions of employment.  Concerted activity needs to involve more than just one employee.  Thus, in many of the cases discussed in the report, the Board did not find that a disciplinary action taken against an employee violated the National Labor Relations Act (“Act”), because the employee had not engaged in “concerted” activity.  More specifically, those employees made statements on Facebook or Twitter, but such actions did not involve discussions with other employees. Therefore, such statements did not constitute “protected and concerted” activities.  Rather, they were simply considered to be “individual gripes.”  In other cases, however, the Board found that the employer violated the Act when it disciplined employees for engaging in “protected and concerted” activities.

Another series of cases dealt with employers who had “overbroad” social media policies.  Such polices were deemed to be unlawful, because “employees could reasonably construe them to prohibit protected conduct.”  In those cases, the employers were required to amend their social media policies.  Additionally, any disciplinary actions implemented under such overbroad policies were invalidated.

You can read a full copy of the report here.

 
NLRB Issues Yet Another Complaint, Press Release, For Facebook Firing
Written by admin
Tuesday, 24 May 2011 09:06

For the second time this month, the National Labor Relations Board (“NLRB”) has issued a complaint (and press release) against a company for terminating an employee who posted comments on Facebook that were critical of his employer.

In this newest case, the NLRB issued a complaint against Knauz BMW, alleging unlawful termination of an employee who posted photos and comments on Facebook that were critical of the dealership.  Specifically, the employee and his coworkers were unhappy that the dealership decided to serve just hot dogs and bottled water at a dealership event promoting a new BMW model.   The salesmen complained that the (poor) quality of food and drinks could affect their sales commissions.  The employee then posted pictures and commentary on his Facebook page criticizing the use of hot dogs and bottled water at the dealership event.  Other employees had access to the employee’s Facebook page.

The following week, the dealership’s management asked the employee to remove the photos and commentary, and the employee complied.  Shortly after the meeting, the employee was terminated.

Like the other Facebook Firing cases, this case alleged that the employee’s Facebook posting was protected concerted activity under Section 7 of the National Labor Relations Act, because it involved a discussion among employees about their terms and conditions of employment.  Also like the other Facebook Firing cases, this case is significant, because the NLRB continues to issue press releases in these types of cases.  Therefore, employers should be cautious when disciplining employees who engage in protected concerted activities over social networking sites such as Facebook.

You can view a copy of the press release here.

 
NLRB Pursues Another Facebook Firing Case
Written by admin
Thursday, 19 May 2011 10:06

The National Labor Relations Board (“NLRB”) has issued a press release stating that they are pursuing unfair labor practice charges against a non-profit company called Hispanics United of Buffalo (“HUB”) for firing five employees who were discussing the terms and conditions of their job on Facebook.

In this case, an employee of HUB posted a comment on her Facebook page regarding a co-worker’s allegation that employees did not do enough to help HUB’s clients.  Five of the employee’s co-workers then responded to the initial comment, by defending their job performance and criticizing their working conditions.  After learning of the employees’ responses, HUB discharged the five employees, and reasoned that their comments constituted harassment of the original employee mentioned in the initial comment.

The NLRB filed an unfair labor practice charge against HUB, and alleged that the Facebook discussion constituted protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).  As I noted in this prior blog post, under Section 7 of the NLRA, employees have the right to talk about the terms and conditions of their job with others, and cannot be disciplined for doing so.

This case is similar to another well-known “Facebook Firing” case involving a company called American Medical Response (“AMR”), where the employer discharged an employee for criticizing her supervisor and working conditions on her Facebook page.  That case received a lot of press, and was eventually settled.

The HUB case is also similar to the AMR case, because the NLRB decided to issue a press release about the case.  I should note that it is uncommon for the NLRB to issue a press release on unfair labor practice cases.   By issuing a press release in this case, the NLRB is again putting employers on notice that they should not be disciplining employees for engaging in protected activity through the use of social media.

You can read the NLRB’s press release here, and a copy of the formal complaint here.