By Karla E. Sanchez and Craig B. Simonsen

Seyfarth Synopsis: Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker’s email that complained about their terms and conditions of employment.

Recently, a National Labor Relations Board Administrative Law Judge ruled that a restaurant unlawfully reprimanded and discharged several employees in violation of Section 8(a)(1) of the National Labor Relations ActMexican Radio Corp., Case No. 02-CA-168989 (April 26, 2017).

A series of disagreements between a new manager and several of the restaurant’s employees led to several employees reaching out to management to complain about the new manager and to one employee quitting her employment. After resigning, the employee sent management and several of her former coworkers a lengthy email that management described as “hurtful and mean spirited.”  The email went through the reasons why she had worked at the restaurant, why she had loved working with her coworkers, and how the new manager had changed that.  She complained about how the new manager treated them, how several coworkers had complained to other managers, who according to her, did nothing, and she alleged that the new manager was engaging in unlawful conduct. Four employees replied to the email in agreement with the sender and thanked her for sending the email.

Management, who also received the coworkers’ replies, viewed the replies as “deeply insubordinate.” As a result, management decided to meet with the four coworkers to ask them on an individual basis why they had supported their former coworker and agreed with the contents of the email. All four were discharged for, among other things, allegedly engaging in insubordination and agreeing with an email that contained “false accusations of management” and had used “inappropriate language,” including profanity.

The ALJ found that the restaurant unlawfully discharged the four employees for replying to the former coworkers’ email. The ALJ found that the employees’ conduct had been protected, concerted activity. The ALJ noted that these four employees had complained to management about the new manager and about their working conditions and that their replies to the email was an extension of this protected, concerted activity. The email itself also addressed their working conditions, and thus, responding to it was also protected, concerted activity.

The restaurant tried to argue that the email was “opprobrious conduct,” and therefore, lost the protections of the Act. The ALJ disagreed, finding:

  • The four employees did not add anything negative to the original email;
  • The email was a part of an ongoing dialogue between the restaurant and the workers;
  • The email contained little profanity and did not constitute insubordination, but rather, was “a critique of the management style” of the restaurant;
  • The email was distributed internally and did not cause a loss of reputation or business for the restaurant; and
  • The email did not cause a disruption of the business.

The ALJ ordered the restaurant to reinstate the four employees to their former positions, to make them whole for their lost earnings, to pay them for their job-search and interim employment expenses, to remove any reprimands from their files, and to post at the restaurant a standard NLRB notice.

The takeaway for employers:  Employers must be careful when confronted by employees’ criticisms, complaints, and allegations, whether in person, by email, or by posting on social media platforms.  While some “complaints” might not be protected by law and/or might constitute insubordination, an employer should discuss the particulars with an attorney before determining whether the conduct warrants discipline or termination.  Some “complaints,” even when profanity is used and even when they are hurtful to the reader, are protected under the NLRA or other laws, and adverse conduct taken against the employees will be found to be unlawful.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Social Media Team or the Workplace Policies and Handbooks Team.

Seyfarth Synopsis: The Second Circuit agrees with the Board that the use of profanity in a Facebook post was not “opprobrious enough” to lose the NLRA’s protections and justify the employer’s termination of the employee.

A server whose “conduct [sat] at the outer bounds of protected, union-related comments” when he posted that his manager is a “nasty mother f***er” and “f*** his mother and his entire f***ing family,” was not “opprobrious enough” to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in NLRB v. Pier Sixty, LLC, No. 15-1841 (2nd Cir. Apr. 21, 2017).

Pier Sixty operates a catering company in New York, NY. In early 2011, many of its service employees began seeking union representation.  Following a very contentious union organizing campaign, Pier Sixty employees voted to unionize on October 27, 2011.

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was publicly accessible and Perez knew that his post would be visible to his coworkers. Perez removed the post three days later. Management, however, had already become aware of the post, and after an investigation, the employer terminated Perez on November 9, 2011.

Perez filed an NLRB charge alleging retaliation for engaging in protected concerted activities. On April 18, 2013, the ALJ issued a decision finding that Pier Sixty had violated sections 8(a)(1) and 8(a)(3) of the NLRA by discharging Perez in retaliation for his protected activity. Pier Sixty filed exceptions, and a three-member panel of the NLRB affirmed the ALJ’s decision on March 31, 2015.  The NLRB filed an application for enforcement, and Pier Sixty filed a cross-petition for review.

The Second Circuit affirmed the NLRB’s determination based on the deference afforded to the ALJ’s factual findings. The Court explained that in light of the General Counsel’s guidance for evaluating employees’ use of social media to post public criticisms of their employers and workplaces, a nine-factor “totality of the circumstances” test in social media cases had emerged.  The Court acknowledged that while the test the ALJ applied may not have “adequately balance[d] the employer’s interests, Pier Sixty did not object to the ALJ’s use of the test in evaluating Perez’s statements before the Board.”   Accordingly, the Court did not address the validity of the applied test.

Rather, Pier Sixty argued that the Board’s decision that the comments were not so egregious as to exceed the Act’s protection was not supported by “substantial evidence” in the record. The 2nd Circuit disagreed and found:

  • Although the post contained vulgar attacks, the subject matter of the message included workplace concerns.
  • Pier Sixty consistently tolerated widespread profanity amongst its workers, including supervisors, and had never before terminated any employees for such behavior until two days before the union election.
  • The location of the comments was an online mode of communication among coworkers and was not in the immediate presence of coworkers.

Accordingly, the Court found that the Board did not err in ruling that the post, while “vulgar and inappropriate,” was not so egregious as to exceed the NLRA’s protection.

Takeaways for Employers:

  • The Board will not apply the Atlantic Steel test to cases involving social media, even if the posts are public in nature, in light of the fact that the place of discussion is the internet and not face-to-face in the workplace.
  • Companies should ensure policies and handbooks comply with the NLRB’s current guidance on social media and do not interfere with employees engaging in protected concerted activity when off duty. However, while policies prohibiting vulgar and offensive comments need to be sensitive about infringing on NLRA-protected rights, employers should not hesitate to enforce those policies in appropriate circumstances.
  • Employee discipline should not be selectively enforced to prohibit behaviors that relate to union-related activities; discipline should be applied uniformly to all employees.

By Karla Grossenbacher

Men typing in Whatsapp on IphoneSeyfarth Synopsis: Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.

Texting is becoming more common in the workplace. Most employees use company-owned or personal phones to communicate in the workplace to some degree, and with phones, comes texting.  Even if email is the sanctioned form of communication in the workplace, employees will text.  Some employers may not even be aware their employees are texting with each other or to what extent.  Other employers may be aware and actually permit texting in the workplace or simply tolerate it because they feel they cannot prevent it from happening.

Yet, if employers allow employees to text in the workplace, they will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails. Plaintiff-side lawyers in employment cases are beginning to demand that text messages be produced along with emails during discovery.  If the texts are made from company phones, the basis for such a request would seem to be well-founded assuming the substance of the texts is relevant to the claims and defenses in the case.  However, when the texts are sent or received on personal devices used by employees in the workplace, the issue becomes more complicated.  In such cases, employers typically argue that they are not required to produce texts from their employees’ personal devices because such devices are not within the employer’s custody or control.  But if employees are using personal devices at work pursuant to a Bring Your Own Device program, the argument that such devices are not under the employers’ custody or control is undercut.  Often BYOD policies allow for the employers to take custody of the employee’s personal device for various legitimate business purposes, which would include responding to discovery requests in litigation.

Thus, employers must grapple with how they will fulfill their legal obligations with respect to workplace texts by ensuring they have the same ability to access, view and preserve employees texts that they do with employee emails. And this need will only grow more pressing as time goes on.  Some commentators say that, given the strong preferences of Generation Y for texting, texting will replace email as the primary mode of communication in the workplace of the future.  Thus, prudent employers will start thinking about this issue is now.

The difficulty with texting in the workplace is that — from the employer’s perspective — texting is offline. In workplaces in which email is the primary method of communication, employee emails are usually sent, received and stored on an email server that is maintained by the employer.  With the right policies in place, employers have free reign to access, review and preserve employee emails stored on these servers.  There are many legitimate reasons for which employers need to access and view employee communications.  For example, the employer may be conducting a workplace investigation or responding to a subpoena or discovery requests in litigation.  Employers may also have an affirmative obligation to preserve employee communications when they are in litigation or in connection with a governmental inquiry or as required by law.

However, employers do not have ready access to employee texts and are not in a position to preserve them. Unlike emails, texts typically reside on the phones on which they are sent and received.  These phones may or may not belong to the employer, but in order to access and review workplace texts, the employer must first take possession of the phone on which the text resides.  Not only is this a cumbersome process if several employees’ texts must be retrieved, but it may not be possible if the owner/custodian of the phone is not in the office or works remotely.  Moreover, having to take physical custody of an employee’s phone rules out any kind of surreptitious review of texts, which could be important in an investigation of suspected wrongdoing.

Also, where texts reside only on the phones on which they are sent and received, it is much more difficult for the employer to ensure such texts are being preserved in those situations in which an employer has an affirmative duty to preserve such communications. Setting aside the fact that phones can be lost or damaged or suffer a malfunction that makes it impossible to retrieve the texts stored on them, in order for an employer to ensure texts are being preserved, the texts need to be backed up in some way.  If employees are texting on company-owned phones, it is conceivable that the employer could implement a system for automatically backing up the texts.  However, with the proliferation of Bring Your Own Device programs, employees are often using their own phones at work.  Where employees are using their own personal devices in the workplace, the employer would have to require employees to back up their texts to a company-owned computer or server.  Even with a protocol in place for backing up texts, an employer could never be sure all texts were being captured as it is possible for employees to delete texts from a phone before the backup occurs.

There will also certainly be privacy issues raised for employers when they access and view employee texts. Personal and work-related texts will inevitably be commingled, especially if the phone is a personal device.  The good news for employers on this front is that texts appear to garner less privacy protection under applicable law than emails in the workplace.  For example, under the federal Stored Communications Act, which prohibits unauthorized accessing of communications in electronic storage through a facility that provides an electronic communication service, courts have held that a cell phone is not “facility” and that texts are not in “electronic storage” for purposes of the statute, and therefore, the SCA’s prohibitions do not apply to accessing texts on a cell phone.

Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.  No one knows exactly what the workplace of the future will look like and how employees will communicate in it, but employers should look into that future now and start taking steps to prepare for it.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Social Media Team or the Workplace Policies and Handbooks Team.

By Howard Wexler, Esq. and Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

 

By Karla Grossenbacher

shutterstock_328329848-300x200Seyfarth Synopsis: This blog considers the blurring of the lines between personal and work-related communications which has created novel legal issues when it comes to determining whether an employer has the right to access and review all “work-related communications” made by its employees.

Over the last decade, communication via email and text has become a vital part of how many of us communicate in the workplace. In fact, most employees could not fathom the idea of performing their jobs without the use of email. For convenience, employees often use one device for both personal and work-related communications, whether that device is employee-owned or employer-provided. Some employees even combine their personal and work email accounts into one inbox (which sometimes results in work emails being accidentally sent from a personal account). This blurring of the lines between personal and work-related communications creates novel legal issues when it comes to determining whether an employer has the right to access and review all work-related communications made by its employees.

Employers have legitimate business reasons for monitoring employee communications. Take, for example, the scenario in which an employee leaves her employment, and the employer is concerned that she has taken proprietary information or solicited clients in violation of her duty of loyalty or a contractual agreement. Another common scenario that gives rise to the need for employers to review all of an employee’s work-related emails is when the employer is in litigation that requires production of employee communications.

Most employers are comfortable with the notion that, with a properly worded policy that provides notice to employees of the ability and intent to monitor email, an employer can access emails on an email server provided by the employer. However, what about cases in which the employer does not provide the email service? With employees using web-based emails, like Gmail and Hotmail, and texts to communicate in the workplace, the relevant communications may be elsewhere. In these situations, what are an employer’s rights to access and review such communications?

An employer’s ability to review electronic communications is governed by the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA). The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted so narrowly that this title of the ECPA rarely comes into play in cases involving an employer’s review of employee email or texts. The SCA makes it illegal to access without authorization a facility through which electronic communication service is provided and thereby obtain access to communications in electronic storage.

With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario confronted by courts is one in which a former employer accesses the web-based email of a former employee, looking for evidence of malfeasance. In these cases, the former employer is typically able to access the former employee’s web-based email account because the employee has saved her username and password on a device provided by the employer, which was returned at termination, or failed to delink an account from such a device. In these cases, courts have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal, and allegedly private, communications.

For example, a district court in New York considered an employee’s claim that his former employer’s review of emails in his Hotmail account after his termination violated the SCA because it was unauthorized. The defendant argued that its review of the emails did not violate the SCA because the employee had implicitly authorized its review of the emails on his Hotmail account because the employee had stored his username and password on the employer’s computer system or forgot to remove such an account from an employer-provided phone before returning it.

The court rejected this argument, holding that it was tantamount to arguing that, if the employee had left his house keys on the reception desk at the office, he would have been implicitly authorizing his employer to enter his home without his knowledge. The court also noted that the employer’s computer usage policy did not provide the necessary authorization because it only referred to communications sent over the employer’s systems.

Likewise, a district court in Ohio confronted with similar facts, refused to hold the plaintiff responsible for his own failure to safeguard his information. In this case, the employee had turned in a company-issued blackberry upon termination without first deleting the Gmail account he had added to the phone. The former employer reviewed the emails in the former employee’s Gmail account, and the former employee alleged that this violated the SCA. The former employer argued that the former employee had negligently or implicitly consented to their review of the emails in her Gmail account by returning the blackberry to the company without deleting the account. However, the court held that the employee’s “negligence” in leaving the Gmail account on her phone when she turned it in was not tantamount to her authorizing the defendant to review the emails on her Gmail account.

However, a federal district court in California reached a different result in a case involving text messages. In this case, a company had sued its former employee for misappropriating trade secrets when it discovered, upon his termination, a number of text messages on the former employee’s company-issued iPhone that documented his misappropriation. The former employee had forgotten to delink his Apple account from the company phone he returned, and thus, his text messages continued to go to the phone — and his former employer. The court granted the company’s motion to dismiss the former employee’s counter claim that the company’s review of his text messages violated the SCA. The court held that text messages stored on phones are not in “electronic storage” within the meaning of the SCA, citing a Fifth Circuit case that reached the same conclusion about text messages. Of course, a violation of the SCA is not the only issue in these cases.

For example, in this case, the employee also alleged that his employer had invaded his privacy. However, the court held that the employee had no reasonable expectation of privacy in a company-owned phone that was no longer in his possession. In contrast to the two cases above, the court found that the employee’s failure to undertake precautions to maintain the privacy of his text messages showed he had no right to exclude others from accessing them.

The main lesson from these cases is that, if an employer wants to have the ability to review all employee communications that take place in the workplace, the employer needs to have, at a minimum, a policy that specifically provides for the right to monitor and review, for legitimate business reasons, any work-related communications made by the employee on a device provided by the company or a personal device used for work purposes. (Although the SCA does not require any showing about the employer’s motives in accessing the emails, a traditional invasion of privacy analysis would take this into account.) As a practical matter, the employer may not have the ability to access such accounts, but where access is available, this policy language is critical.

By Scott Rabe and Samuel Sverdlov

Seyfarth Synopsis: With seemingly every employee having access to a smart-phone or other recording device, employers without strong social media policies may be placing themselves at greater risk of creating workplace incidents that could be avoided. 

Just a few weeks ago, a video leaked of Los Angeles Lakers rookie, D’Angelo Russell, recording teammate, Nick Young, describing adulterous sexual encounters with a 19-year-old during his engagement to pop star, Iggy Azalea.  The incident has since been described as a prank that backfired.  But this “prank,” and the ensuing media attention it drew, has caused the Los Angeles Lakers to endure a media frenzy, a fractured locker room, and being booed by their hometown fans.

The Lakers incident is just one of the more recent, and public, examples of the risks employers face when employees introduce audio and video recording devices into the workplace. Viral videos such as this example may tarnish a company’s reputation.  A leaked audio recording may disclose important company trade secrets or confidential information.  Or a video recording may misleadingly appear to reveal unlawful practices at a company that could lead to litigation or other unwanted attention.

Where employers may once have understood the work place to be a semi-private space, that has changed. As a result, information and behavior that could be counted on to remain within the confines of the workplace now has the potential to become very public very quickly, with some pretty hefty consequences.

So what can employers do?

One of the best things an employer can do to hedge against these risks is to create a comprehensive social media policy that explicitly defines employee responsibilities with regard to social media. The social media policy should:

  • be geared towards the company’s business and its workforce;
  • underscore the importance of acting professionally when utilizing social media in connection with work as well as the importance of, where possible, maintaining a separation between personal and professional use of social media;
  • strictly prohibit the sharing of non-public confidential or proprietary information, or trade secrets, on social media;
  • be distributed to new hires at orientation and be regularly provided as a reminder to existing employees;
  • make clear that employees can be disciplined for violating the employer guidelines.

An employer may also want to consider putting in place a policy that regulates the use of audio or videotaping in the workplace more generally.   Although the National Labor Relations Board (“NLRB”) has said that wholesale bans on video recording in the workplace are unlawful since they could deter employees from exercising rights guaranteed to them under the NLRA, an employer may want to put in place a policy that prohibits surreptitious recording in the workplace or one that prohibits recording of other employees in the workplace without permission. Additionally, employers should be mindful that many states prohibit any kind of video or audio recording where all participants do not consent to being recorded. Given the scrutiny social media policies receive, however, employers are encouraged to consult with counsel before implementing any policy governing the use of audiotaping or videotaping in the workplace.

Employers should also consider making an investment in the education of managers and supervisors regarding best practices for upholding and enforcing the company’s social media and video recording policies. Given the ubiquity of social media today and its importance to employees’ personal and professional lives, there is significant value to employers in having a workforce that is educated on how to use social media effectively while avoiding potential costly pitfalls.

Warning to Employers: Employee audio and video recordings may be protected

The NLRB has taken an aggressive stance in the last few years in connection with its regulation of employer-imposed limitations on social media use. (To read more about the NLRB’s take on social media use, please see our blogs: here and here.)  In particular, the NLRB has taken increasing action against employers who have sought to prohibit employees from engaging in public discourse regarding the terms and conditions of their employment, especially when such discourse occurs on social media.   As a result, employers need to be careful that their social media and related policies do not place undue limitation on the forum or content where employees can engage in discourse regarding their employment.  For example, an employee’s video post to YouTube where she complains about her wages likely would be considered protected concerted action, and the employer could face liability for interfering.

Relatedly, the Equal Employment Opportunity Commission has also made clear that it views the prohibition by an employer of an employee from recording evidence of discrimination by video or audio means may be “retaliation.” This is true even if the employer maintains a workplace policy forbidding such recording.  Thus, employers should be extra careful before disciplining or regulating the conduct of employees who have already raised claims or complaints against the company.

For more information, please contact the authors, your local Seyfarth attorney or a member of Seyfarth’s Social Media Practice Group [http://www.seyfarth.com/SocialMedia].

By Hillary J. Massey

iStock_000048141232_LargeEmployees’ social media activities often play a key role in workplace investigations.

For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter regarding race, religion, or disability. Employers handling investigations into such conduct should be aware that state laws may restrict employers’ requests for information about an employee’s social media activity.

Fifteen states have passed, and many other states have considered, laws addressing whether and how employers may access employees’ social media accounts. The laws, in varying degrees, prohibit employers from requiring employees and applicants to provide access to their social media accounts through username/password disclosures, by requiring them to open their page in a manager’s presence, or by requiring them to “friend” a manager. While some states explicitly permit access during the course of an investigation into employment-related misconduct, others do not address the issue. Courts have had few opportunities to interpret the laws.

A recent case in Mississippi demonstrates how social media activity may become part of an investigation. Although the case involves a public school, and thus constitutional rights that are not applicable to private employment, the facts are similar to common workplace issues. The case was brought against a school and teachers by the parents of a high school student who was suspended from the cheerleading team as a result of her social media posts. A teacher who had received reports from students that the plaintiff sent threatening Facebook messages to another student required all of the members of the cheerleading squad to give her their Facebook usernames and passwords. She inspected their accounts, determined that the plaintiff’s messages were threatening, and suspended the plaintiff from the team for two weeks.

The lawsuit alleged that the Facebook search violated the cheerleader’s constitutional rights to privacy and freedom of speech. After the lower court refused to dismiss the lawsuit on summary judgment, the appellate court reversed, concluding that the teacher and school were entitled to “qualified immunity” (and thus, not liable) for the Facebook search because the law concerning students’ rights to privacy was not clearly established at the time.

While there is no “qualified immunity” for private employers, employers may find themselves investigating similar allegations. And, like the teacher, employers may be inclined to demand account information to further their investigations. While this is permissible in some states, the law remains unclear in the majority of states. Thus, employers should consider training managers and human resources representatives who handle such investigations to be sure they understand the limits of their authority.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference” as a starting point for employers faced with workplace investigations and other social media privacy issues. Contact the author, your Seyfarth attorney, or any member of the Social Media group with any questions.

By Robert B. Milligan and Daniel P. Hart

BlogThere is no denying that social media has transformed the way that companies conduct business.  In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference,” as a starting point to formulating guidance when these issues arise.

 

The Desktop Reference:

  • Describes the content and purpose of the various states’ new social media privacy laws.
  • Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
  • Provides an easy-to-use chart summarizing existing social media privacy laws by state.
  • Offers our thoughts on the implications of this legislation in other areas, including technological advances in the workplace, trade secret misappropriation, bring your own device (BYOD) issues and concerns, social media discovery, and federal law implications.
  • Concludes with some best practices to assist companies in navigating this challenging area.

We hope that you find its content useful.

How to get your Desktop Reference:

This publication may be requested from your Seyfarth contact in hard copy or is available as an eBook, which is compatible with PCs, Macs and most major mobile devices*.   The eBook format is fully searchable and offers the ability to bookmark useful sections for easy future reference and make notes within the eBook.

By Adam Vergne and Chuck Walters

Following a national trend, Montana and Virginia have become the nineteenth and twentieth states to enact laws restricting employer access to the social media accounts of applicants and employees.[1]

Virginia’s law, which takes effect on July 1, 2015, prohibits requesting (or requiring) the disclosure of usernames and/or passwords to an individual’s social media account.  In addition, the law prohibits any requirement to change privacy settings or add a manager to the “friend” or contact list associated with a particular social media account.  In addition to prohibiting the disclosure of usernames and passwords, under Montana’s new law, which took effect April 23, 2015, an employer is prohibited from requiring the disclosure of any information associated with a social media account or requesting an employee or applicant access a social media account in the presence of the employer.  As is common with such legislation, both statutes contain an anti-retaliation provision that prohibits an employer from taking any adverse actions against individual that exercise his or her rights under the law.

Notably, these statutes apply only to personal social media accounts meaning accounts opened on behalf or at the request of the employer are not protected. Employers are also still free to view information contained in personal social media accounts that is publically available.  Virginia’s law also includes an exception that permits employers to request login information if the employer has a “reasonable belief” the account is “relevant” to a “formal investigation or related proceeding” concerning the violation of a federal, state, or local law.

As the legal landscape associated with social media accounts continues to evolve, employers should review their policies and procedures to ensure compliance with all relevant statutory provisions.

For more information on social media in the workplace, please contact the authors, a member of the firm’s Social Media Team or your Seyfarth attorney.

[1]     In 2012, Maryland became the first state to enact social media privacy legislation.  Since that time, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin have enacted similar legislation.