Privacy & Social Media

By Esther Slater McDonald, Paul Yovanic Jr. and Thomas E. Ahlering

Seyfarth Synopsis: In light of the uncertainties surrounding lawsuits alleging violations of the Illinois Information Biometric Privacy Act (BIPA), the Northern District of California has taken a firm position on a plaintiff’s Article III standing. U.S. District Judge James Donato delivered opinions in In re Facebook Biometric Info. Privacy Litig., Case No. 15-CV-03747; 2018 U.S. Dist. LEXIS 30727 (N.D. Cal. Feb. 26, 2018) and Gullen v. Facebook Inc., Case No. 16-CV-00937; 2018 U.S. Dist. LEXIS 34792 (N.D. Cal. March 2, 2018), denying Facebook’s motions to dismiss for lack of subject matter jurisdiction in both cases. The court held that plaintiffs’ Article III standing was satisfied through mere collection of biometric information.

The decisions provide plaintiffs the ability to get their feet in the door and threaten businesses and employers alike. The court dismissed Facebook’s argument that Article III standing requires “real-world harms,” stating that the argument exceeds the law. Instead, the court held that a plaintiff has standing when they are deprived of procedures that protect statutorily protected interests, similar to the procedures outlined in the BIPA.

The In Re Facebook Decision

In In Re Facebook, plaintiffs allege that Facebook violated the BIPA when it unlawfully collected and stored biometric data on Facebook users without prior notice or consent. 2018 U.S. Dist. LEXIS 30727, *4. Plaintiffs’ claims arise out of Facebook’s “Tag Suggestions,” which identifies other Facebook users through scanning uploaded photographs. Id. Plaintiffs allege that Facebook creates and stores digital representations of people’s faces based on the geometric relationship of facial features unique to each individual. Id. Facebook moved to dismiss the class action, asserting that plaintiffs lacked standing under Article III because the collection of biometric information without notice or consent did not result in “real-world harms,” “such as adverse employment or even just anxiety.” Id. at *13.

The court denied Facebook’s motion to dismiss, holding that Facebook’s standing argument exceeds the law. Id. In support of its decision, the court looked to the plain language of the BIPA stating, “BIPA expresses the judgments of the Illinois legislature about the rights of Illinois citizens with respect to the collection of personal biometric data by corporations and businesses.” Id. at *10. There, the court pointed to the subsections of the BIPA in so much that it “vested in Illinois residents the right to control their biometric information by requiring notice before collection and giving residents the power to say no by withholding consent.” Id. at *11. Since the plaintiffs in this case were never offered the opportunity to withhold consent, the court rejected Facebook’s argument and found standing satisfied under the allegations. Id. at *12.

The Gullen Decision

The Gullen case was consolidated with In Re Facebook. The primary difference between the two actions is that the Gullen plaintiff is not a Facebook user, and he challenges Facebook’s practices as to non-users. See 2018 U.S. Dist. LEXIS 34792, *2. Similar to the In Re Facebook plaintiffs, the Gullen plaintiff alleges that Facebook stores non-user biometric data when it scans photographs to recommend additional user “tags.” Id. In denying Facebook’s motion to dismiss for lack of standing, the court relied on the reasoning in In Re Facebook, holding that standing is satisfied when there is an unconsented storage of biometric data. Id.

Analysis And Implications

Judge Donato’s disregard for real-world harm creates uncertainty on an otherwise untested statute. His decisions are inapposite to recent Illinois Appellate Court decision Rosenbach v. Six Flags Entertainment Corp., 2017 IL App (2d) 170317, which found that actual, real-world harm must be established to be considered an “aggrieved person” under the BIPA. Id. at ¶ 23. Where, Rosenbach closed the door to claims that did not involve some sort of actual, real-world harm, Judge Donato seems to have reopened that door (for purposes of Article III standing), leaving businesses and employers vulnerable to BIPA claims for collection of biometric data, regardless of whether the plaintiff is aggrieved. It is possible, though, that other courts may blunt the practical impact of Judge Donato’s opinions by holding that they do not address whether real-world harm is required to state a claim. While a mere technical violation of the BIPA may open the courthouse doors (at least in federal court), BIPA’s “aggrieved person” language may require a plaintiff to show a real-world harm to remain in court and state a claim under the statute.


By: Elizabeth McKeeGabriel Mozes and Jason E. Burritt

Seyfarth Synopsis: The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and requires disclosure of the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visits; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past 5 years.

To view the full alert, please click on the link below:



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 Dawn Solowey and Ariel Cudkowicz

On June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court ruled for the Equal Employment Opportunity Commission in the religious-discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc. We blogged about that opinion on the day of the decision.

But many employers are wondering: now what? Read on for some practical, common-sense “do’s” and “don’ts” for hiring in the wake of the Supreme Court’s ruling.

Ten-Second Recap of the Supreme Court’s Decision

Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship. The question before the Abercrombie Court was “whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation.”

The Court rejected Abercrombie’s argument that an applicant cannot show a violation of Title VII without first showing that the employer had “actual knowledge” of the applicant’s need for accommodation. Instead, the Court held that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”

The bottom line? “[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Do’s and Don’ts

DO Update Training

Update training programs to ensure that hiring managers and interviewers learn best hiring practices. What questions are OK to ask, or not ask? How do you handle a religious accommodation request? When do you call Human Resources or Legal? Remind trainees that there can be no retaliation against an applicant for having requested an accommodation.

DON’T Ask Directly About Religion

Many of the old rules still apply. Employers should NOT ask applicants directly about religion or religious practices and should NOT assume anything about an applicant’s religion based on stereotypes.

DON’T Stick Your Head in the Sand

On the other hand, When the employer is aware of, or even suspects, a potential conflict between an applicant’s religious practice and a work rule, from any source, the employer should explain the work rule and ask if the rule would pose any problem for the applicant.

Let’s say an applicant arrives to the interview wearing religious clothing that violates the employer’s uniform policy. The employer should communicate the rule and ask if that rule would pose any issues for the applicant. This invites the applicant to disclose any conflict, but avoids a direct inquiry into the applicant’s religion or religious practice.

Facial hair, long hair, head coverings, religious clothing or jewelry, tattoos, and body art are just some personal attire or grooming practices that might be religious in nature, and apparent in an interview, and may also conflict with certain employers’ policies on uniforms, grooming, professional appearance, or safety policies.

The employer may consider alerting applicants more broadly to policies that could pose conflicts for applicants of various religious groups. For example, an employer whose policy is to require weekend work might consider letting all applicants know that up front. The question can be simple: “This position requires work on Saturday and Sunday, would that pose any problem for you?” This starts the dialogue but avoids stereotyping or prying. It also means the employer doesn’t have to guess from dress or other clues whether an applicant is an Orthodox Jew, an evangelical Christian, or a Seventh-Day Adventist who might observe the Sabbath, and what that means in practice.

DO Engage in the Interactive Process (When Warranted)

Once the employer explains the work rule and asks if it would pose a conflict, the applicant’s response determines what happens next.

If the applicant says that there is no conflict, leave it at that. Let’s say the employer explains to an applicant with dreadlocks that the grooming policy forbids long hair, and the applicant says that rule poses no problem for him. Don’t ask for more detail, or question whether the applicant can really abide by the rule.

If the applicant says that there is a conflict, ask why. The answer may or may not relate to religion. One applicant may say she can’t work weekends because she wants to spend time with her kids, and another may say that any work from Friday sundown to Saturday sundown conflicts with her religious belief against work on the Jewish Shabbat.

If the applicant cites a religious reason, the employer must engage in a dialogue — what the law calls “the interactive process” — to explore whether a reasonable accommodation is possible, or whether it will pose an undue hardship.

DO Loop in Human Resources and Legal

If the interactive process is warranted, involve Human Resources. Why? Because HR often has greater expertise in the area of religious accommodation and a deeper knowledge of the company’s religious-accommodation policy. HR likely has a broader perspective about how the company has handled similar accommodation requests, which helps ensure consistency. Finally, HR can help document the interactive process so that there is an accurate record of the request and any accommodations offered or refused.

The employer should also consider consulting legal counsel who specializes in this area for guidance. A legal expert can help navigate the thorny, fact-specific questions of what is a reasonable accommodation, and what is an undue hardship. Counsel can also help the employer to ensure compliance with state or local religious discrimination laws, which can vary from the federal law at issue in Abercrombie.

Both HR and Legal can help brainstorm creative solutions to a conflict between religious practice and a workplace rule. An employee observing the Sabbath might be able to swap shifts with a co-worker or be scheduled around services. A worker seeking a religious exemption to a safety policy forbidding long hair could be allowed to tie his hair up.

DO Set the Right Tone

Be careful to set the right tone. Always be respectful of any religious practice, no matter how unusual. Don’t make assumptions about whether a practice is a “real” requirement of a given religion; under the law, a “sincere religious belief” doesn’t necessarily need to be part of an organized religion, or practiced by many people, or long-held by the employee. The interviewer should avoid making comparison to his or her own, or other employees’, religious identity or practice, or citing advice from a priest or rabbi. Like so much in the workplace, respect and communication can go a long way.

If you have questions regarding this blog or this topic, generally, please contact the authors, a member of Seyfarth’s Workplace Counseling Group, or your Seyfarth attorney.


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.

By Johanna T. Wise and Andrew J. Masak

Every day new stories about the uses (and misuses) of drones surface in the media.

They have been used to: photograph the 2015 Winter X Games, assist in firefighting operations, monitor agricultural drought, monitor pipelines in remote areas of the world, and take pictures for realtors.  One drone even famously crashed on the White House lawn.  Clearly drones are opening up the world to a whole new set of technological possibilities – perhaps the most widely-published future use being Amazon’s stated position that within four to five years, it could have a fleet of octocopters delivering orders at customers’ doorsteps.  The sky’s the limit to what drones could conceivably be used for, and that includes the workplace.

The president of the Association for Unmanned Vehicle Systems – Michael Toscano estimates that drones could become an $82 billion, 100,000-job industry by 2025.  Indeed, one of the leading commercial drone manufacturers in the world is currently seeking investors for a $10 billion valuation according to media sources.

The Legal Landscape and Regulatory Framework

As with so many areas where law and technology find themselves uncomfortably intersecting, the legal landscape has yet to catch up with a robust legal framework.  A patchwork of state law has emerged, and at least 16 states have approved some form of legislation. Most of these laws focus on law enforcement and prevent the police from using a drone to collect information about an individual without first obtaining a warrant. A few states, however, have adopted privacy-related restrictions which prohibit using a drone to intentionally conduct surveillance on a person or private property in certain situations.

Outside the individual states, the Federal Aviation Administration (FAA) has attempted to flex its regulatory muscle by applying old rules and proposing new ones to better fit the rise of drones.  Currently, anyone in the U.S. who wants to fly an aircraft — either manned or unmanned — must obtain FAA authorization, and failure to do so may result in fines of ten thousand or more dollars.   With this in mind, several companies have already successfully navigated the existing FAA framework (oil companies, real estate companies, and even CNN have applied for authorization).  Thus, while the dust continues to settle, it’s not unlikely that businesses may turn increasingly to drones in the workplace.

Surveillance in the Workplace

The rise of drones has opened the door to countless possibilities.  Society as a whole, and the business community in particular, have barely scratched the surface in unleashing their capabilities.  Some ways employers specifically could harness the power of drones include:

General Monitoring for Discipline or Safety – Perhaps the greatest potential for drones in the workplace involves using drones instead of traditional video cameras as surveillance devices.  Drones can access places where stationary cameras can’t.  What’s more, they can follow an employee and get a more complete picture of an incident. In this way, drone surveillance can aid an employer in disciplining an employee and reviewing accidents and safety issues.

Monitoring Employees Claiming Leave Status –Video surveillance of employees outside the workplace claiming workers’ compensation or disability benefits already occurs.  Indeed “watching” an employee claiming a benefit under false pretenses is a powerful tool employers and disability insurers alike use.  Drones may help facilitate greater monitoring of employees who are claiming leave status under false pretenses.

Non-Compete, Non-Solicit, and Trade Secrets Monitoring – Will employers be able to use drones in unique ways monitoring their trade secrets?  Is it possible for employers to program drones to help monitor whether employees are soliciting customers or other employees? Or are these uses still a bridge too far?

Several concerns and potential pitfalls remain.  Although current Federal law does not generally require an employer to provide notice to an employee and obtain consent to video surveillance in public areas in the workplace, state and local laws may impose additional requirements or limitations. Moreover, it remains a best practice to provide advance notice and warning to employees of video surveillance, drone or otherwise. Thus, as a threshold matter, employers considering using drones in the future to provide surveillance of their workers should strongly consider obtaining consent from employees before implementing any drone program.  Employers facing a unionized workforce should be especially cognizant of consent issues as drone usage would likely constitute a material change to the terms and conditions of employment that is subject to collective bargaining.

The use of drones to monitor employees and any resulting discipline could open employers up to potential discrimination claims. Just as the use of drivecams in vehicles or other tracking technologies must be applied in a non-discriminatory manner, so too should employers consider their use and application of drone surveillance.  Any selection decision or resulting disparate impact based on a protected category could arguably be found to violate the law. In this regard, employers considering using drones would be well advised to maintain policies and procedures describing how they use drones and a neutral process for selecting who will be monitored and under what circumstances.

For more information on the use of drones in the workplace, please contact the authors or your Seyfarth attorney.

By: Erin Dougherty Foley

On Monday, Apple unveiled its new MacBook (which is as pretty as it is light and nimble), number of new health related apps called “ResearchKit” (that claim to be able to help diagnose and monitor the progress of diseases like diabetes and Parkinson’s) and the much anticipated Apple Watch.  The watch appears to work like an iPhone, letting you send and receive text messages, check music, use Uber, unlock your hotel room and pay for stuff – as well as make and receive phone calls.  (In fact, you have to have an iPhone to make the watch work.)  The watch also has a built in health conscious app that nudges you when you’ve been sitting for too long, tracks your steps and monitors other health factors.

While it appeared that they were still working out some of the kinks and they haven’t solved the problem of “how does a 45+ year old set of eyes see something quite that small without embarrassing your children by holding the phone that close to your face,” most of the live chats  and bloggers that we monitored during the launch seemed pretty impressed with what Apple was hawking.

Of course, then the lawyers have to weigh in.

The release of the Apple Watch and ResearchKit reinforce the need for employers to consider the impact wearable technology has on how their companies keep time records, track employee working time versus “off the clock” activities, and enforces existing EEO (anti-discrimination, harassment or retaliation) policies as well as how all of these technological advancements will interact with existing federal and state labor, employment and wage & hour laws.

There are so many exciting ways this emerging technology can be used in the work place: from new training opportunities, to innovative forms of employee collaboration; to tracking and monitoring employee performance and productivity.  But this technology also brings new issues related to maintaining confidential business information, employee personal health information, and data security issues; workplace safety and employee/employer expectations regarding privacy in the workplace.  Even forward thinking employers willing to embrace this new technology with open arms (or available wrist space) should take the time to review (and most likely update) their existing policies and procedures.

We’ll be monitoring the issues and questions that the latest Apple gadget(s) and other wearable technology pose to employers and keeping you up to date on all the latest gear.  If you have questions, feel free to contact the author, who is a member of Seyfarth’s Social Media Team or your Seyfarth lawyer.

By: Jonathan L. Brophy

Employers know that the National Labor Relations Board may scrutinize their policies to determine if they violate the National Labor Relations Act (the “Act”) – and specifically, Section 7’s protections for “concerted activity.”

When searching for clear guidance on what standards to follow, employers soon find that the NLRB’s most recent fact sheet only addressed cases as recent as 2012 – leaving them to the unenviable task of navigating the myriad Administrative Law Judge Decisions (which are not legal binding precedent unless they have been adopted by the Board on review of exceptions), unpublished Board Decisions (also not binding precedent for anyone other than the parties at issue) and Board Decisions.  Three recent cases from the summer of 2014 demonstrate that the intersection of social media, employer policies and the Act, are still at the forefront of the NLRB’s agenda.  While these decisions do not provide clear standards, they offer valuable take-aways that employers should be aware of when drafting or reviewing their social media policies.

Encouraging Civility Is Not Unlawful

To be protected under Section 7 of the Act, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”  Policies that restrict those activities can violate the Act.

In June 2014, an administrative law judge issued a decision finding that the employer’s social media policy did not violate the Act.  The primary policy language at issue was as follows: “While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees, which could lead to morale issues in the workplace or detrimentally affect the Company’s business.”

The judge examined whether employees would reasonably construe the language to prohibit Section 7 activity and concluded that the policy language was lawful.  Specifically, it was not the job-related subject matter of the postings that were of concern to the employer, rather it was the manner in which the subject matter was articulated and debated among the employees.  The judge found that the language at issue “urged [employees] to be civil with others in posting job-related material and discussions on social media sites” and that such language did not violate the Act.  The policy could be understood under common parlance to prohibit posting of personal (not personnel) information about social relationships and similar private matters, which could result in morale problems or which could also constitute “harassment” (to which the social media policy referred). The judge also found that the policy did not prohibit posting of “personnel” information or “payroll information” or “wage-related information,” which would be unlawful under the Act.

The take-away here for employers is to ensure that the purposes of the social media policy (and other policies generally) are clearly articulated to ensure that discussion of subject matter protected by the Act (i.e., wages, work environment, job issues, etc.) are not prohibited.

Avoid Overbroad Confidentiality Rules

On August 11, 2014, the Board issued a decision in which it found that an employee had engaged in concerted, protected activity when she enlisted the help of coworkers to report a claim of sexual harassment.

In a footnote to the decision, the Board found that employer’s handbook violated the Act because it contained an overbroad and discriminatory confidentiality clause.  However, the Board also found that the employer’s instruction “not to obtain additional statements from her coworkers in connection with that Complaint” did not, in itself, violate the Act.  Specifically, the employer had instructed the employee to let the Human Resources representative obtain additional statements.  The company did not prohibit the employee from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in the future.  The Board acknowledged that employers have a “legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”

The take-away here for employers is to ensure that company policies, whether related to social media or not, are not so restrictive as to be construed against employees exercising their Section 7 rights.

Savings Clause For Policy Doesn’t Save Policy

On August 22, 2014, the Board issued another decision where it determined that the employer unlawfully terminated an employee who “liked” a comment about their employer.  (Click here to read Seyfarth’s One Minute Memo on that decision).

The Board also examined whether the employer’s social media policy violated the Act by analyzing three questions, whether: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

The Board found that the employer’s prohibition against “inappropriate discussions about the company, management, and/or coworkers” on social media was “sufficiently imprecise” such that employees would reasonably understand it to encompass protected Section 7 activity.  The employer’s general savings clause that the policy “is of no force or effect” if “state or federal law precludes it” was not enough, especially because the employer had, in fact, terminated two employees whose Facebook discussion of tax withholding issues was concerted, protected activity.  The Board also found it instructive (and harmful to the employer) that the policy provided “no illustrative examples of what the [employer] consider[ed] to be ‘inappropriate.’”

The take-away here for employers is that social media policies (and other policies, generally) should provide fairly specific examples of prohibited conduct under their policies.  Savings clauses likely will no longer survive NLRB scrutiny and policies should be crafted to avoid being overly broad, but specific enough to accomplish the protections desired.


Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.

Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here.  Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.

By: Carlos Lopez

Companies cannot have every employee with a Twitter account spreading (mis)information about their business, products or services to hundreds or thousands of followers, but the National Labor Relations Board is sending mixed signals about what, if anything, employers can do about it.

Good News: While the Board has been a relentless foe of almost all social media policies, a small bright spot has been that in 2012 the General Counsel issued a memo (OM 12-59) blessing policies requiring employees to include a disclaimer that they are not speaking on behalf of their employer when making posting relating to their employer.

The memo concluded that employers have “a legitimate need for a disclaimer to protect [themselves] from unauthorized postings made to promote [their] products or services, and this requirement would not unduly burden employees in the exercise of their . . . rights to discuss working conditions.”

Not so fast: A recent ALJ opinion flatly rejected the General Counsel’s guidance as “unpersuasive” and now employers have reason to be confused as to what the Act (and the Board) allows.  The case is available here and the provision of online communications policy in question reads:

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of the [the Company].

The ALJ read the provision to require inclusion of the disclaimer just about every time an employee posts about workplace conditions.  Indeed, the ALJ speculated that even “liking” another person’s comment about working conditions on Facebook would require a disclaimer, but then added “although it is hard to imagine how that could be accomplished.”

The ALJ did concede that companies have a legitimate interest in their employees not appearing to speak on their behalf.  Unfortunately, he gave short shrift to that interest, finding that “unless an employee is actively seeking to give the appearance of speaking on behalf of an employer,” it “defies common sense” that the vast majority of employee postings would be misconstrued as statements of the company.

Not surprisingly, the ALJ determined that the policy was extremely burdensome and unlawful because it would have a reasonable tendency to chill speech protected by the National Labor Relations Act.

Now what?  There are three big takeaways for employers:

1. The decision may be appealed.  This opinion muddies the water and leaves employers without clear guidance on an important issue.  An appeal would give the Board an opportunity to reinstitute clarity, one way or the other.

2. The policy is only burdensome if read to require a disclaimer every time an employee posts about the employer.  A policy that instead required a single disclaimer, say on an employee’s profile page, could shift the balance of burden versus legitimate interest in favor of the employer.

3. Employers can continue to prohibit employees from appearing to speak on behalf of the company without authorization.  The decision unambiguously noted that “it may be assumed that employees do not have a legitimate . . . right to speak without authorization on behalf of their employer.”  (Emphasis in original).  Of course, absent a disclaimer, the practical question is how?

This topic, and all topics related to social media, will be followed by Seyfarth’s Social Media Team.  Please stay tuned for further developments. Until then, please contact the author, a member of Seyfarth’s Social Media team, or your Seyfarth attorney with any questions.

We are pleased to provide you with our Social Media Privacy Legislation Desktop Reference.

There is no denying that social media is an ever-present issue in the workplace and in our personal lives. Since April 2012, a growing number of states have passed some form of social media privacy legislation. Nearly all other state legislatures, as well as Congress, considered, or are considering, some version of legislation affecting employee privacy and social media. Consequently, employers, HR professionals and in-house counsel are faced with daily situations requiring guidance.

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 listing on one axis the states that have enacted social media privacy legislation, and on the other, whether each state’s law contains one or more key features.
  • 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 issues and concerns, social media discovery, federal law implications, and conflicts of laws.
  • Concludes with some best practices to assist companies in navigating this challenging area.

We hope that you find its content useful.

If you would like a hard copy of the Desktop Reference, please contact Robert Milligan at or Scott Schaefers at