Archive for the ‘Social Media’ Category

NLRB Attacks Employer Handbooks – Again

Authored By: Stephen W. Lyman


Confidentiality, Public Relations and Blogging Policies Held to Be Unlawful

As we reported in our Employment Law News article in January, the NLRB has been very active in challenging any employer policy that could reasonably be understood by an employee to interfere with rights protected under the National Labor Relations Act (“NLRA”).  The NLRA protects private employees – whether or not a union is involved – in freely discussing wages, hours and working conditions and joining together for their mutual aid and protection.  Many common employer policies dealing with confidentiality, external communications and social media have been held to have been unlawfully overbroad and have been ordered to be rescinded.  Now in a new case decision by the NLRB involving DirecTV, specific language in four employer policies was found to be illegal.    (more…)

Michigan’s New “Internet Privacy Protection Act”

Authored By: Jonathon A. Rabin


Michigan Governor Signs “Internet Privacy Protection Act.”

The Basics of the New Michigan Law

On December 28, 2012, Governor Rick Snyder of Michigan signed into law the Internet Privacy Protection Act.  In general, the law, which takes effect immediately, prohibits an employer from requesting that an employee or applicant disclose or provide access to his or her personal internet account, such as a site for social media, e-mail or stored data.  The law also prohibits an employer from taking action against an applicant or employee for refusing to provide such access.  The new law regulates educational institutions in a similar manner.  Michigan joins Maryland, Illinois, California and New Jersey that have also passed social media laws protecting employees in various circumstances.  (more…)

Good Advice: NLRB Memo “Likes” Employer’s Social Media Policy

Authored By: Stephen W. Lyman


Employer’s Social Media Policy and Savings Clause Are Okay

For the past two years, private employers have been struggling to understand just what the NLRB expects of them when it comes to Social Media Policies (among other things – confidential investigations; employment-at-will; off-duty access).  The NLRB General Counsel has even issued three separate Memos attempting to outline just what is and what is not acceptable when it comes to Social Media Policies. (See our Blog post on this topic.) Now the NLRB has added some more guidance that will be helpful to employers.  The NLRB’s Division of Advice, the internal division that gives legal advice to NLRB Regional offices on whether to issue complaints, has issued an Advice Memorandum that not only finds an employer’s Social Media Policy acceptable (including its “savings clause”) but also finds that the termination of an employee for violation of the policy to be lawful. (more…)

New Password Protection Laws Have Employers A-”Twitter”

Authored By: Robin M. Sheridan


What’s Your Password?

Social networking and social media  have certainly been in the HR headlines recently. The NLRB’s aggressive approach to these issues has given private employers headaches in trying to figure out what they can require of their employees when it comes to social media.  Now some states are getting involved.  And this may be the start of a trend.  We all need to be ready to deal with new state laws that may be heading our way.

State Laws Now on the Books

In May of this year, Maryland became the first state to enact a law that prohibited employers from requiring employees and applicants to disclose their social media account usernames and passwords.  The User Name and Password Privacy Protection Act, effective on October 1, stemmed from an incident where a former corrections officer was asked by his supervisor for his username and password consistent with the employer’s policy on regular background checks to check for gang affiliations.  The employee was subsequently fired.  The American Civil Liberties Union filed suit on the corrections officer’s behalf claiming it was a violation of his privacy.

Illinois followed suit, passing a password protection law in August, amending their Right to Privacy in the Workplace Act.  This law, however, only protects passwords and not other information such as usernames that are part of the public domain.  First-time offenders will face a fine of anywhere between $100 and $300.

And California took password privacy one step further in September by prohibiting employers and universities from asking for usernames and passwords of students/employees or applicants.

State Laws on the Horizon

In addition to the three already enacted laws, Delaware passed a law extending password protection to students and is currently considering extending that protection to employees and applicants. Legislation has also been introduced in New Jersey, Washington, Michigan, Minnesota, Missouri, New York, South Carolina, Pennsylvania, Ohio and Texas.  And just last week (October 25) the New Jersey Senate approved an Assembly bill that offers such protection, though the New Jersey Assembly will need to reapprove it as the Senate amended it to exempt law enforcement agencies.  The bill prohibits employers from asking for usernames and passwords or other information to gain access to social networking sites and imposes a fine of up to $1,000 for a first offense and up to $2,500 for subsequent violations.  Employees and applicants would also have the right to sue for money lost due to termination or refusal to hire.

Federal legislation has also been introduced, including the Password Protection Act of 2012 and the Social Networking Online Protection Act, which have been referred to the House Committee on the Judiciary and the House Committee on Education and the Workforce, respectively.

Practical Takeaways for Employers 

For employers in states that have already passed password protection laws or those in states that will pass similar laws in the near future, it is important to understand what is covered.  For example, does it apply to only social networking sites or does it have a broader scope? The Maryland law covers “any personal account or service” accessed through “computers, telephones, personal digital assistants, and other similar devices” and potentially includes other accounts such as email or online banking.  The Illinois statute has a more narrow definition that potentially only covers what are generally thought of as “social networking” sites.  Further, employers should determine if the law only covers employee and applicant personal accounts, therefore permitting them to continue requiring access to business accounts.  Employers will want to consider the potential enforcement risks they face by violating the laws.  For example, while the Illinois law allows for an employee to bring a civil claim for damages, the Maryland and California laws do not have enforcement provisions.

If you have questions about this topic or would like further information, please contact Robin Sheridan at (414) 721-0469 or rsheridan@hallrender.com, Stephane Fabus at (414) 721-0904 or sfabus@hallrender.com or your regular Hall Render attorney.


 

NLRB Makes It Official – Requiring Employees to Be Courteous Is Unlawful

Authored By: Stephen W. Lyman


NLRB Adopts ALJ Decision Finding Employer “Courtesy” Policy to Be Unlawful

Last Fall, an Administrative Law Judge for the NLRB issued one of the first opinions addressing social media in the workplace.  The ALJ’s decision addressed two separate social media issues in what you may recall as the “hot dog cart” case or the “Land Rover in the pond” case.  We reported that holding in our November 1, 2011 Employment Law Briefing.  (See our article below).

Termination Was Lawful, but …

Now it’s official.  The NLRB upheld the ALJ and issued its opinion that had some bad news for employers and a little bit of good.  First the good.  The NLRB was seemingly employer-friendly in ruling that an employer’s decision to fire an employee for his postings on Facebook did not violate the NLRA.   The employee, a BMW salesperson, posted comments to his Facebook page mocking his employer for serving cheap hot dogs at a high-end BMW 5-series sales event.  The employee was concerned that the cheap hot dogs at a high end sales event would hurt his chances for sales commissions because potential customers would be offended.   The same employee also posted comments criticizing another employee for allowing a teenager to test drive a Land Rover, which ended up in a pond.

(more…)

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