Employers be aware: the advent of social media as the preferred platform for people to share opinions, insights, experiences, and perspectives with others—and quickly—has resulted in an emerging area of legislation and litigation in the employment arena. For example, California recently passed a bill that prohibits an employer from requiring a prospective employee to disclose a user name or account password to access a personal social media account that is exclusively used by the prospective employee. Indeed, employers should know that each violation of this statute subjects that employer to a fine of up to $10,000 per violation. Another statute currently pending in the California Legislature would, if passed, prohibit an employer from threatening an employee with, or taking specified pecuniary action for, refusing to disclose information related to their personal social media account. Separately, Congress’s enactment of the National Labor Relations Act (“NLRA”) to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, is being cited to and interpreted by courts around the country on a daily basis in an effort to further define the limits of employee privacy protections when it comes to social media usage. In fact, under the NLRA, courts have held that employees have the right to self-organize through social media sites including openly “discussing” complaints about the terms and conditions of their employment, even if these so-called discussions consist solely of the complainer and a single listener; employers cannot try to censure an employee for this type of activity. Moreover, courts have found that an employer violates the NLRA if its actions “reasonably tend to chill employees in the exercise of their [NRLA] rights.”
So what does this all mean? It is probably a good idea for employers to audit their social media policies to make sure they are narrowly tailored and do not result in censuring their employees from exercising their NLRA rights or otherwise violate state or federal law. Moreover, the days of Big Brother watching are not quite imminent because employers have no right to access—directly or indirectly—an employee’s personal social media account. The law is complex and continuing to evolve in this area—with logic as its guiding force. But one thing is certain. Even though the practical reality is that nothing posted on the Internet is truly private, employers must be cognizant of both their policies and their actions taken against their employees for what they put on the Internet. Even if an employer has legally legitimate reasons for reprimanding an employee that is separate from their non-work related online actions, that employer may find itself entangled in litigation trying to prove it. Employers should consult with counsel in reviewing their social media policies to make sure they comply with the emerging law. Employers should also consider seeking legal guidance before reprimanding employees for their Internet behavior.
Pantea Yashar, Esq., Associate in Litigation and Employment Law Departments
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