Blog Posts: Social Media Compliance
As we've noted, the National Labor Relations Board (NLRB) has issued several rulings that protect employee rights to discuss pay and working conditions on social-media sites such as Facebook. It has, for example, ruled that an employer's prohibition of electronic posting of defamatory statements about the company was an unfair labor practice that interfered with employees' right to engage in concerted activity.
Netflix inadvertently prompted the SEC to update and clarify its regulations as they relate to the use of social media by public companies. This update was issued following an SEC investigation of Netflix chief executive officer Reed Hastings after a July 3, 2012 post on his personal Facebook page stating "Congrats to Ted Sarados, and his amazing content licensing team. Netflix monthly viewing exceeded 1 billion hours for the first time ever in June."
It is becoming more difficult for employers to control use of social media by employees, while at the same time it is increasingly important for every company to educate employees in the appropriate use of social media. Three states have introduced legislation limiting an employer’s ability to access employees’ social-media accounts.
The law surrounding the legality of “Facebook firings” continues to evolve. Recently, the National Labor Relations Board (NLRB) issued its first ruling on a social media-related firing case. It adopted an administrative law judge’s decision that it was lawful for a car dealership to fire an employee solely because of a particular set of comments he posted on Facebook about an accident at one of the employer’s dealerships.
As we discussed last month, federal legislators, as well as legislators in at least ten states, have proposed laws that would prohibit employers from demanding passwords for social-media accounts of employees and job applicants. On August 1, 2012, Illinois Governor Pat Quinn signed such a bill into law, in the form of amendments to the state’s Right to Privacy in the Workplace Act. The new law will go into effect on January 1, 2013, making Illinois the second state (after Maryland) to enact such a law. Similar proposed federal legislation – the Social Networking Online Protection Act (SNOPA) in the House and the Password Protection Act of 2012 (PPA) in the Senate – is still pending.
While looking at job applicants’ publicly available information on Facebook, Twitter and other social media accounts has become a common, though risky, practice, some employers have gone further by requesting the passwords for the social-media accounts of applicants and/or current employees, a controversial practice that Facebook recently condemned. Now, legislators are pushing back. Maryland already has a law, which will go into effect on October 1, 2012, that prohibits employers from requesting or requiring access to employees’ and applicants’ accounts. The federal government and more than a dozen states are considering similar legislation.
As we mentioned recently, the National Labor Relations Board (NLRB) issued its third report within a year on employers’ social-media policies. In the report, the NLRB’s General Counsel argued that six out of the seven policies examined were overbroad and, therefore, unlawful under the National Labor Relations Act (NLRA). One of the policies the report singled out was that of General Motors (identified in the report only as “a motor vehicle manufacturer”), which the report said contained several unlawful provisions. However, the NLRB’s report is not binding law, and a decision by an administrative law judge from the NLRB’s Division of Judges on GM’s policy disagreed with the General Counsel on most of the provisions in GM’s policy, finding all but one to be lawful.
While looking at job applicants’ publicly available information on Facebook, Twitter and other social-media accounts has become commonplace, some employers have gone further by requesting applicants' and employees' passwords for their social-media accounts, a controversial practice that Facebook recently condemned.
Liking a Facebook page can get employees in trouble at work, and clicking the "like" button isn't the only social-media move that's off limits for employees. Increasingly, employers are adopting social-media policies that set boundaries for employees' online behavior. For those who don't, employees may push those boundaries to their limits.
New media comes with new risk. Eight years after the launch of Facebook, it is clear that an employer can be at risk because of its employees' activities on social networking websites. Social media can blur the line between personal and professional behavior. An organization can reduce the risk of employer liability by establishing a social media policy for its employees.