Tag: Social Media

NLRB Rejects Another Social Media Policy

Last month in Echostar Technologies, L.L.C., 2012 NLRB LEXIS 627 (2012), an NLRB Administrative Law Judge adopted the Acting General Counsel’s rules regarding social media policies by finding that a social media policy interfered with Section 7 rights by prohibiting employees from posting “disparaging or defamatory comments” about the employer and from engaging in social media activities “on Company time.”  The Law Judge noted that the employer’s policy did not include a disclaimer to assure employees that the policy was not intended to interfere with their right to engage in protected concerted activity, and that in the absence of such a disclaimer the prohibition of “disparaging” postings could have a chilling effect on the right of employees to engage in robust discussions about their terms and conditions of employment, citing to the Board’s recent social media policy decision in Costco Wholesale Corp., 358 NLRB No. 106 (2012).  With respect to the rule prohibiting employees from using social media “on Company time,” the Law Judge found that the restriction was overbroad in the absence of any acknowledgment that employees remained free to engage in social media activities during break times or lunch periods.  This decision is further evidence of the Acting General Counsel’s intention to scrutinize employer social media policies.

For more coverage of the NLRB’s recent rulings on social media policies click here.

NLRB Announces its First Formal Ruling on the Legality of Social Media Policies

In line with the series of guidelines issued by the Acting General Counsel over the past year, the NLRB has announced its first formal ruling on social media policies, finding that the social media policy of Costco Wholesale Corp. is unlawful because it broadly prohibits online comments “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies” in the employer’s handbook.  358 NLRB No. 106.  The case represents the first ruling by the Board on the legality of social media policies, and follows the Acting General Counsel’s admonition that overbroad policy statements will be held unlawful.

The Board observed in its opinion that in the absence of a disclaimer notifying employees that the rule is not intended to restrict the right to engage in protected concerted activities, the broad prohibition on comments that might “damage the Company” is overbroad and unlawful because “employees would reasonably conclude that the rule requires them to refrain from engaging in” communications that are critical of the company or its supervisors despite the fact that the policy does not appear to address or prohibit critical comments about the company.  In this respect, the opinion appears to reflect the Board’s approach that policy statements will be judged not by what they purport to prohibit, but by whether employees could reasonably construe them as restricting their right to communicate about terms and conditions of employment.   The Board observed that context matters, however, suggesting that employers might avoid liability by inserting appropriate disclaimers in their social media policies or by tying the prohibition to specific examples of egregious conduct such as the use of profane language, abusive or unlawful statements, or comments reflecting sexual or racial harassment.

The Costco opinion highlights the fact that overbroad social media policy restrictions on negative comments will be found to be unlawful by the Board, and that imposing discipline for making such comments might expose employers to unfair labor practice charges – even for non-union workforces – and the potential for wrongful termination claims.  As referenced above, some of this risk can be managed by avoiding using overly broad restrictions, by carefully wording your policy to specifically notify employees that their protected rights are not encompassed by the policy restrictions, and by including examples of prohibited activity to provide context to the restrictions imposed.  As have the prior guideline memoranda from the Acting General Counsel, this ruling provides a reminder that all businesses should reevaluate both the language and impact of their internet/social media policies with an eye towards these potential areas of risk.

Social Media: The Bane of HR Leader’s Existence and How to Manage it

Mark D. Nelson, partner in the Chicago office, authored the article “Social Media: The Bane of HR Leaders’ Existence and How to Manage it” for the fall issue of HR Pulise, the official publication of the American Society for Healthcare Human Resource Administration.  In the article Mark discusses social media concerns for health care organizations, including why a social media policy is necessary, how health care providers can avoid social media issues and NLRB standards for social media policies.  To read the full article click this link:  Mark Nelson – HR Pulse Magazine, fall 2012 issue

California Joins Other States in Implementing Laws Governing Employer Access to Employee’s and Applicant’s Social Media Accounts

California is poised to be on the front lines of implementing laws governing when and if employers can require applicants or employees to divulge their social media passwords and grant employer access as part of the hiring process or in the course of the employment relationship.  Last week, the California Senate voted 28-5 in favor of Assembly Bill 1844, which would prohibit employers from forcing employees and prospective workers to turn over usernames and passwords for their social media accounts and also would ban employers from discharging, disciplining or threatening to retaliate against employees or job applicants who did not comply with such requests.  Of note, the Senate’s proposed amendments clarify that employers may request personal social media information when related to an investigation involving alleged workplace misconduct or violations of the law.  The Senate also amended the bill to specify that the State’s labor commissioner is not required to investigate or determine any violations of the bill.  The proposed bill next moves to the Assembly for a vote.

This proposed California bill comes on the heels of multiple memoranda issued by the National Labor Relations Board analyzing various implications of social media in the workplace and specifically opining on what employers can and cannot review and regulate in the context of employee (and applicant) rights.  There currently are hundreds of cases pending before the National Labor Relations Board concerning social media issues — and the Board has made it abundantly clear that its jurisdiction to protect employee rights is not limited to organized (“unionized”) workplaces.

Maryland passed the first state law prohibiting employers from requiring disclosure of social media information which goes into effect October 1, 2012.  Illinois also passed a similar law on August 1, 2012 (see our prior coverage here) which takes effect on January 1, 2013.   Massachusetts, New Jersey and New York are also currently considering similar legislation.

To Compel Discovery Of A Party’s Social Media Content In Pennsylvania, There Must Be A Hook

Pennsylvania trial courts have been particularly active in the past few years in issuing opinions regarding how much, if any, of a party’s non-public Facebook and other social media content are subject to discovery in litigation.  A July 2012 opinion issued by Judge Wettick in Allegheny County, Trail v. Lesko, highlights these increasing discovery disputes and outlines the recent trends of the courts addressing the disputes.  As Judge Wettick found, courts have compelled very broad access to social media content in cases where one party has articulated that the publicly available portions of the other party’s social media site contains information relevant to the prosecution or defense of a claim.

Although there are no appellate court opinions on this subject matter in Pennsylvania, there are several trial court opinions.  On the one hand, some of the cases permit very broad access to Facebook and other social media content.  For example, at least three written opinions in Pennsylvania since 2010 have required the party from whom discovery is sought to provide his or her username, password or other login information to the requesting party. In these cases, the requesting party provided the court with specific evidence from the individual’s publicly accessible pages showing the likelihood that full access to the social media account would garner further relevant information.  In Zimmerman v. Weis Markets, Inc., the plaintiff claimed personal injuries from a workplace injury and his public profile said he enjoyed “ridin” and “bike stunts” and showed pictures of him with a black eye and his motorcycle both before and after the workplace accident at issue in the litigation.  And, as one Pennsylvania trial court put it in McMillen v. Hummingbird Speedway Inc., “[w]here there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, . . . and given [the case law’s] admonition that the courts should allow litigants to utilize ‘all rational means for ascertaining the truth,’ . . . and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”

On the other hand, a number of Pennsylvania trial courts, in written opinions, have completely denied any and all access to a party’s social media content.  Many of the requesting parties in these cases failed to identify any compelling or specific reason for obtaining access to the other party’s non-public social media content.  These courts have concluded that the mere fact that a party has a social media account, without anything more, is insufficient to justify broad discovery access to the account.

In Trail, Judge Wettick provides a comprehensive review of Pennsylvania’s case law addressing this question.  Judge Wettick also highlights cases from a number of other jurisdictions, which are generally consistent with the approach of Pennsylvania courts that have addressed this question in that the other jurisdictions tend to require some factual predicate suggesting the existence of relevant information prior to ordering access to the information being sought.  Unlike Pennsylvania, though, some other jurisdictions have sought to establish more of a middle ground between wholesale denial of the request for social media content and unlimited access to the user’s profile.  Judge Wettick reached what is perhaps the obvious conclusion from these cases: litigants seeking access through discovery to a party’s Facebook or other social media content must show that there is a sufficient likelihood that the discovery requested will provide relevant evidence that is not otherwise available.  Further, Judge Wettick said the court must consider the level of intrusiveness as balanced against the need for the discovery.  Although courts are still wrestling with this question and the answer will continue to evolve, the courts seem to fall back on the age-old principle that discovery should not be an unbridled fishing expedition into a party’s private information.  However, with a big enough hook (i.e., publicly accessibly portions of the social networking site suggesting that further relevant postings are likely to be found by access to non-public portions), Pennsylvania courts are willing to provide very broad access to a party’s social media content.

Privacy Rights On Facebook: Are Employees Protected?

Jerrold Wohlgemuth, counsel in the Florham Park, NJ office, authored the article “Privacy Rights On Facebook: Are Employees Protected?” which appeared recently in Employment Law 360.  Jerry’s article looks at the legal implications of employers having access to and use of employee comments on social media networks such as Facebook.  To read the full article click here.

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