Developments in Social Media Policies
Question: There has been a lot of recent talk about social media with respect to employer monitoring of employees' social-media activity and, more specifically, what employers can and cannot ask employees related to their social media activity. Can you please provide a summary of the recent developments in this area?
Answer: A variety of limitations on employers' use of social media have been created through recent decisions by the National Labor Relations Board and new state laws. The most significant recent developments have been the NLRB's aggressive defense of employees' rights to engage in "concerted activity" via social media and state legislation restricting employers' right to access employees' social media accounts.
"Concerted Activity" Under the National Labor Relations Act
Section 7 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 157, grants employees the right to engage in collective bargaining and "concerted activities for the purpose of collective bargaining or other mutual aid or protection." In recent years, the NLRB has taken the position that an employee's activity on social media may be protected as "concerted activity" under the NLRA. For instance, employees who complained to each other on Facebook about the conduct of their supervisor as it relates to the "terms and condition of their employment" and about management's refusal to address their concerns are engaged in protected "concerted activity." Bettie Page Clothing, 359 N.L.R.B. No. 96, slip. op. at 1 (Apr. 19, 2013). However, the NLRB has also found protected "concerted activity" on social media even when social media activity is not specifically directed toward, or created in conjunction with, coworkers. For example, the NLRB has classified an employee's Facebook activity as "concerted activity" where posts "vocaliz[ed] the sentiments of his coworkers and continu[ed] the course of concerted activity that began when the salespeople raised their concerns [about the event] at the staff meeting." NLRB, Div. of Operations-Mgmt., Report of the Acting General Counsel Concerning Social Media Cases, Memorandum OM 11-74, at 6–7 (Aug. 18, 2011) Indeed, the NLRB has said that social media activity qualifies as protected "concerted activity" even where individual employees merely "seek to initiate or to induce or to prepare for group action." Hispanics United of Buffalo, Inc., 359 N.L.R.B. No. 37, slip. op. at 2 (Dec. 14, 2012). As such, the extent to which employers can base employment decisions on social media activity has been significantly narrowed.
Relatedly, the NLRB has also devoted its recent attention to employers' social media policies. NLRA Section 8(a)(1), 29 U.S.C. § 158(a)(1), makes it unlawful for an employer to "interfere with, restrain or coerce employees in the exercise of the rights guaranteed in [NLRA Section 7]." In other words: social media policies cannot "chill" "concerted activity."
New State Laws Regulating Employers' Use of Employees' Social Media
Currently, at least 12 states -- Arkansas, California, Colorado, Illinois, Maryland, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah and Washington -- have enacted legislation prohibiting employers from requesting or requiring disclosure of employees' and potential employees' personal social media account passwords.
Monitoring Employees' Social Media Activity
Although the NLRA and various state laws significantly enlarge the scope of protected and private social media activity, employers still have significant bases upon which to monitor or act upon their employees' social media activity. Federal and state courts have consistently upheld the monitoring of Internet activity conducted on employer-owned devices or on employer-provided networks when company policies put employees "on notice" of the fact that their activity may be monitored. See, e.g., TBG Ins. Servs. v. Superior Court, 96 Cal. App. 4th 443, 452 (2002) (computer usage in the employment context "carries with it social norms that effectively diminish the employee's reasonable expectation of privacy with regard to his use of his employer's computers."); Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002) (no reasonable expectation of privacy in workplace computer files when the employer expressly reserved the right to inspect the computer); United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (employee did not have a legitimate expectation of privacy with regard to his employer's record of his Internet usage when employer's policy clearly states that employer would "audit, inspect and/or monitor" employees' use of the Internet at work).
Although bills have been introduced in Congress, see, e.g., Social Networking Online Protection Act, H.R. 537, 113th Cong. (2013) (prohibiting employers from requiring or requesting that employees provide a user name, password or other means for accessing a personal account on any social networking website), no federal law yet specifically restricts employers from monitoring or using social media activities for employment-related decisions. That said, a variety of general statutes may limit the extent to which employers may use employees' social media activity as the basis for employment decisions. Most significantly, a variety of states have laws that prohibit subjecting employees to adverse employment actions because of employees' engagement in lawful off-duty activity unrelated to the employee's job duties. See, e.g., Colo. Rev. Stat. Ann. § 24-34-402.5; Cal. Lab. Code § 96(k); N.Y. Lab. Law § 201-d. Likewise, since monitoring social media activity may provide employers with knowledge of an employee's or applicant's protected status (such as disability, veteran status or sexual orientation), anti-discrimination and retaliation laws logically extend to employment decisions based social media activity.
Keisha-Ann G. Gray is a partner in the labor and employment department of Proskauer Rose in New York and co-chair of the department's employment litigation and arbitration practice Group. Proskauer Associate Keith A. Goodwin assisted with this article.