For businesses that use social media to vet job applicants or to monitor employees, change is afoot. On Tuesday, May 21, Governor Inslee signed into law a bill that makes it illegal for any employer in Washington State to require an employee or applicant to provide access to his or her social media account. This law covers any employer with one or more employees, and it goes into effect July 28, 2013. Here’s the scoop:
The law prohibits employers from requesting, requiring, or coercing a current employee or job applicant into doing any of the following:
- Giving the employer the login information to a private social media account
- “Friending” a manager or other third person so the employer can view the individual’s account
- Requiring that the employee change his or her privacy settings to make the account publicly available
- Logging into the account in the employer’s presence so as to enable the employer to view the content
The law also expressly prohibits employers from taking any “adverse action” against an employee for refusing to engage in any of these prohibited acts. This means firing, refusing to hire, or disciplining the employee or applicant, or threatening to do so.
There is a narrow exception to the law for when access to an account is necessary for the company to make a factual determination during a workplace investigation. This applies only if the employer has information that leads it to believe (1) that some content on the employee’s account might violate the law, regulatory requirements, or prohibitions against employee misconduct, or (2) that the employee has disclosed the employer’s confidential information on the account. Even under these circumstances, however, the employer still may only ask to view the account – it may not request the employee’s password.
This law does not apply to a work-focused technology platform primarily intended to facilitate communications and collaboration among employees, such as an in-house intranet or social network. It also does not prevent the employer from requesting login information for an account, service, or device the employer provides or pays for or that is only provided by virtue of the employment relationship. The law also will not apply if the employer unintentionally learns an employee’s login information, such as through a company mobile device or program monitoring the employer’s network, so long as the employer does not use the login information to access the employee’s social networking account.
Violations of this law can have serious ramifications. Employees may bring a civil action against employers who violate the law and, if they win, will be entitled to a $500 statutory penalty, any actual damages suffered, and – importantly – reasonable attorney’s fees and costs. An employer who is sued for a violation but prevails will only be able to recover attorney's fees if it can prove the action was frivolous.
Eleven states have now enacted laws of this nature, and similar legislation is being considered in over thirty more. If you have any questions about this development or how this law impacts your business, please don’t hesitate to contact me, Diana Shukis, or Greg Duff.
The rash of NLRB guidance and new protections for employee social media activity discussed in my previous posts may make employers shy about taking corrective action based on an employee’s social media postings. While employers should always be careful in these situations, however, the mere fact that something is posted online does not make it “protected.” Recent examples in the news are a great reminder that where a posting is vulgar, offensive, or airs a petty grievance without implicating employees’ rights to discuss the terms and conditions of employment, the employer can and in many cases should discipline the employee. Where a posting is less offensive, however, the employer should tread carefully, as unpopular personnel decisions can also draw serious scrutiny.
It’s been a busy month on the social media front with judicial, legislative and regulatory activity. With all this activity, it seems appropriate to give everyone a brief update on some of these recent developments and their effects on the guidance I provided in my previous posts.
Accessing Social Media Accounts
California has now joined Illinois and Maryland in banning employers from requesting social media passwords from current or potential employees or from requiring that employees log in while in the employer’s presence. Other states with pending legislation on this subject include Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina and Washington.
Because this trend is sweeping the nation, employers in any state should be careful and not request that employees divulge their social media passwords or otherwise pressure employees into granting access to social media accounts. This is good advice not only because of the legislative action, but for common sense reasons. Accessing an employee’s private social media account can lead to, among other things, the discovery of the employee’s membership in a protected class or the employee’s protected concerted activity, the employer’s knowledge of which could cause problems if the employee is later disciplined. In other words, ignorance is bliss. This is especially important to remember as the election draws near and employee use of social media to express political beliefs becomes more and more frequent.
Remember when Facebook was just for college kids? Well, things have changed. These days it seems like even giant companies are using social media to show their warm and fuzzy sides and to connect with customers. Obviously, the CEOs of these companies are not spending their time maintaining the accounts and posting clever comments. On the contrary, companies usually dedicate one or more employees to speak on behalf of the company, through a company-sponsored Facebook, Twitter, or other social media account. If done right, an account can build up thousands of followers and grow to host useful information, photos, or communications, becoming an important resource for customers.
But what happens if the employee who is running a company-sponsored account quits? In a perfect world, that employee would gladly relinquish control of the account back to the company. But what if the employee leaves on bad terms? What if the employee leaves for a rival company? What if the employee changes the password and starts posting negative comments, confidential information, or trade secrets? Sorry to get all lawyer-y, but these are the questions that keep me up nights.
Thank you Victoria.
If you are anything like me, you have been eagerly awaiting another update from the NLRB on its social media decisions. Well, wait no longer. On May 30, the NLRB’s Acting General Counsel issued a third report on recent social media cases. This complements the two previous reports from January 12, 2012, and August 18, 2011. For more information on the first two reports, see my recent post.
The new report does not offer any groundbreaking new principles for employers seeking to implement or enforce social media policies. This is good news, as it means that you don’t need to rewrite your social media policy every time the NLRB issues a report. This report does elaborate on a few of the key principles, however, and it offers some new and interesting examples. It also includes as an example an entire social media policy that was found lawful.
Our newest post is provided by Victoria Slade, a member of Garvey Schubert Barer's Labor and Employment Group and a frequent collaborator with our Hospitality, Travel & Tourism Practice Group. Victoria's post looks at two recent National Labor Relations Board reports and their impact on employers' social media policies. Several planned upcoming posts will also be looking at social media and its effects on hoteliers's and restaurateurs' operations - stay tuned.
Thank you Victoria for this important update.
Thanks to the internet, a single disgruntled employee can now do dramatic damage to a company’s image through posts on social media sites. (Just ask Domino's Pizza or Hotel Renaissance.) The social media policies employers have instituted in the last few years may work to inhibit online employer-bashing; however, they can also come perilously close to violating the law. To assist employers in navigating this rapidly changing area of law, the National Labor Relations Board (“NLRB”) has issued two social media reports in the last seven months, explaining their rulings in several recent social media cases. As this posting demonstrates, even if you think you have a good social media policy, you may want to revisit it, given the latest NLRB guidance.
Employees in both unionized and non-unionized workplaces have protected rights to certain types of speech under the National Labor Relations Act. These include, briefly, the right to discuss terms and conditions of employment and unfair labor practices with coworkers and the right to engage in concerted activity. Employers who want to restrict employees from making disparaging comments about the company online must carefully phrase their policies to avoid trampling on these rights.
Mike Brunet is an associate working closely with Diana Shukis in our Employment Law Practice Group. Both Mike and Diana do a lot of work with our hospitality clients in the areas of personnel and management issues - from creating and implementing comprehensive policies and procedures to providing key, timely advice during volatile workplace situations. Today, Mike tackles the hot topic of employee social networking, from an employer’s perspective:
Greg Duff, Editor
Greg Duff founded and chairs GSB’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.