Recently in Social Media and the Workplace Category

May 31, 2012

Want a labor-law-legal social media policy? Bookmark this, I guess.


Yesterday, the National Labor Relations Board's Acting General Counsel Lafe Solomon issued a new report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees. It includes a copy of a social media policy that the NLRB found to be lawful.

However, the report, as a whole, left me shaking my head. Inconsistent, overreaching, it's a hot tepid mess. So, before you go all cut and paste on me from that sample policy, read my critical two cents after the jump...

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May 14, 2012

U.S. Senate now has its own FB password bill; NJ nears similar ban


Well, that didn't take long.

Late last month, I reported on a bill that had been introduced in the U.S. House of Representatives, known as the Social Networking Online Protection Act (SNOPA), that would prohibit employers, schools, and universities from requiring someone to provide a username, password or other access to online content.

Now, it's the U.S. Senate's turn to get in on the act with its own password bill. Plus, after the jump, I'll have an update on similar legislation winding its way to Governor Christie in New Jersey...

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May 11, 2012

A Facebook firing? An employer in hot water? Ya don't say...

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Yesterday, I gave my social media in the workplace spiel to a great crowd in Hershey, PA, at the Banyan Consulting 12th Annual Conference. Not surprisingly, the majority of questions posed involved the attention that the National Labor Relations Board has paid to social-media-related employee discipline. And that reminded me that a case I discussed earlier this week, the one involving overly-broad handbooks policies that restricted employee discussions of wages, had a second component worth discussing; namely, an unlawful Facebook firing. More after the jump...

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May 7, 2012

Report: Employees share WAY more Facebook info than they think

FacebookMaryland has a new law forbidding employers from demanding that job applicants and employees divulge online passwords. Two weeks ago, the federal government proposed similar legislation. And, last week, news surfaced that Delaware may be placing the same restrictions on employers.

But who needs to demand online passwords, when, according to this report from Consumer Reports, your employees are sharing way more information on Facebook than they realize.

Some of the highlights from the report and a few related tips for employers follow after the jump...

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May 1, 2012

New NLRB election rules may get derailed; plus more on SNOPA

Two quick updates for you today; one labor, one employment.

Word has trickled in that the U.S. District Court for the District of Columbia held a conference call with lawyers from the National Labor Relations Board, the U.S. Chamber of Commerce, and the Coalition for a Democratic Workplace, and informed them that the Court would rule by May 15 on a pending challenge to the NLRB "quickie" election rule changes. You can view those rule changes in this post I did last week.

And in case you missed yesterday's post on new federal legislation that would bar employer demands for online passwords, be sure to check it out. Late in the day, I scored a copy of the bill, known as Social Networking Online Protection Act (SNOPA), and added a link. We know now that employers that violate the law will be subject to civil fines of up to $10K. The Secretary of Labor may also seek injunctive relief. However, the federal law does not mention a private cause of action for individuals.

Unlike the legislation passed in MD, there is no safe-harbor that would allow an employer to require or request that an employee provide the employer with access to a social media account to investigate, for example, an allegation that the employee downloaded the employer's proprietary data without authorization.

Additionally, the federal legislation would also prohibit grade schools and universities from getting social-media login information from students.

April 30, 2012

New federal law will bar employer demands for online passwords #SNOPA

A few weeks ago, as reported here, Maryland became the first state to pass legislation that would ban employers from demanding that employees or job candidates turn over their social media passwords.

Could a federal law be soon to follow? Find out, after the jump...

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April 10, 2012

And the first state to ban asking for employee Facebook passwords is...

marylandflag.jpegIt's Maryland. (Now if only they would do something about this).

Details after the jump...

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April 6, 2012

Meyer(s) on Pending Employment Bills, Social Media, and Slides

On Employment Legislation:
Just when you thought you had the employment law landscape figured out, along comes pending legislation that could change everything. From age discrimination claims to workplace flexibility to unionization and labor organizing, new bills in the House and Senate may change the way you run your business. Here I am discussing all that jazz with Stephanie Thomas at the Proactive Employer.

On Social Media:
Last week, Jennifer King got my take on employers using social networks to check up on potential job candidates. Jennifer is an HR Analyst who writes about human resources systems for Software Advice, a company that compares and reviews HR software. She writes about trends, best practices, and technology in the HR market. Read the full article, "The Internet Persona: What Recruiters Want to Know About You", on her HR blog.

On Slides:
Last, but not least, it's Brooks Meyer starring in "That 70s Slide Show", featuring Ivy Meyer on the mat and yours truly in his directorial debut. Now, I'm only one SAG card and a few dozen credits behind my cousin.

March 26, 2012

Relax! Businesses don't want employee Facebook passwords.

Chicken LittleBut, if you think they do -- maybe you read this article last week -- then I have a bridge in Brooklyn to sell you, sucker.

Come on! The sky isn't falling. Demanding social media access from employees and potential hires and is most definitely the exception and not the rule. And I'll set the record straight on this bad business practice after the jump...

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March 22, 2012

Court allows plaintiff a quick peek into defendant's Facebook account

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A state court judge in Pennsylvania has come up with a new way to afford litigants access to social media as part of discovery in a pending civil action. Daniel Cummins at Tort Talk has the details:

The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff.

While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.
Anyone desiring a copy of this Order may click here.

Not only did the judge create a new way for party-access to social media accounts, but did you notice that a plaintiff received access to the defendant's social-media account. Not that this is entirely that surprising. Indeed, any information (paper, electronic, even social media) that is likely to lead to the discovery of admissible evidence in a civil action may be fair game during discovery for either side.

In the employment context, corporate-litigants should be mindful that if you press hard for a former employee's social media goodies during employment-related litigation, the plaintiff may just fire back with a few social-media requests.

March 16, 2012

Baseball has a new social media policy. And it may be unlawful.

I'll tell you why, after the jump...

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March 12, 2012

Here's a tip. Don't post Peyton Manning's dinner bill on the 'net.

Peyton ManningBecause it'll cost you your job.

Dale Gibson of The Triangle Business Journal reports here that a waiter at The Angus Barn in Raleigh, NC posted on the internet a copy of Peyton Manning's credit card receipt from a recent dinner there. Manning may not have a job, but he tips like a boss! Not like Mr. Pink. (Go to YouTube and search for "Reservoir Dogs - Tipping Scene" -- you'll find a number of hysterical, albeit completely NSFW videos about tipping etiquette).

Back to Peyton, according to the TBJ article, once the owner of The Angus Barn learned about the check, she quickly fired the waiter. "This goes against every policy we have," said the owner. "It's just horrible."

Well, I don't know about every policy, but certainly the social media policy. Not a bad idea to include in that policy a guideline for employees to refrain from sharing information about customers that the customers themselves would not share with the world -- like patient x-rays, for example.

(h/t Jon Hyman)

March 7, 2012

7 things I learned presenting on social media at #SHRMleg

359/366On Monday I had the privilege of presenting "Social Media for HR: Practical Guidance from a Generation Y Attorney" to a packed house at the SHRM 2012 Employment Law and Legislative Conference in Washingon, DC. I killed (naturally) and the audience of attorneys and HR professionals was fantastic. During the course of this interactive session, some of what the audience had to say really surprised me. And it may surprise you too. Click through to find out what real HR pros are doing to address social media in he workplace...

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March 2, 2012

Will states outlaw demanding online passwords from employees?

A password key?About a year, I wondered whether employers should ever require job applicants to divulge Facebook passwords. Ultimately, I concluded then -- and still believe now -- that while employers may choose to use social media as part of a background-check process, you're playing with fire if you start asking job applicants to divulge social-media passwords to make it easier to vet them.

Two states are now taking steps to make it illegal to force job candidates to reveal online user-names and passwords. One of those states is taking it one step further...

What two states and what they doing?!? (And what's with that creepy image on the right). Aaaaah!!!! Click through to find out...

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February 29, 2012

You can't get Facebook login info based on a smiling profile pic

smileyface.jpgI got this as a Google Alert on Monday. The case is Davids v. Novartis Pharmaceuticals Corp. Allow me to set the stage for you.

  • Plaintiff sues, claiming ongoing suffering from osteonecrosis of the jaw (if you click the link, don't look at the picture on the right. Ewwwww)

  • Defendant corporation realizes that plaintiff has a Facebook account and serves a request for production of Facebook documents.

  • Plaintiff produces only those documents that are available publicly (i.e., those to which access is not otherwise restricted through Facebook privacy controls)

  • Not satisfied with the production, defendant moves to compel plaintiff to turn over her Facebook login information

The basis for the motion?

Defendant argues that Plaintiff's log-in information is discoverable because statements or pictures on her Facebook page relate directly to her claim of ongoing suffering from osteonecrosis of the jaw. Defendant's claim is predicated on Ms. Davids' profile picture, in which Defendant claims she is smiling. Defendant did not inquire about Ms. Davids' social networking activity at her deposition. (my emphasis)

Sounds like someone didn't read my chapter in Think Before You Click. Comparing the situation here to cases from PA,  NY, and another from NY the court denied the motion to compel:

Defendant's argument that Plaintiff smiling in her profile picture on Facebook satisfies its burden in this motion to compel is without merit. Even if Plaintiff is smiling in her profile picture, which is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff's account.

If only the Defendant had laid a better foundation with additional discovery as to the overall scope of what the plaintiff had in her Facebook account, this could have ended differently.