Date: April 2012
As the use of social media and communicating via social networking has become more pervasive in our society, nearly every company, no matter how large or small, must eventually grapple with employee use of social networks, with the objective of balancing employee privacy with company interests.
In support of that objective, some employers have started asking prospective employees for their log-in credentials for their social media accounts (see “Job Seekers Getting Asked for Facebook Passwords,” USA Today, March 21, 2012).
Legal Obstacles. Unfortunately for employers who engage in this practice, they run the risk of violating federal laws, including the Stored Communications Act. (The Act, passed in 1986, addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers.)
Moreover, one of the pillars of social media, Facebook, takes the position that its terms of service prohibit users from sharing their passwords and has indicated it will pursue legal action against employers who require employees or prospective employees to provide their passwords.
To further complicate matters for employers, U.S. Senators Richard Blumenthal and Charles Schumer have asked the U.S. Department of Justice and the Equal Employment Opportunity Commission to investigate the practice, noting that employers who do so may have access to information that is off-limits in making employment decisions.
Practical Considerations. Beyond the legal concerns, requiring employees to share their social media credentials can lead to practical human resource problems, as the coercive tactic arguably violates employees’ privacy rights and can cause employee disengagement and discontent.
However, at the same time, employers have a legitimate interest in their employees’ online activities, because employees may identify themselves as working for the company and discuss the company online. To address these issues, many employers promulgate policies to clearly communicate company guidelines for employees when it comes to the use of social media. These become a part of the employee handbook.
Sounds simple, right? Not so fast.
NLRB Scrutiny. Social networking policies have recently come under scrutiny by the National Labor Relations Board (NLRB), which has issued guidance about these emerging issues and what constitutes a lawful social media policy. The NLRB wants employers to understand that policies should not be overly broad, and that social media policies that are too sweeping in scope may impact employee rights. Specifically, the NLRB is concerned about the right of employees under federal labor law to discuss wages, hours or other working conditions with each other. The Board has concluded that employee discussions of these issues on Facebook and other social networking sites may be protected under federal labor law.
Many employers respond by saying that NLRB guidance doesn’t apply to them because their company is not unionized. However, the National Labor Relations Act, which is administered by the NLRB, applies to most employers, even if the company, like most private U.S. companies, does not have union workers.
To help employers avoid legal, regulatory and employee relations pitfalls associated with social networking policies, here are a few suggestions for what should and should not appear in your company’s employee manual and social networking guidelines:
- prohibit employees from posting statements on social media that violate the company’s non-discrimination and anti-harassment policies;
- bar employees from making untrue statements about the company;
- limit employees’ use of their personal social media accounts while at work;
- communicate to employees that what they say about the company may impact the company;
- require employees to respect the confidentiality of the company and fellow employees;
- be specific and provide examples about activities that are against company policy.
Employers should steer clear of:
- asking employees for the passwords to their personal social media accounts;
- obtaining unauthorized access to employees’ social media accounts;
- making vague statements in their policies, such as statements that “inappropriate” posts are prohibited;
- prohibiting employees from discussing wages, hours or working conditions through their social networks.
- Company policies should also include language making clear that the policy is not intended to restrict any employee rights under federal or state labor laws.
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