11.4.19

Every company has faced challenges related to the social media presence of, or use by, prospective and current employees. This includes questions about off-duty conduct that spills over into the workplace, posting about terms and conditions of employment, “too much information” about medical conditions, and posts that become evidence in harassment or discrimination lawsuits.

Despite these concerns, we currently have a patchwork of laws that has left many employers with questions about what they can and cannot require from employees in the social media realm.

Federal law

Although federal law does not regulate social media use by employees in the private sector, various federal agencies have issued guidance when social media practices have an effect on existing federal employment laws. For example, the Equal Employment Opportunity Commission has said that it is unlawful for an employer to use social media information to discriminate in violation of Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, or the Genetic Information Nondiscrimination Act. The EEOC also found cause recently in cases where Facebook algorithms prevented older users from being able to see employers’ help-wanted advertisements.

The National Labor Relations Board under the Obama Administration took the position that social media posts about terms and conditions of employment – even something as trivial as a “like” – may be protected concerted activity under Section 7 of the National Labor Relations Act. Although the current NLRB is expected to take a more employer-friendly position on this and other issues, employers still need to be cautious.

State law

More than half the states have laws related to social media, including Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Maine, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin. The scope and content of these laws vary.

Most state social media laws protect both current employees and applicants, though New Mexico’s law as written protects only prospective employees. It is generally unlawful for employers to request or require access to a current or prospective employee’s personal social media account or profile.  More specifically, the laws can prohibit employers from requesting or requiring that current or prospective employees

  • Disclose personal social media usernames or passwords.
  • Add or “friend” the company, an employee, supervisor, or administrator, or join a particular group on social media.
  • Divulge information from the individual’s personal social media account.
  • Change personal social media privacy settings.
  • Access their own social media accounts in the presence of the employer.

Additionally, most state social media laws prohibit retaliation against individuals for exercising their rights under the applicable laws.

Of course, many of these statutes have their own idiosyncrasies. For example, New Mexico and West Virginia do not have explicit anti-retaliation provisions. In other states, including New Hampshire and Vermont, the anti-retaliation provisions appear to apply only to current employees. Nebraska and New Jersey, and possibly others, make it unlawful for an employer to request waivers or limits on protections under the laws.

Employer rights

Although the existing state laws are principally designed to protect current and prospective employees’ personal social media accounts, many of the statutes also acknowledge that employers also have some protectable social media rights. Thus, many of the state statutes do not apply to

  • Social media accounts associated with the employer (as opposed to personal accounts).
  • Access to electronic communication devices provided or paid for by the employer.
  • The ability of an employer to monitor, access, or view data stored on an employer’s network or on a device provided or paid for by the employer.
  • The ability of an employer to investigate certain misconduct, provided that the employee’s social media activity is reasonably believed to be relevant.
  • The ability of an employer to view publicly available information.
  • The employer’s inadvertent receipt of prohibited information.
  • The employer’s proprietary, confidential, and financial data.

Because the requirements and exceptions vary by state, employers should review the social media laws enacted in the states in which they operate to determine their duties and rights.

What should employers do?

As social media use continues to grow and legal restrictions on employers’ use and control of social media increase, employers should take the following steps:

Educate yourself. As mentioned above, become familiar with the social media laws in the states in which you operate. Make sure you understand any exceptions that apply, as well as the potential penalties. Also ensure that you are not using social media in a way that violates federal laws governing the employment relationship, including equal employment opportunity, labor relations, workplace safety, or wage and hour laws.

Review your policies. Regularly review and update internet use and social media policies to ensure that they are compliant with applicable law, with the assistance of your employment counsel if needed. Among other things, make sure that your policies put employees on notice regarding when they can expect privacy and when they cannot.

Provide training. At a minimum, all employees in charge of the company’s social media accounts, hiring, and internal investigations should be trained about applicable law and your company’s policies.

Being proactive in this area of the law will go a long way toward ensuring that both you and your employees understand the conduct that is expected and acceptable in the digital realm.

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