Does Your Employer “Like” Your Social Media Presence?

By: Fatima Guillen-Walsh

The world is changing, and technology is taking over; a person’s social media presence is now under scrutiny during hiring decisions. Employers are not only searching for your Facebook profiles, but are asking for your passwords to see all available material.[1] Are they allowed to do this? The very lawyerly answer to this problem: it depends. Several states have actually passed laws against these kind of questions and searches.[2] In May 2015, Connecticut became the 21st state to enact a social media privacy law.[3] In absence of a binding federal law, employers in these states must comply.[4] Thus, in these states, employers are precluded from asking potential employees to disclose social media passwords.[5] But, don’t celebrate yet employees! Many of the states have not jumped on this bandwagon.[6] If your social media profile is public, you might want to make sure there’s nothing on it that you wouldn’t want a potential employer to view. Employers are not breaking any laws by searching your name in Google.

What about the people that are already employed? In the 2009 New Jersey decision, Pietrylo v. Hillstone Rest. Group, the employer viewed the employees’ internet discussion group as critical and wanted an employee’s individual password.[7] The employer’s motion was ultimately denied because the employer’s access was unauthorized and the managers continued to access the site, knowing it was restricted.[8] While the jury did find that the employer did violate employee rights, employer was found not to have invaded employees’ privacy.[9] Instead, they found that employer had violated New Jersey law and federal law, Stored Communications Act.[10] The Stored Communications Act, extremely similar to the New Jersey statute, focuses on unlawful access to stored communication.[11] Both pieces of legislation discuss that in order to be in violation, there needs to be intentional, unauthorized access to any electronic storage. [12] Clearly, in Pietrylo, the jury believed social media pages like MySpace fell into this definition.[13]

Similarly, over the last few years, the National Labor Relations Board (“NLRB”) has heard cases dealing with postings on social media, and whether employers could use it as evidence to fire their employees.[14] Back in May of 2011, the NLRB filed a complaint against a non-profit agency, the Hispanics United of Buffalo, Inc., which led to a three-day trial.[15] This procedure was rare considering most NLRB complaints had been previously settled confidentially when it dealt with an employer’s social media policies.[16] However, on September 6, 2011, it was decided that the agency violated the National Labor Relations Act (“NRLA”) by firing employees discussing their jobs, managers, and clients on their Facebook pages after working hours.[17] The Administrative Law Judge (“ALJ”) presiding over the case explained “criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected.”[18] The NLRA states that:

[Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act [subchapter], if such expression contains no threat of reprisal or force or promise of benefit.[19]

In the above case, the ALJ reasoned that this was not threatening to the employer and therefore should be protected.[20]

Based on these recent decisions, the National Law Review urges employers to pay attention to potential new NLRB pushes for employee protection regarding social media.[21] In order to avoid violating the NLRA, employers should only discipline employees for serious online discussions of work that could pose a threat to the employer, or in some other way require employee information.[22] Employers should be aware of these topics and know where their individual rights are being violated.

[1] Leonard V. Feigel, More Facebook Issues: This Time, It’s the Stored Communications Act, labor & employment law perspectives: social media (Sept. 9, 2013), https://www.laboremploymentperspectives.com/2013/09/09/more-facebook-issues-this-time-its-the-stored-communications-act/.

[2] Id.

[3] Ben Dipietro, Laws Try to Resolve Employer-Employee Social Media Conflicts, Risk & Compliance Journal (May 28, 2015), http://blogs.wsj.com/riskandcompliance/2015/05/28/laws-try-to-resolve-employer-employee-social-media-conflicts/.

[4] Id.

[5] Id.

[6] See id.

[7] Pietrylo v. Hillstone Rest. Group, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009).

[8] Id.

[9] Id.

[10] Id. and NJ Stat. Ann. §2A:156A-27

[11] 18 U.S.C. Chapter 121 §§ 2701–2712, see also N.J Stat. Ann. §2A:156A-27.

[12] Id.

[13] Pietrylo v. Hillstone Rest. Group, 2009 U.S. Dist. LEXIS 88702 (D.N.J. Sept. 25, 2009).

[14] Laura M. Lawless Robertson, NLRB Judge Issues First Ever Ruling in Social Media Line of Cases, Nat’l L. Rev., Sept. 9, 2011, http://www.natlawreview.com/article/nlrb-judge-issues-first-ever-ruling-social-media-line-cases.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] 29 U.S.C. § 158. This section of the NLRA discusses unfair labor practices, and devotes a section specifically to unfair practices by employers. Id.

[20] See id.

[21] Laura M. Lawless Robertson, NLRB Judge Issues First Ever Ruling in Social Media Line of Cases, NAT’L L. REV., Sept. 9, 2011, http://www.natlawreview.com/article/nlrb-judge-issues-first-ever-ruling-social-media-line-cases.

[22] Id.

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