Social Media use is prevalent and will undoubtedly continue to remain a staple in our society for years to come. Improvements in technology have made access easier which has helped to create a culture where people are engaging in the use of social media anytime and from almost anywhere. But what does this mean for employers? Is an employer permitted to access employee social media accounts? Can the content of employee social media conversations be restricted? Can the use of social media be banned or limited in the workplace?
This is a developing area of law and the proper balance between employer rights and employee privacy is still being defined. The landscape is vast and employers wishing to create policies with respect to social media (which is highly recommended) need to look to both federal and state laws to ensure that they are in compliance.
On December 1, 2013 New Jersey joined a growing number of states that have enacted a social media password protection law. Under the new law, employers are not permitted to request usernames or passwords for personal employee or prospective employee social media accounts. Retaliation against an individual who refuses to provide this information or who discloses that a violation of the law has occurred is strictly prohibited. Violators are subject to fines. However, that is only one piece of the puzzle. Penalties for similar conduct may be much greater under other laws such as the Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq. Employers should seek to avoid engaging in this type of conduct at all costs.
It should be noted that employers do not always need passwords to access employee social media accounts. If an employee’s privacy protections are set to allow for public viewing of his or her account, an employer is not prohibited from viewing the content (but the employer should be mindful of potential claims that it used information it obtained in this manner to violate anti-discrimination laws). Using alternate means to gain access to an otherwise private account is not permissible. However, this does not prevent an employer from seeing the content of a private account that is offered to it by an “intended viewer” of the account with lawful access (i.e. another employee who is an online “friend” of the employee in question). The District Court of New Jersey recently held that viewing private employee social media postings that are provided to an employer by someone with authorized access to the information does not violate the Stored Communications Act (“SCA”) 18 U.S.C. § 2701, et seq., which bars the unauthorized disclosure of electronic communications. Ehling v. Monmouth-Ocean Hospital Service Corp.WL 4436539 (D.N.J. Aug. 20. 2013). However, an employer should not solicit this information from the “intended viewer” or have a policy which requires or encourages such behavior.
Also of concern is how much input an employer has over the content of employee social media postings. The National Labor Relations Board (the “NLRB”) has taken a very broad interpretation of Section 7 of the National Labor Relations Act (the “Act”), 29 U.S.C. § 151, et seq., when it comes to social media restrictions. Section 7 prohibits any policy that restricts employees from discussing the “terms and conditions” of their employment. The NLRB has taken the position that policies that prohibit employees from posting anything “offensive” or from posting “confidential information,” without further clarification, are too broad and ambiguous. To avoid being found in violation of the Act, employers are advised to ensure that any social media policy is crafted utilizing very descriptive terminology that makes clear that the conduct being prohibited does not include any of the conduct protected under Section 7. It is also prudent for an employer to include a very specific “savings clause” in any social media policy which makes clear that the policy is not intended to violate any protections granted under Section 7. The savings clause should make specific reference to the protected conduct and should provide definitions of ambiguous terminology.
So what can employers prohibit? At the current time, an employer social media policy can prohibit the use of social media in the workplace during work hours and can prohibit the use of employer supplied equipment to access social media. An employer can also prohibit an employee from posting anything on social media in the name of, or on behalf of, the employer. Content that constitutes discrimination or harassment of a co-worker can also be restricted. The NLRB has published guidelines on the permissible scope of social media policies. These guidelines should be reviewed and incorporated into any employer’s policy.
Having a social media policy is becoming more and more important for all employers as a means of protecting themselves. However, given the complexity of the laws surrounding social media it is strongly advised that you have an employment attorney assist you with the drafting of a social media policy. With all of the recent changes in the law, it is also strongly recommended that existing policies be reviewed by counsel and that a periodic review is scheduled to ensure continued compliance.