Tag Archives: Facebook

The United States Office of the General Counsel, Division of Operations-Management has Released a Report that Provides Guidance on Workplace Rules Governing Social Media Sites such as Facebook under the National Labor Relations Act

Due to the rapid rise of social media sites involved in the workplace such as Facebook, the United States Office of the General Counsel, Division of Operations-Management has promulgated its third report in the past year regarding workplace rules on using social media technology pursuant to the National Labor Relations Act (NLRA)As this blog has noted before, the use of social media sites in the workplace has expanded creating issues for employers and employees alike.  In an effort to manage these employment issues relating to social media, many employers have implemented rules to control the use of these sites and reduce any potential legal exposure.  This recent report provides guidance on how to structure rules that impact usage of social media sites at work.

Generally, workplace rules regarding social media use cannot restrict or infringe upon activity protected under the NLRA.  Protected activity includes discussions regarding wages and conditions of employment with third parties as well as each other.  The report provides this example as overbroad: “Don’t release confidential, guest, team member or company information.”  An employee could reasonably interpret this rule as preventing a discussion of workplace conditions and is therefore unlawful.  Similarly a policy that prevents employees from discussing any confidential workplace information is unlawful because it prevents employees from engaging in activity protected by the NLRA.  Furthermore a policy working in tandem with the above policy that requires an employee to report that confidential communications were made is unlawful because those confidential communications could regard workplace conditions or wages.  On the other hand, a policy that advises employees to be careful about divulging confidential information is lawful.

In another exemplary policy, the phrase requiring that posts are “completely accurate and not misleading and that they do not reveal non-public information on any public sit” was unlawful.  Discussions regarding workplace conditions and wages are protected and would potentially be restricted under this policy.  Moreover, any policy that forces employees to obtain permission to post any materials is facially unlawful.  Notably, a policy preventing the disclosure of secret or confidential information is lawful as long as it is “to protect the Employer’s legitimate interest in safeguarding its confidential proprietary and privileged information.”

It is also unlawful to restrict or discourage employees from friending each other as it would restrict their protected activity under the NLRA.

The report presents a policy restricting the use of social media in the workplace that is lawful under the NLRA.  In the policy itself, there are examples of acceptable and unacceptable activity to reduce the risk of ambiguity that could restrict NLRA protected activity.   It appears likely that all of the unlawful policies referenced in the report could be remedied through guiding examples that reflect how the policies do not infringe on NLRA protected activity.

If you are an employee and believe your workplace rules regarding social media sites such as Facebook infringe on your protected labor activities or you are an employer seeking guidance on writing your social media guidelines and you would like to speak to an employment attorney, please contact Swartz Swidler, LLC for a free consultation at (856) 685-7420.  You may also contact us through our website.

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New Jersey Law Makers are Considering a Bill to Protect Employee Privacy by Prohibiting Employers from Requiring Disclosure of Usernames and Passwords for Social Networking Sites, including Facebook.

About a month ago we discussed legal concerns regarding employees’ privacy rights on Facebook.   We reviewed such concerns and rights by analyzing such procedures against current New Jersey (NJ) and Pennsylvania employment laws.  We analyzed such legal issues as there is a growing trend of employers requiring employees and prospective employees to reveal passwords and usernames for social networking websites.

As stated in the prior posting, Swartz Swidler, LLC, a law firm focused on New Jersey (NJ) and Pennsylvania (PA) employment law, supports an outright ban on employers requesting social networking passwords from their employees and prospective employees.  We support such a ban not only to support employee privacy concerns, but also because we are very concerned that an employer with such access would be more likely to discriminate against prospective and current employees for reasons which are already illegal under current law, such as on the basis of sexual orientation, medical status, family status, and other personal issues to which an employer should not have the right to seek information about.

New Jersey (NJ) legislatures are now in the process of considering Assembly Bill No. 2878 (“Bill”) that will settle this area of employment law and prevent retaliation or discrimination for failing to provide access to one’s username or password on social networking websites:

This bill prohibits an employer from requiring a current or prospective employee to provide or disclose any user name or password, or in any way provide the employer access to, a personal account or service through an electronic communications device.  An employer is also prohibited from asking a current or prospective employee if he has an account or profile on a social networking website.

Under the Bill, an employer would be prohibited from asking an employee or prospective employee for their username or password to any social networking site.  The employer would even be banned from asking if the employee or prospective employee has an account or profile on such a site.

In addition to prohibiting employers from inquiring about social networking websites, the Bill creates a cause of action akin to a whistleblower claim under the New Jersey (NJ) Conscientious Employee Protection Act (“CEPA”).  The Bill prohibits retaliation or discrimination against someone who “files a complaint pursuant to provisions of the bill;…testifies, assists, or participates in an investigation, proceeding, or action concerning a violation of the bill; or…otherwise opposes a violation of the bill.”  The Bill has therefore ensured that employees are able to assert the rights granted to them in this Bill.

In addition, any employer that violates the Bill could be hit with significant fines for each violation paid to the New Jersey (NJ) Commissioner of Labor and Workforce Development.

Swartz Swidler, LLC a Pennsylvania (PA) and New Jersey (NJ) employment law firm, strongly endorses this Bill.  If you believe you have been discriminated against, unlawfully discharged, denied wages or overtime, or retaliated against, and you would like to speak to an employment attorney, please contact us for a free consultation at (856) 685-7420. You may also contact us through our website.

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New Jersey (NJ) and Pennsylvania (PA) Employment Lawyers discuss Legal Concerns regarding Employee’s Privacy Rights on Facebook

It is probably smart to assume your future employer will Google your name and peek at your Facebook profile.  Recently, however, employers have progressed beyond perusing information readily available on the internet – some have requested the Facebook login information for their applicants, which unlocks private information such as pictures and messages.  This increasingly common practice has sparked intense debate.  Is it Constitutional?  Is it an invasion of privacy?  Does it violate federal or state employment laws?  (New Jersey employment law is highly protective of employee privacy rights).  Does Facebook’s own privacy policy forbid it?  (Facebook says yes and not only opposes the practice, but also encourages its users not to surrender their information).

At the national level, Congressional Republicans recently blocked an amendment banning employers from requesting password information.  Several Senators are now calling for the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”) to investigate the legality of the practice (the EEOC is a federal agency that, among other things, investigates claims of discrimination and harassment in the workplace brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”)).  While progress stalls at the national level, a few states have taken proactive measures.  A piece of legislation entitled the “Social Media Privacy Bill” has passed in the Maryland Senate and is currently under House consideration.  Illinois and Michigan are also considering similar legislation.

Though much of the debate so far has focused on the potential privacy invasion implications for employees, this practice may force employers to face legal exposure for this and other reasons.  It is illegal for employers to base hiring decisions on age, race, national origin, disability, pregnancy, sex, or religion, for example.  (PA employment law provides protections against workplace discrimination similar to those provided by Title VII, the ADA, and the ADEA; NJ employment law provides even broader protections against workplace discrimination).  Accordingly, prudent employers know not to ask interview questions targeted at revealing such information, to avoid an inference being drawn that they used the gathered information in the hiring process.  Well . . . requesting Facebook passwords might very well lead to the same inference being drawn.  Indeed, Facebook itself warns that the practice “potentially exposes the employer who seeks this access to unanticipated legal liability.”

Possible employment law legal traps for employers are easy to imagine.  For instance, suppose an employer has narrowed its applicant pool to two individuals.  One has a better educational background but one is more charismatic.  The employer requests Facebook passwords from both individuals.  The employer then discovers through a congratulatory Facebook post that one of the applicants is pregnant.  The employer might then find itself at a loss.  If it elects to hire the other applicant for whatever reason (even assuming a reason not related to the discovered pregnancy), the employer has, nonetheless, opened itself up to a potential lawsuit for pregnancy discrimination.  An inference could be drawn that the employer considered the pregnancy in making the hiring decision (even if it did not).

Put another way, an employer who learns protected information through Facebook provides a valuable tool for Plaintiffs’ lawyers (such as Swartz Swidler, LLC) to rebut the employer’s anticipated rationale for hiring another applicant.  Thus while the practice of requesting Facebook passwords remains legal (for now at least), an employer may be wise to let this bandwagon pass without attempting to hop on.  Swartz Swidler, LLC, a law firm focused on New Jersey and Pennsylvania employment law, supports an outright ban on employers requesting Facebook passwords from their applicants (and employees).

Should you wish to speak with an attorney experienced in NJ and PA employment law, please contact us for a free consultation.  You can reach us at 877.529.9501, or through our website at www.swartz-legal.com.

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