Beginning in 2015, employers in Tennessee cannot request or require access to social networking or electronic accounts of applicants or employees. The law, called the “Employee Online Privacy Protection Act of 2014,” was passed in this year’s legislative session and becomes effective on January 1.
There are some important exceptions. Under the Act, an employer may:
- request or require log-in information (username or password) to access an electronic device provided by or paid for (in whole or in part) by the employer;
- request or require log-in information (username or password) to access an electronic account or service obtained because of the employment or used for the employer’s business purposes;
- monitor, review, access, or block data that resides on an electronic device provided by or paid for (in whole or in part) by the employer or data that is stored on the employer’s network (provided that it complies with applicable federal and state laws); or
- obtain, access, or view electronic information about an applicant or employee that is in the public domain or that can be accessed without violating the restrictions placed by the Act.
Even though the NLRB is currently under fire and courts are striking down its rulings made after the recess appointments, it may still be useful to consider the rulings related to employment policies. The NLRB was very active last year reviewing policies from employee handbooks. Many of these policies had been utilized without question by employers for years. The basis for the scrutiny has been that some of these policies interfere with rights to protected concerted activity under Section 7 of the NLRA. These considerations are important because Section 7 does not apply merely to union workplaces.
Section 7 of the NLRA, in effect since 1935, offers employees the right to engage in protected concerted activity for their mutual aid or protection concerning the terms and conditions of their employment. An employee may prove a violation by establishing:
- Employees would reasonably construe the language to prohibit protected activity;
- The rule was created in response to union activity; or
- The rule has been applied to restrict the exercise of protected rights.
In 2012, the NLRB called these types of policies into question:
- Confidentiality Policy;
- At-Will Policy;
- Policy impacting use of Social Media
- Policy restricting Negative or Adverse Comments.
My next post will discuss the issues raised about these four categories of policies.
Much of HR is focused on staying out of the courtroom. However, there are times that employment issues end up there. Just as use of social media has become a big issue for employers, it is becoming more and more of a problem for courts.
A new model instruction has been proposed by the Judicial Conference Committee on Court Administration and Case Management. It reads in part:
I know that many of you use cell phones, BlackBerrys, the Internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, BlackBerry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here.
A full copy of the instruction can be found here: Proposed Model Jury Instructions; The Use of Electronic Technology to Conduct Research on or Communicate about a Case.
New Wilson Worley Employment Newsletter on NLRB Stance on Social Media and EEOC Position Related to Education Requirement and ADA
For the most recent employment newsletter by Sam Booher of the Wilson Worley Employment Section, click here. He outlines the NLRB’s softening of its position on whether social media use is a protected activity. He also outlines that the EEOC has opined that a blanket requirement of a high school diploma may violate the Americans with Disabilities Act. Our employment attorneys provide monthly newsletter updates.
Come on, everyone’s doing it. Our society now communicates in fundamentally different ways than it did in the past. Because of the explosion of social media, employers must consider the implications for their business, workplace, and employees. Social media is an issue that cuts across all industries and all size businesses. Do you know what people are saying about your company, its practices, its employees, or its customers? Some of those may be “your people” talking.
There is a whole new field of potential liability from the use of Facebook, Twitter, and other media. And now, it is much easier to verify what was said, when, and to whom—and how far the information was passed. There are PR risks along with the possibility of wide dissemination of confidential information that belongs to you or your clients. Potential harassment or discrimination may be documented too. And it may be happening in your workplace—or at an employee’s home, or even in a coffee shop.
Drafting a policy that explains your company’s expectations for the use of social media by employees has become necessary. Obviously, a lot of use won’t be about the company and there are be protections for some speech under federal or state law, but organizations can and should still address usage, disclosure of information, and disparaging statements.
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