Second Circuit Upholds NLRB’s Views on Employee Social Media Use

Last year, the National Labor Relations Board held for the first time that “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  For a brief overview of this case, Three D, LLC, see our previous blog post here.

Now, the Second Circuit Court of Appeals has affirmed the Board’s decision. Although the Second Circuit issued its ruling as an unpublished summary order, which means that it does not have precedential effect, employers should not discount the effect that this ruling will have on the Board’s aggressively pro-employee agenda.

Three D argued on appeal that the Board incorrectly ruled that a discussion by a group of employees on Facebook was protected under the NLRA.  Although the discussion ostensibly related to the terms and conditions of employment, because it involved the issue of taxes and wages, the company argued that the employees crossed the line by incorporating obscene and disloyal comments into their discussion.  According to the company, the Board ignored the company’s legitimate interest in preventing the disparagement of its reputation, particularly where the employees’ Facebook discussion was viewable – and was in fact viewed – by customers.

The Second Circuit disagreed, however, finding that almost “all Facebook posts by employees have at least some potential to be viewed by customers” and that, even though customers did see the Facebook discussion at issue, the “discussion was not directed toward customers and did not reflect on the employer’s brand.”  Consequently, the employees’ comments – including the act of “liking” the comments – were protected and precluded the company from disciplining the employees.

The decision raises an important question for employers in the area of social media, which is:  when does an employee’s post “reflect on the employer’s brand?”  Here, even though the employees’ posts referenced the name of the company and alleged it had mismanaged its employees’ taxes, the comments were not found to reflect on the company’s brand.  The Second Circuit’s decision therefore suggests than an employee’s disparaging comments will have to be far more specific before losing protection under the Act, particularly where the comments arguably relate to terms and conditions of employment.  In other words, an employee’s online post does not become unprotected simply because it contains obscenities and is viewed by the company’s customers.  According to the Second Circuit, this conclusion simply reflects “the reality of modern-day social media use.”

New Social Media Privacy Law in Maine

Maine has a new Employee Social Media Privacy law that prohibits employers from requiring employees and job applicants to provide access to their social media accounts. In passing the law, Maine joins at least twenty other states with similar legislation. The new law goes into effect on October 15, 2015.

The Employee Social Media Privacy law follows previous efforts by the Maine Legislature to protect the privacy of social media accounts, which efforts we have summarized here and here. Under the newly enacted law, a social media account is defined as an account with an electronic medium or service through which a user creates, shares, and views user-generated content, including emails, videos, blogs, text messages, and other similar content. Expressly excluded from the definition, however, are social media accounts that are opened at the request of an employer, provided by an employer, or intended for use primarily on behalf of an employer.

In general, the new law prohibits employers from requiring employees and job applicants to provide access to personal social media accounts, and prohibits employers from taking adverse action against an employee or applicant who refuses to provide access. The law also specifically prohibits so-called “shoulder surfing,” or the practice of requiring an employee or applicant to sign into an account in the presence of the employer. In addition, employers may not require employees or applicants to disclose any personal social media account information, add any individuals to the employee’s or applicant’s list of social media contacts, or alter account settings that would affect the ability of third-parties to view the contents of an account. Employers found in violation of the law are subject to fines assessed by the Department of Labor.

The new law does provide some exceptions and does not, for example, apply to information about an employee or applicant that is publicly available, or restrict the ability of an employer to require the disclosure of certain information that the employer reasonably believes to be relevant to an investigation of employee misconduct or workplace violations. The Employee Social Media Privacy law also clarifies that nothing in the law prevents employers from implementing policies governing the use of employer-owned electronic devices and communication systems.

Going forward, employers should review their social media policies to ensure they are consistent with the Employee Social Media Privacy law. In addition, although the new law creates an exception for social media accounts that are created or used at the request of an employer, employers may need to revisit how such accounts are used and clarify the ownership in such accounts. Failure to do so may lead to complications, not only under the Employee Social Media Privacy law, but other privacy-related laws such as the federal Stored Communications Act.

Maine Legislature Considering Privacy in Social Media

Joining a growing trend nationally, the Maine Legislature is considering a bill that would prohibit employers from requiring employees to disclose their log-in information for social media and personal e-mail accounts. The bill, L.D. 1194, An Act to Protect Social Media Privacy in School and the Workplace, is currently being considered by the Judiciary Committee and has been the subject of several work sessions since the beginning of the year.  In a recent work session, the Committee recommended that the Legislature create a commission to study privacy issues further, rather than enact the bill as drafted.  The exact fate of the bill, however, remains to be seen.

Ten states have already passed legislation similar to Maine’s L.D. 1194, including Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington.  Meanwhile, in 2014, similar legislation is currently pending in twenty-five other states, including California, Florida, Massachusetts, New Hampshire, New York and Rhode Island.  This flurry of legislation at the state level follows failed efforts at the federal level, where several social media privacy bills have been introduced but not passed.

Employers should we aware, however, that even if requesting password information from employees is not strictly prohibited, making these kinds of requests can still be risky.  By gaining access to places where employees reveal personal information about themselves, employers may stumble upon information that is protected by other laws, including state and federal anti-discrimination laws.  Employers should therefore proceed with caution in this area.