Adria Richards is a self-described “endlessly enthusiastic technology evangelist.” While attending a large technology conference in Santa Clara, California, Ms. Richards overheard two men sitting behind her making a series of crude, sexually inappropriate jokes (click here for a link to Ms. Richards’ blog entry titled Forking and Dongle Jokes Don’t Belong at a Tech Conference). She tweeted “not cool,” and asked for help in talking with the offending men. The conference sponsors agreed with her, and spoke with the men. One of the men took to Twitter on Ms. Richards’ behalf, tweeting that she "had every right to report me to [conference] staff, and I defend her position.”
In October 2012, we told you about the case of Eagle v. Edcomm, Inc. pertaining to whether an employee’s LinkedIn account belongs to the employee (Linda Eagle) or to her employer (Edcomm). At that time, the United States District Court for the District of Pennsylvania dismissed Ms. Eagle’s claims under the Computer Fraud and Abuse Act, as well as her other federal law claims. Her state law claims, for unauthorized use of name, invasion of privacy, misappropriation of publicity, among other claims, were not dismissed. You can read more about that case here, or hear it discussed at this link.
Employment lawyers anticipate that employers’ social media policies and their use of independent contractors will be hot button issues in the New Year, much like they were in 2012. Recently Mintz Levin’s Mitch Danzig spoke about social media, independent contractors, and the law with George Chamberlin, executive editor of the Daily Transcript in San Diego, CA. The video of their conversation also recaps the Daily Transcript’s Employment Law Roundtable.
The National Labor Relations Board’s closed out an already busy year addressing social media’s impact on employee rights in non-unionized workplaces (see our prior related blog entries here, here, here, and here) with yet another social media ruling – this time involving Facebook. On December 14, 2012, in the matter of Hispanics United of Buffalo, Inc. and Carlos Ortiz, the NLRB held that employees’ Facebook comments about another employee’s criticism of their job performance were protected concerted activity under Section 7 of the National Labor Relations Act. Therefore, the Board held, the employer violated Section 8 of the NLRA when it terminated the employees for the bullying tone of their Facebook comments.
The NLRB has again weighed in on workplace social media policies. And, consistent with its recent decisions in Costco Wholesale Corp. and Karl Knauz Motors, Inc., found DISH Network’s social media policy unlawful. Specifically, citing both cases, the Board found that DISH Network’s social media policy improperly banned employees from making “disparaging or defamatory comments about DISH Network.” The Board further found that the policy’s ban on negative electronic activities during “Company time” was unlawful because it failed to convey that negative discussion can occur during breaks and other non-working hours.
Following up on our post on the subject, I had the chance to speak with Colin O'Keefe of LXBN regarding Eagle v. Edcomm, where a departing CEO had her LinkedIn account taken over by her employer. In the interview we discuss the background of the case and what employers should do in situations like this.
What a year it’s been for the National Labor Relations Board! Under the guise of preserving workers’ rights under Section 7 of the National Labor Relations Act, which includes the broad right “to engage in [ ] concerted activities for the purpose collective bargaining or other mutual aid or protection,” the NLRB has:
• Invalidated a policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation” was overly broad, in that it would “reasonably tend to chill employees” in the exercise of their Section 7 rights to protest working conditions (read more);
• Found that a company’s blanket policy of requesting participants in an internal investigation to keep the investigation confidential improperly infringes on employees’ Section 7 rights (read more);
• Otherwise sought to expand its considerable influence over both unionized and non-unionized workplaces (read more).
In PhoneDog v. Kravitz, an employer and former employee battled over who owns a company-sponsored Twitter account (read about it here and here). Now, LinkedIn joins Twitter, as an employer tries to claim title to the LinkedIn account of a former employee.
Online and Off-Limits: New California Legislation Prohibits Employers from Requiring Access to Social Media Accounts of Employees
We have written here about the practice of some employers to ask applicants for their Facebook login and password information, so they can have a “look around” as part of the interview process, and about Facebook's position on such requests.
My colleagues over at the Privacy and Security Matters Blog have weighed in, with an analysis of a new California la prohibiting employers from requesting or requiring access to social media accounts. For more information, click here.
There is no denying that the NLRB has recently devoted significant attention to employee’s use of social media. Since August 2011, the Board's Acting General Counsel, Lafe Solomon, issued three reports outlining his view of how the NLRA applies to employers’ social media policies and employees’ social media postings. Click here and here for our commentary on those GC reports and for links to the reports themselves. Until earlier this month, however, the Board itself had not weighed in on social media policies.
On May 30, 2012, the National Labor Relations Board (NLRB or the Board) Acting General Counsel issued a press release announcing publication of its report on social media, in which it examined seven cases involving policies governing the use of social media by employees. For information pertaining to the earlier two reports, click here.
We recently wrote about the practice of some employers to ask applicants for their Facebook login and password information, so they can have a “look around” as part of the interview process. Facebook had the following to say in a blog entry posted on March 23:
In recent months, we've seen a distressing increase in repors of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. This practice dermines the privacy expectations and the security of both the user and the user's friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.
For the full Facebook blog posting, click here.
News outlets are all a-twitter about the practice of some employers to ask applicants for their Facebook login and password information, so they can have a “look around” as part of the interview process. Click here and here for here, for sample stories. The ACLU has weighed in, with the following statement:
It’s an invasion of privacy for private employers to insist on looking at people’s private Facebook pages as a condition of employment or consideration in an application process. People are entitled to their private lives. You’d be appalled if your employer insisted on opening up your postal mail to see if there was anything of interest inside. It’s equally out of bounds for an employer to go on a fishing expedition through a person’s private social media account.
On January 5, we posted a blog entry about the case of PhoneDog v. Kravitz, pending in the United States District Court for the Northern District of California. In short, during his employment with PhoneDog, Kravitz used a PhoneDog twitter account (@PhoneDog_Noah) to disseminate information on behalf of the company and to promote its services. After Kravitz left PhoneDog, he continued tweeting under the PhoneDog twitter handle on behalf of his new employer. Although he later changed the handle to omit reference to PhoneDog (@noahkravitz), he kept the 17,000 twitter account followers.
NRLB Report: Employers' Social Media Policies Must be Narrow, Must not Restrict Right to Engage in Protected Activities
The National Labor Relations Board (NLRB or the “Board”) released a report providing important guidance to employers on drafting social media policies that comply with its interpretation of labor laws. The report draws on several recent cases addressing employer policies limiting the use of social media by employees, and builds on a similar report issued last fall.
According to a press release issued by the Board, the report underscores two main points:
These days, many employers sponsor social media accounts, whether on LinkedIn, Facebook, Twitter, or other social media sites. Of course, the “company” itself cannot post to an account, so the task always falls on one or more employees to post entries and monitor the accounts. But, what happens when an employee who is tasked with managing the company’s social media presence resigns or is fired? In other words, who “owns” the accounts?
Social Network Warning - Employers Should Use Caution in Disciplining Employees for On-line Statements
My colleagues Drew and Tyrone just published an alert relating to the always-interesting topic of employees use of social media, and the risks to employers who discipline employees for posting statements relating to the conditions of their workplace. You can read the entire alert here.
Should Your Social Media and Business Systems Policy Prohibit or Limit Fantasy Football in the Workplace?
ARE YOU READY FOR SOME FOOTBALL? For most, the answer to that question may be a resounding “yes!” Last Sunday, people across the country tuned in to watch their favorite teams begin their quest to reach the Super Bowl (although, for some of us, see: NY Giants’ fans, that quest has already ended). And then, come Monday morning, millions of employees- from those occupying the boardroom to the mailroom, men and women alike- gathered around the water cooler, stopped by each other’s offices, and e-mailed or IM’d friends and co-workers to discuss their fantasy football teams.