Legal issues concerning employee use of social media are on the rise. Issues vary from whether employees were wrongfully terminated for using Facebook or Twitter at work to whether employers can make employees share their social media passwords. Though there is still a lot of ambiguity regarding employee rights and social media, state legislatures and federal agencies have set guidelines that can help employees determine what to post (or not to post), and direct employers on how to draft and enforce their social media policies.
Some employers have asked employees to turn over their username or passwords for their personal accounts. Understandably, employees challenged such requirements, viewing them as an invasion of privacy. In 2012, California enacted legislation prohibiting private employers from requesting or requiring an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, or discharging or retaliating against employees or applicant for not complying with a request or demand that violates these provisions. There is also legislation in California that protects students from being forced to disclose a user name or password for a personal social media account.
Currently, the California legislature is seeking to expand employee protections by applying the existing prohibitions to public employers.
There are also federal protections for both employees and employers concerning social media. The National Labor Relations Board is an independent federal agency that enforces the National Labor Relations Act (NLRA). The NLRA protects the rights of employees to act together to address conditions at work. This protection extends to certain work-related conversations conducted on social media. The NLRA’s decisions involving disciple for social media postings are important because they establish precedent.
NLRA decisions regarding social media generally examine whether an employee was wrongfully terminated for a posting made on social media. If an employee was fired solely for photos or comments not related to their employment, their post will likely be found not protected, and the firing legitimate. However, postings about a coworker who intended to complain to management about their work performance were considered protected activity.
It is critical for both employees and employers to know their rights and protections regarding social media. State legislation and federal guidance are sure to expand and provide more distinguished guidelines, but a fine line between privacy and free speech rights is likely to remain.