The use of social media has expanded significantly in recent years. Indeed, one would be hard-pressed to identify a person under 65 who doesn’t have a Facebook, LinkedIn or Twitter account that he or she logs into several times a week, if not each day. Given this, employers increasingly are faced with thorny issues related to employee use of social media both inside and outside of the workplace. Many employers have smartly instituted formal policies addressing employees’ use of social media during the workday. Employers also have sought to monitor and limit their employees’ and prospective employees’ online communications both during and after work hours, to varying results. While it is undisputed that an employer may lawfully limit its employees’ use of social media during the workday, the issues become more complicated when an employer seeks to monitor or even limit what employees and prospective employees say and do online and when an employer demands to see employees’ and applicants’ private online messages and posts. This article discusses some recent developments involving this intersection of social media and the workplace, including (1) recent decisions by the National Labor Relations Board addressing the validity of employer policies governing employees’ use of social media and (2) legislation and proposed legislation prohibiting an employer from requiring applicants or employees to provide passwords to their personal social media accounts.
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