The Impact of Recent Social Media Developments on Employers

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.

Employers should be aware that employment policies that limit or restrict what employees say or do online may run afoul of Section 7 of the National Labor Relations Act, which guarantees both union and non-union employees the right to engage in "concerted activities" for their "mutual aid or protection." The NLRB has recently issued three decisions outlining some of these concerns. On September 7, 2012, the NLRB in Costco Wholesale and United Food and Commercial Workers Union, Local 371, Case 34-CA-012421, held that Costco’s social media policy, which provided that employees could be disciplined for statements posted electronically that damaged the company or any person’s reputation, violated the NLRA. The Costco policy stated that its employees’ online statements "that damage the company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco employee agreement, may be subject to discipline, up to and including termination of employment." The NLRB held that the policy’s broad prohibition of such statements by its employees encompassed communications protected by Section 7 of the NLRA, such as concerted communications protesting the employer’s treatment of its employees, and that Costco employees therefore reasonably could conclude that the policy required them to refrain from engaging in such protected communications. The NLRB also noted that there was nothing in the Costco policy that suggested communications protected by Section 7 were excluded from the scope of the social media policy or that otherwise restricted application of the policy. Ultimately, the NLRB required Costco to rescind or modify its employee handbook to the extent that it prohibited employees from making statements online that damage the company or damage any person’s reputation.