In the first post of this series on the debate over employers asking employees and applicants for social media passwords, we covered how two Senators have asked the Equal Employment Opportunity Commission and Department of Justice to investigate the reported phenomenon and how a bill prohibiting the practice failed in the House of Representatives. Although that piece of legislation failed, similar bills are being considered and passing at the state level. In this post, we’ll look at what state legislators are doing about employers that demand social media passwords.

So far, legislation to limit or bar password requests has been considered or passed in California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, and Washington. The proposals largely forbid employers from asking applicants or employees for passwords, and some forbid penalizing those who complain about the practice or refuse to give out passwords. Some cover e-mail as well as social media passwords.

Here is a look at what some of our Employers Counsel Network attorneys have to say about the developments in their states: read more…

In a previous blog post, I wrote about reported accounts of employers asking applicants for Facebook passwords. After the initial AP article that inspired that post came out,  there were questions of how many employers actually engaged in the practice (but not the readers of this blog, right?).

Still, the media and legislatures have taken the issue and run, so much so that I thought the topic should be revisited. This week, we’ll look at what legislators are doing about the issue at the federal and state level as well as what you should be doing about it as an employer. First up, we go to Washington, D.C. read more…

This week there have been several articles floating around about the practice of employers asking applicants for their Facebook passwords as part of the interview process. The AP report that seem to start this wave of articles (click here) tells the story of one hopeful job seeker who withdrew his application mid-interview when the interviewer turned to her computer and asked for his Facebook log-in information.

After reading the article, I knew it would be a great topic for a blog post here. I mulled it over for a few days and decided that instead of writing about how legally dangerous this practice is (what happens when you log in to applicants’ Facebook page and find out they are in a protected category?)  I would focus on my gut reaction as an employee to the practice.

For the past few years, the job market has undoubtedly skewed in the favor of employers. Times have been tough, and as one applicant interviewed for the AP story told the reporters about giving up his Facebook password to interviewers, “I needed my job to feed my family. I had to.”  But as the economy improves and the best employees start to look for greener pastures, you are sending a bad message when you ask applicants for their Facebook passwords.

What asking for a Facebook password from an applicants says about working for your company: read more…

By Tammy Binford

Yesterday, we wrote about the new report issued by National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon. Included in the Operations Management Memo, Solomon’s report explains his reasoning in 14 recent decisions on cases involving social media. Of those 14 cases, the employer’s social media policy was found to be lawful and needing no revisions in only one instance. Today, we offer a closer look at the case in which the employer got it right according to the NLRB.

The employer was a drugstore operator, and the policy requested employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. The report states that the employer’s policy “prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media ‘embargoed information,’ such as launch and release dates and pending reorganizations.”

The Board found that “although the requirement to confine social networking communications to matters unrelated to the company could be construed to restrict employees from communicating regarding their terms and conditions of employment, we found that, in its context, employees reasonably would interpret the rule to address only those communications that could implicate security regulations.”

“Similarly, we found that the prohibition on disclosing confidential and/or proprietary information acquired in the course of employment was not overbroad,” the report states.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online

The NLRB statement says Solomon’s report represents his interpretation of the National Labor Relations Act as it applies to forms of communication that didn’t exist when the law was written. In Solomon’s memo accompanying the new report, he said social media issues and their treatment by the NLRB “continue to be a ‘hot topic’ among practitioners, human resource professionals, the media, and the public.”

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications. In addition, she writes for HR Hero Line and Diversity Insight, two of the ezines and blogs found on HRHero.com.

Do you know you need to do something about your social media policy but don’t know where to start? The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.

The National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon has released a report detailing social media cases his office has reviewed. The report — a a follow up to the first report concerning social media in the workplace, which was released August 18,2011 — details decisions in 14 cases reviewed by Solomon’s office.

Those 14 cases include:

• five cases in which the employer’s social media policy were found to be overly broad;
• one case in which the employer’s social media policy was found to be lawful;
• one case in which the employer’s social media policy was found to lawful after it was revised;
• one case in which an employee’s discharge was upheld because the employee’s post wasn’t work-related;
• and several cases in which employee terminations were found to be unlawful because the termination decisions came from unlawful policies.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online

The report notes that “these cases are extremely fact-specific,” but that two “main” points from the first report are reaffirmed in this new report:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Do you know you need to do something about your social media policy but don’t know where to start? The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.

The U.S. Department of Labor (DOL) has announced it is teaming up with Facebook, the National Association of State Workforce Agencies, DirectEmployers Association, and the National Association of Colleges and Employers to provide resources to job seekers through the use of social networks.  “Linking American job seekers with the resources they need to get back to work is a top priority of the Obama administration and my department,” said Secretary Solis. “By leveraging the power of the social Web, this initiative will provide immediate, meaningful and ready-to-use information for job seekers and employers, and a modern platform to better connect them.” read more…

In the first post of a two-part series, employment law attorney Robert L. Bailey examines how technology enables employers (and anyone else) to track what others are doing on the Web and if that is even a good idea.

If a gadget uses electricity, chances are pretty good that it has a greater role to play than you might think in helping — or possibly hurting — your interests as an employer. Monitoring your employees’ use of workplace computers is an obvious starting place. But people also leave electronic footprints on the Internet — in and out of the office. Our five billion cell phones allow us to make phone calls, but they also function as portable audio and video recorders and players, cameras, hard drives, Internet browsers, e-mail boxes, WiFi routers, and GPS units.

Security cameras, ID badges, radio frequency identification tags — even toll-road payment and vehicle traffic surveillance systems — can track the location of assets and people. Printers, fax machines, copiers, and scanners that read and print out documents also contain computers that generate and record metadata about who used them and when, and hard drives retain permanent — and retrievable — images of those documents.

So what’s a careful employer to do? read more…

In his last post, Tyler K. Wilkinson addressed the question “Should employers friend a job applicant on Facebook?” This time, he looks at the dangers of basing employment decisions on what you find on employees’ Facebook walls.

You may expose yourself to liability when reprimanding or terminating employees because of their social media posts. Employers are beginning to implement social media policies that prohibit employees from posting information that is detrimental to the company. And most employers would agree that posting disparaging remarks about the company or coworkers could be grounds for discipline or even termination. But recent legal challenges demonstrate that a broad social media policy is not a cure-all for employees’ online misconduct. read more…

This week, we bring you a two-part series from Tyler K. Wilkinson examines how social media, especially Facebook, has blurred the lines between personal and professional life. In this post he addresses the question “Should employers friend a job applicant on Facebook?”

Screening job applicants online has become increasingly popular and easy to do. A recent report reveals that almost half of companies surveyed use social media sites to scope out potential employees before making a hiring decision. And job applicants increasingly are using social media sites to distinguish themselves from competitive applicant pools. Why? Social media sites can provide a wealth of information about an applicant that’s not typically included in a resumé.

But refusing to hire a job applicant because of information discovered from online screening may be against the law. Title VII of the Civil Rights Act of1964 prohibits you from refusing to hire an applicant because of his race, color, religion, sex, or national origin. Many state laws go even further, prohibiting you from refusing to hire an applicant because of  things like ancestry, arrest or conviction record, marital status, pregnancy, sexual orientation, genetic information or use or nonuse of lawful products outside of work, among other things. Additional statutes prohibit you from refusing to hire applicants because of age, disability, and military service.

So what’s the problem with using social media to screen applicants? read more…

Previously, we have reported on several cases in which the National Labor Relations Board (NLRB) has taken employers to task for disciplining or firing employees for their tweets, Facebook posts, and blog posts. Recently, the tides have turned and the NLRB has issued a series of pro-employer decisions.

Technology for HR manual and HR Laws subscribers tip: Research social media policies online

On her blog,  Molly DiBianca notes that the employers’ actions were justified because they were “based on employees’ personal gripes, which fall outside the scope of protected activity, and which constituted acts of misconduct for which the employees could be terminated.”

You can listen to an interview Molly did with Boston’s NPR station for the story “What Can You Blog About Your Boss?” and read her basic dos and don’ts of social media for employers.

Do you know you need to do something about your social media policy but don’t know where to start? The Technology for HR manual will  help you develop workplace policies that take advantage of new technologies while dodging legal pitfalls.