Many people have commented on social media regarding the anti-racist movement that has been gaining strength in the wake of police officers killings around the country. Unfortunately, some of these posts are inflammatory, derogatory, offensive, or racist. Even though employees are generally posting on their personal social media pages and
Articles Discussing Social Networking Issues In The Workplace.
Drafting a social media policy in compliance with Section 7 of the National Labor Relations Act (“NLRA” or “the Act”) has become increasingly challenging for employers, as the National Labor Relations Board (“NLRB” or “the Board”) continues to parse individual words and phrases in employers’ social media policies. Enforcing that policy can be even more challenging as the Board and counsel struggle to apply the 1930s concept of “protected concerted activity” to employees’ burgeoning 21st century social media activity. The Board’s August 18, 2016 decision in Chipotle Services LLC1 provides employers with useful guidance on both drafting provisions commonly seen in social media policies, and enforcing the policy in response to employees’ social media posts.
It is becoming increasingly common for issues to arise relating to employer vs. employee ownership of a social media account and the names, addresses, etc. that go along with that account. Business-related social media accounts typically contain useful information developed over the course of employment that can give a departing employee a head start in competition with an ex-employer. While there has been a lot of litigation about these issues, there are relatively few reported decisions. One such decision can be found in CDM Media USA, Inc. v. Simms (Cause No. 14 CV 9111, N.D. Ill., March 25, 2015), in which the court does not resolve issues relating to social media ownership, but it does highlight some important steps a company can take to safeguard its information. The opinion is a response to a motion to dismiss filed by the defendant.
According to a survey by the Society for Human Resource Management, almost 90% of employers throw a holiday party. Taking into account holiday parties hosted by employees for co-workers, there is a very good chance your company’s employees will be rubbing shoulders by the eggnog this year.
As we have previously reported, a growing list of jurisdictions have enacted social media privacy laws applicable to employers.
In Palmieri v. United States, — F.Supp.3d –, No. CV 12-1403 (JDB) (D.D.C. Nov. 3, 2014), U.S. District Judge John D. Bates held that the plaintiff had no constitutional expectation of privacy with respect to social-media content that he had shared with on-line ‘friends.’ Accordingly, the court dismissed the plaintiff’s claim that his Fourth-Amendment rights had been violated when a ‘friend’ (who was also an individually named defendant) shared the plaintiff’s on-line postings and related content with his government-agency employer.
In Painter v. Atwood, No. 2:12–CV–1215 JCM (NJK), 2014 WL 3611636 (D. Nev. July 21, 2014), U.S. District Judge James C. Mahan affirmed Magistrate Judge Nancy Koppe’s order granting spoliation sanctions following the plaintiff’s destruction of social media evidence. Because the plaintiff did not dispute a defense witness’s declaration that the plaintiff had failed to produce favorable Facebook posts, the magistrate issued an adverse inference instruction that the “destroyed evidence” was “detrimental to Plaintiff’s claims.” The District Court found no error in this sanction.
The pervasive use of Facebook, email, LinkedIn, and other forms of social media “presents new opportunities as well as questions and concerns,” according to Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien at Wednesday’s public meeting. The meeting was held to pinpoint the various ways in which an employee’s and an employer’s use of social media, and the blurring of the line between what is considered public and private information, could raise EEO concerns. As with the National Labor Relations Board, the EEOC is yet another federal agency exploring the impact of social media on laws within its jurisdiction.
We previously contended that applicants and employees might create “phantom” social media profiles to thwart employer inquiries into their online conduct. In Trapp v. DHS, the tables were turned when a supervisor created a fictitious Facebook profile to investigate allegations that an employee posted inappropriate comments on his Facebook page. When the employee was terminated as a result of his Facebook page’s contents (and another charge), he disputed his termination in arbitration. The arbitrator determined that the employee’s Facebook profile was private because the employee had limited access exclusively to his Facebook friends.