Social Media in the Workplace: Lawyers Weigh In… [With Video]

Much has been said lately about the dubious practice of asking for Facebook passwords during job interviews. But, as you can tell from our quick roundup below, this is not the only issue at the intersection of social media, your business governance policies, and the law. For your consideration [updated 4/12 with video - see below]:

eWorkplace Policies – Social-Media, Privacy & Internet-Security (Fenwick & West):

Impressive, 129-page publication covering workplace technology issues of the day: “Given the mobility of electronic information, the stakes keep getting higher. Employees have access to, and are the gatekeepers of, trade secrets and other sensitive and confidential information. There are now many more ways that key information can be compromised, lost or stolen…” Read on>>

Federal Courts Determine That Social Networking Accounts Can Contain Trade Secrets (Wilson Sonsini):

“As more businesses take advantage of social networking sites to build their brands and expand their marketing efforts, the question arises: can such promotional tools include protectable trade secrets? In at least some circumstances they can, according to two federal courts considering misappropriation cases involving MySpace and Twitter accounts…” Read on>>

Socially Aware: The Social Media Law Update — Vol. 3, Issue 2 April 2012 (Morrison & Foerster):

“The FTC has not yet publicly addressed this issue, but we think that it could challenge an advertiser’s failure to disclose the consideration received in exchange for an endorsement conveyed by a ‘like.’ Any disclosure that the FTC would seek to prescribe in connection with “likes” displayed within the Facebook platform would most likely have to be built into Facebook’s “like” feature itself – something that is not within advertisers’ direct control…” Read on>>

[Video] Is There a Way to Safely Use Social Media in the Interview Process? (McNees Wallace & Nurick):

“For organizations who still insist on reviewing social media data to determine whether an applicant would be a good fit in their organization, they can start by appointing a social media screener not involved in the decision-making process. Also, the employer should implement a policy and procedure to identify who will be involved in the decision, what data will be collected, when it will be collected and from what sites, and how the data will be communicated to the hiring manager…” Watch the video>>

Employers Must Update Their Social Media Policies (White & Case):

“One of the main points underscored by the second [NLRB] report is that ‘[e]mployer 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.’ The NLRA permits union and non-union employees who are not “supervisors” to engage in concerted action for their mutual aid and protection, including discussing their terms and conditions of employment. Such discussions are increasingly taking place on social media such as Facebook, Twitter and the like…” Read on>>

Second Verse: Worse Than the First! (McNees Wallace & Nurick):

“We have discussed this many times before in the last year, but it is worth repeating: now is the time to review and narrowly tailor your policies to ensure compliance with rapidly-developing [NLRB] case law. With carefully crafted policies, you can still protect the your organization’s reputation and intellectual property; enforce attendance and harassment policies; and do so, without infringing on employees’ right to engage in protected concerted activity…” Read on>>

Regulate Employee Technology Use Without Becoming a Target (Lane Powell)

“Contrary to popular belief, private sector employees do not have a constitutional right to ‘free speech’ in the workplace. Many employees do, however, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in ‘concerted activities for the purpose of … mutual aid or protection.’ While the NLRA does not protect actions taken solely on an employee’s own behalf, it does protect actions taken with or on behalf of at least one other employee, or on the authority of other employees, when those activities relate to the terms and conditions of their employment…” Read on>>

Password Protected – Proposed Social Media Privacy Legislation (Sheppard Mullin):

“…a handful of states have drafted legislation seeking to outlaw what some consider to be an invasion of privacy. Lawmakers in Illinois, Maryland, and California have proposed legislation that would prohibit employers from requiring that current or prospective employees provide or disclose any user names, passwords, or other ways of accessing a personal online account. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation, as is the United States Senate…” Read on>>

Employer Practice of Requesting Social Media Access May Be in Jeopardy (Franczek Radelet):

“On March 29, the Illinois House of Representatives passed House Bill 3782, which if passed by the State Senate, will make it unlawful for employers to request employees or prospective employees to provide their social media passwords or account access information. The proposed legislation applies to both public and private employers doing business in Illinois, and would amend the Illinois Right to Privacy in the Workplace Act…” Read on>>

Don’t Let Senators Write Overly Broad Laws That Limit What Employers Can Do! (Warner Norcross & Judd):

“Don’t believe this can happen here? Sure it can. There are at least 70 bills pending in the current Congress that deal with online privacy or security in one way or another, from the Senate’s USA PATRIOT Act Improvements Act of 2011 to the House’s Do Not Track Me Online Act.  Most of these bills would have just faded away.  Not now.  Senators are pounding their fists on tables in outrage…” Read on>>

Construction and Social Media – Do You Have a Plan? (Snell & Wilmer):

“Our clients are increasingly interested in better understanding the reality of social media and its inevitable intrusion upon customary solicitation and bidding, design review, construction management and project administration and delivery. As more construction projects go paperless, moreover, clients are wondering if the electronic and digital technology behind social media is going to dominate as the means of project communication or if social media will simply be relegated to personal networking between construction professionals. Many questions have also been raised about document and data retention policies for social media, especially when claims or litigation are anticipated…” Read on>>

The JOBS Act and Crowdfunding – Letting Go (Looper Reed):

“In short, the new law will make it easier to allow crowdfunding for actual investors.  Before now, a site like KickStarter, could raise money online from a large group of people, but not in exchange for stocks.  Currently, the law makes it difficult to solicit funds from a large amount of investors who are not considered “accredited” investors.  To be an accredited investor you have to have more than $1 million in assets excluding your residence or $250,000 in income for the last two years for an individual; i.e., rich.

With passage of the JOBS Act, companies can now raise up to $1 million through crowdfunding…” Read on>>

Also see:

Additional social media law advisories on Twitter and Facebook>>

Bonus track:

How to screen job applicants without asking for the Facebook password (McNees Wallace & Nurick)