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Social Media and Data Privacy in USA

1. Can the employer restrict the employee’s use of Internet and social media during working hours?

While there is no specific rule prohibiting employers from restricting employees’ social media use during working hours, there are certain laws employers should consider, particularly with respect to any type of monitoring of employees’ social media use. For example, the Stored Communications Act (“SCA”) generally prohibits accessing the online account of another without that individual’s consent. Similarly, simply asking employees for the passwords to access their social media or online account generally is impermissible in a number of states. In addition, employees have common law “privacy rights” which are enforced through tort claims based on invasion of privacy theories. Further, the National Labor Relations Board (“NLRB”) has ruled employees have a right to use their employers’ email systems for nonbusiness purposes, including communicating about union organizing.

2. Employee’s use of social media to disparage the employer or divulge confidential information

Employers must tread carefully in situations where an employee disparages the employer or divulges confidential information using social media.

First, the employee may be protected under a federal or state whistleblower law, which generally protects employees who complain about certain company activities or conditions affecting public health and safety or violating public policy standards, as well as employees who report potential securities fraud violations.

Second, the National Labor Relations Act (“NLRA”) affords employees (even those who are not unionized) the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticize their employers—with co-workers and outsiders. What exactly constitutes protected concerted activity requires further examination and analysis of the facts at issue on a case-by-case basis.

In 2012, the NLRB Acting General Counsel issued a report finding certain policy language regarding employee social media use to be problematic, including the following:

  • PROHIBITING POSTS DISCUSSING THE EMPLOYER’S NON-PUBLIC INFORMATION, CONFIDENTIAL INFORMATION, AND LEGAL MATTERS (WITHOUT FURTHER CLARIFICATION OF THE MEANING OF THESE TERMS);
  • PROHIBITING EMPLOYEES FROM HARMING THE IMAGE AND INTEGRITY OF THE COMPANY, MAKING STATEMENTS THAT ARE DETRIMENTAL, DISPARAGING OR DEFAMATORY TO THE EMPLOYER, AND PROHIBITING EMPLOYEES FROM DISCUSSING WORKPLACE DISSATISFACTION; AND
  • PROHIBITING POSTS THAT ARE INACCURATE OR MISLEADING OR THAT CONTAIN OFFENSIVE, DEMEANING OR INAPPROPRIATE REMARKS, AND INSTRUCTING EMPLOYEES TO USE A FRIENDLY TONE AND NOT ENGAGE IN INFLAMMATORY DISCUSSIONS.

On the other hand, the Acting General Counsel found a social media policy that prevented “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” to be lawful “since it prohibit[ed] plainly egregious conduct, such as discrimination and threats of violence.”

For more information, please contact Jackson Lewis P.C. our member firm in this country.
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