When Tech Innovation Outpaces the Law, A Minefield Of Workplace Issues in Social Media

by JD Supra Perspectives

...the NLRB has famously struck down employers’ social media policies based on a law that was adopted during the New Deal and has not been amended since.

In the world of employment law, employers have been quick to adapt to quickly changing technological circumstances. For example, non-exempt employees are often prohibited from e-mailing after hours, as numerous courts have found that doing so is compensable time, employers have quickly begun to adopt BYOD (Bring Your Own Device) policies under which they limit employees’ access to company information on personal devices, and, for many years now, harassment and discrimination claims have been won or lost based on digital information gathered from searches of internal e-mail servers. In fact, it is not unusual to see employers restricting storage of confidential information “on the cloud” or to ban employees from using smartphones when traveling to countries like China that are notorious for hacking IT assets belonging to American companies.

But, in many respects, the law has been very slow to adapt to technological advances and nowhere is that more true than with social media. The National Labor Relations Board (NLRB) has famously struck down employers’ social media policies based on a law that was adopted during the New Deal and has not been amended since. The NLRB takes the position that communications via social media are no different than phone calls, e-mails or meetings, despite the fact that social media posts reach a wide audience instantaneously.  As a result, the NLRB has ordered employers to reinstate employees who publicly criticize them on Facebook or Twitter, even when employees do so in offensive ways.

Social media also poses a potential legal hurdle with background checks. Generally speaking, American employers are permitted to perform a background checks, provided that they obtain an employee’s consent to do so and they inform the employee of any adverse results. But what about an employer who searches an employee’s Facebook or Twitter pages? Is that a background check requiring notice? In 2012, the Federal Trade Commission (FTC) issued an $800,000 fine to Spokeo, a website that performs social media searches for employers for running afoul of the Fair Credit Reporting Act, but there have been no reported cases on employers who have their own internal staff review an applicant’s social media pages for information.

Will the law adapt to changing technology? Probably not on a federal level, given the stalemate in Congress, so decisions about how to apply decades-old laws to changing times will be left to administrative agencies like the NLRB and FTC, or to the courts.

But, there is some hope that sensible laws will emerge at the state level. For example, several states have adopted laws which limit employers’ abilities to force employees to hand over social media usernames and passwords, except in limited circumstances, like in an investigation of employee misconduct. Other laws are emerging with respect to employee e-mail privacy and cell phone usage. Only time will tell whether the world of employment law can keep up with the rapid pace of technology.


[Part of our JD Supra Perspectives series in which we asked our contributors, experts in their fields, to write about examples in which technological innovation has outpaced the law. Dan Handman is a partner and labor and employment litigator in Hirschfeld Kraemer's Los Angeles office.]

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