Social media policy changes seem to be continuous. Have you updated your employee handbook to reflect the latest California laws?
Perhaps you’ve heard of the stories of employers asking prospective employees to hand over their Facebook passwords? This has shown up in the news as an attempt – perhaps a misguided one – to conduct background screening on new hires and even on existing employees. From an employee perspective, this raises many privacy concerns. If social media settings are set to “private,” should an employee have to divulge it? California law says no.
“The legislature recognizes that a lot of employers are doing some things with social media that maybe they shouldn’t.” Joel M. Van Parys confirmed in a recent CER webinar. As such, AB 1844 now prohibits employers from requiring or requesting an employee or applicant for employment:
- To disclose a username or password for the purpose of accessing personal social media
- To access personal social media in the presence of the employer
- To divulge any personal social media
Employers can still request the username and passwords needed to access employer-issued devices. Employers can also still request employee to divulge personal social media if it is reasonably believed to be relevant to an investigation of employee misconduct.
What does this mean for California employers? Employers should look at their social media policy in their employee handbook and make sure it is consistent with the new law.
Social media policy changes: How the NLRB is shaping the rules
The National Labor Relations Board (NLRB) has also been issuing decisions that affect employer social media policies.
In general, NLRB is “taking aim at broadly-worded policies that prohibit employees from disparaging the company on social media postings.” Van Parys explained. If these communications reasonably may be considered communications about terms and conditions of employment, they may be deemed “concerted activity” – and thus protected from retaliation under the NLRA – even if disparaging.
What should an employer do? “They [the NLRB] recommend that policies include examples and disclaimer language to make it clear that the policy does not cover protected discussions or speech regarding wages and terms and conditions of employment.” Van Parys told us. Employers can still protect themselves from some forms of disparaging postings. In fact, NLRB has upheld terminations based on employee’s negative social media postings where the postings were not discussions among coworkers about wages or benefits or terms and conditions of employment. Comments about coworkers, customers, or supervisors that are simply mean-spirited and not reasonably tied to terms and conditions of employment are less likely to be considered protected communications.
Employers should review the NLRB policy and decisions and ensure their own social media policy is consistent. On their website, NLRB provides a sample social media policy held to be lawful.
The above information is excerpted from the webinar “New Year, New Laws, New California Employee Handbook: What to Change and What to Keep in 2013.” To register for a future webinar, visit CER webinars.
Joel M. Van Parys is an attorney in the Sacramento office of Carothers DiSante & Freudenberger LLP. He represents management in all aspects of the employer-employee relationship, including defense of wage and hour claims, employee misclassifications, wrongful termination, discrimination and harassment, retaliation and unfair competition claims.