Last week, New York’s Governor signed a bill into law that effectively prohibits employers from accessing employees’ or job applicants’ personal social media accounts. The law goes into effect on March 12, 2024.
Continue Reading New Restrictions on New York Employers’ Access to Employee and Applicant Social Media Accounts

Given the pervasiveness of social media in society, the National Labor Relations Board has been forced to frequently weigh in on the intersection between employee and employer’s social media activity and labor law. The Board has released a great catalog of cases over the past decade touching on issues related to the workplace and social media—these issues range from what social media policies and employer may enact to what discipline an employer may impose for an employee’s social media conduct.
Continue Reading NLRB Finds Executive’s Joking Tweet Violated Federal Labor Law

Under the National Labor Relations Act, employers usually may not discipline employees for engaging in certain collective or concerted activity, including comments regarding terms and conditions of employment, unless the employee’s behavior is so outrageous that it loses the protection of the Act. But how far can employees push the boundary before their conduct will be found indefensible?
Continue Reading NLRB Social Media Rules Continue to Surprise as Board Reinstates Employee After Calling Boss “Nasty Mother F*****”

We have been reporting in this space for the better part of a year about the uptick in NLRB enforcement activity in non-union workplaces. One of the Board’s most noteworthy – and controversial – areas of focus has been on the question whether employer confidentiality rules unlawfully chill protected concerted employee activity under the National Labor Relations Act.
Continue Reading Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies

As 2013 winds to a close, we take this opportunity to alert you to two significant cases from earlier this year pertaining to the spoliation of social media evidence.  In both of these cases, the plaintiffs – either intentionally or accidentally – destroyed evidence on their social media sites resulting in severe sanctions.  The central takeaway from these cases is that social media evidence – from a preservation standpoint – is identical to physical evidence and, thus, should not be altered, modified, or deleted during the pendency of litigation.
Continue Reading Two Courts Sanction Plaintiffs For Spoliation of Facebook Evidence

The U.S. District Court for the District of New Jersey recently ruled that non-public Facebook wall posts are protected under the Federal Stored Communications Act (the “SCA”) in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-CV-3305 (WMJ) (D.N.J. Aug. 20, 2013).  The plaintiff was a registered nurse and paramedic at Monmouth-Ocean Hospital Service Corp. (“MONOC”).  She maintained a personal Facebook profile and was “Facebook friends” with many of her coworkers but none of the MONOC managers.  She adjusted her privacy preferences so only her “Facebook friends” could view the messages she posted onto her Facebook wall.  Unbeknownst to the plaintiff, a coworker who was also a “Facebook friend” took screenshots of the plaintiff’s wall posts and sent them to a MONOC manager.  When the manager learned of a wall post in which the plaintiff criticized Washington, D.C. paramedics in their response to a museum shooting, MONOC temporarily suspended the plaintiff with pay and delivered a memo warning her that the wall post reflected a “deliberate disregard for patient safety.”  The plaintiff subsequently filed suit alleging violations of the SCA, among other claims.Continue Reading Federal Court: Non-Public Facebook Wall Posts Are Protected Under The Federal Stored Communications Act

In an Advice Memorandum released last month, the National Labor Relations Board (“NLRB”) Associate General Counsel’s office found that portions of a social media policy violated Section 7 of the National Labor Relations Act, which protects employees’ rights to “self-organiz[e], to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” Continue Reading NLRB Releases Advice Memo on Social Media Policies, Increases Focus on Employee Handbooks

The growth of social media as a low-cost, widely-accessible form of communication has made it an ideal tool for businesses large and small to market themselves and reach out en mass to consumers in a manner more direct, personal, and in many ways effective than traditional media.  With Americans spending more time on-line than ever before, the value of such social media accounts can be considerable.  So when an employee who has used social media to develop his employer’s business and goodwill resigns, who owns the account, the contacts, and valuable consumer data that come with it?
Continue Reading Saving Face Over Facebook and Other Social Media: Ownership of Social Media Accounts Used to Promote Business