As social media use has become widespread, it has become common practice for employers to search the social media accounts of potential and current employees and to take action as a result of postings on social media sites. A 2012 CareerBuilder survey found that 37% of employers use social networking sites to research job candidates. They do so to learn more about the candidates, and to determine whether there are reasons not to hire them. Many employers also monitor the social media accounts of their current employees. Depending on how it is done, such monitoring can be unlawful, particularly if an employer is seeking to access password protected sites by compelling employees to disclose their passwords, or if an employer disciplines an employee for engaging in protected conduct.
With Limited Exceptions, An Employer Cannot Force a Worker to Turn Over Personal Social Media Information
In California, Labor Code § 980 prohibits an employer from requiring or requesting that an employee do any of the following:
- Disclose a username or password for the purpose of accessing personal social media;
- Access personal social media in the presence of the employer;
- Divulge any personal social media, with limited exception.
The exception is narrow: an employer can “request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.” This means that employers cannot freely ask employees for their social media passwords or attempt to access employees’ social media sites that are not readily visible.
Labor Code § 980 also makes it unlawful for an employer to discharge, discipline, threaten, or otherwise retaliate against an employee for refusing to comply with a request that violates Section 980. Thus, an employee who is punished for refusing to comply with his employer’s unlawful request to turn over social medial passwords or information is protected. If he is fired in retaliation, he may also be able to sue for wrongful termination. Several other states have similar protections.
Employees Are Covered When They Use Social Media to Engage In “Concerted Protected Activity”
Even workers who are not in unions are protected by certain parts of the National Labor Relations Act, 29 U.S.C. §§ 151-169 (NLRA). Section 7 of the NLRA, which applies nationally to most non-management private sector employees, protects an employee’s rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRA’s protections extend to concerted activities that take place online, including through Facebook postings, Twitter tweets, and blog posts. What this means is that an employer that disciplines or otherwise punishes an employee for online activity that is deemed concerted activity is likely violating the NLRA.
If an employer learns that an employee has made negative statements about the company, its managers, or its practices on a social media site, the employer must carefully analyze whether the employee’s statements constituted protected “concerted activity” before determining what action, if any, to take in response. The test is whether the employee is acting “with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Even a conversation that involves only a speaker and a listener can constitute concerted activity.
In the online world, the line between communications that constitute protected concerted activity related to the terms and conditions of employment and those that are unprotected “individual gripes” can be blurred. Regardless of whether the communications are informal, shorthand, sarcastic, or profanity-ridden, if they involve a collective concern and are made with or on the authority of other employees, they can fall within the protections of the NLRA. If on the other hand, the concerns are not shared concerns but are of interest to the individual only, they are not deemed protected.
The National Labor Relations Board (“NLRB”) has addressed employee discipline for social media postings. In Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker (“Knauz BMW”), 358 N.L.R.B. 164 (2012), a car salesman posted Facebook postings about an accident at the Land Rover dealership across the street (also owned by his employer) where a vehicle was driven over a wall and into a pond, causing injuries and embarrassment; that same day, he also posted comments and photos mocking the cheap food (hot dogs and water) provided at a BMW event. Shortly after, he was terminated. The Board determined that the salesman was terminated because of his posting about the Land Rover accident, not because of the posting about the food, and that the postings about the accident were not protected because they were posted “as a lark” with no discussion with coworkers and no connection between the posting and the terms and conditions of employment.
There is also further guidance that came from the Acting General Counsel of the NLRB, who released three reports on social media cases brought to the agency–one in May 2012 (OM Memo 12-59), one in January 2012 (OM Memo 12-31), and one in August 2011 (OM Memo 11-74). They help provide an understanding of what may be deemed protected and what is not.
A Broad Range of Social Media Content Has Been Deemed “Protected Concerted Activity”
In reviewing the NLRB’s reports, the following are some examples of conduct that was deemed “protected concerted activity”:
- Facebook comments about an unfair promotion decision. (1/12 Report, 20-21).
- Several employees made Facebook comments about the negative attitude and poor supervision of a manager, and the effects on the workplace. Although some comments were phrased as one employee’s own dissatisfaction with the supervisor, they arose in an ongoing conversation about other topics related to the terms and conditions of employment, including employee discipline, work scheduling, and inadequate supplies. (1/12 Report, 22-23).
- In response to perceived unfair treatment by a supervisor, an employee posted a negative remark about the supervisor on Facebook that included referring to the supervisor as a “scumbag.” Several co-workers left supportive responses and negative comments about the supervisor. (8/11 Report, 5).
- After being moved to a less lucrative position, an employee posted an expletive-filled update stating that her employer had messed up and she was done with being a good employee. Other employees, current and former, also expressed their anger about the company’s practices, and one suggested a class action. The initial post and ensuing discussion were deemed concerted activity. (1/12 Report, 3-6).
- An employee posted angry comments on Facebook about others losing their jobs after asking for help and her being scolded by management for caring. (1/12 Report, 18-20).
- A domestic violence advocate made complaints to management about client and workload issues involving a coworker. The coworker posted on Facebook that the advocate felt that her coworkers did not help their clients enough, inviting comments. Four other coworkers responded with negative comments, swearing, and sarcasm. After the advocate complained, five employees who posted were terminated. The NLRB determined that the Facebook conversation was concerted activity “for mutual aid and protection.” (8/11 Report, 3-5.)
- A former employee criticized an employer’s tax withholding practices on Facebook, one current employee hit the Facebook “like” button and another wrote that she also was owed money and referred to one of the owners as an “a**hole.” Two customers also joined in the conversation. Both current employees were terminated, and the employer threatened to sue the one who left the comment. Both were deemed to have engaged in protected concerted activity regarding shared concerns about a term and condition of employment, administration of income tax withholdings. (8/11 Report, 9-12).
Be Careful What You Say Because Not All Work-Related Comments Are Protected
The following were not deemed protected by the Acting General Counsel:
- Facebook postings by an employee, a respiratory therapist, that her coworker was driving her nuts by sucking his teeth and that she was about to beat him with a ventilator. These complaints did not concern terms and conditions of employment; she was merely complaining and was not suggesting the employer should take action. (1/12 Report, 30-32.)
- After being disciplined by a supervisor, an employee posted a Facebook update that consisted of an expletive and the name of the company. A coworker liked the comment. The employee later posted another updated commented that the employer did not appreciate its employees, but no coworkers responded. These posts were deemed an expression of an individual gripe because they were an expression of frustration over an individual interaction, there was no audience in mind when the post was made, it was not building on prior discussions, and no language suggested group action or an eliciting of support. (1/12 Report, 6-7).
- An employee posted about the “tyranny” at his store and suggested that his employer would get a wake-up call because lots of employees would soon quit. When other coworkers responded by offering emotional support and asked why he was so upset, he responded that the manager was a “super mega puta” and had chewed him out for mispriced/misplaced merchandise. More supportive comments were made. The postings were not deemed concerted activity because they did not seek to initiate group action and were not rooted in prior discussions, but rather expressed frustration over an individual dispute. (8/11 Report, 17-18.)
- A bartender posted that a fellow bartender who was using a drink mix but charging clients for drinks made from scratch was “screwing over” customers, and that dishonest employees and management looking the other way would be the death of the business. These were not deemed concerted activity because the connection with terms and conditions of employment was “attenuated.” (1/12 Report, 9-11.)
- An employee posted comments on her Facebook wall ranting against coworkers, indicating that she hated people at work, that they blamed her, and that she wanted to be left alone. Her postings were not protected, despite comments left by coworkers, because they reflected personal anger, were made on her own behalf, and did not suggest efforts to initiate group action. (1/12 Report, 11-12).
- A bartender who complained to a relative that he had not had a raise in five years and was doing the waitresses’ work without tips, and who called customers “rednecks” and stated that he hoped they choked on glass as they drove home drunk. This was not concerted activity because, although some of his posting addressed the terms and conditions of his employment, he was not discussing it with his coworkers and none responded to his post. (8/11 Report, 14-15.)
- An employee posted on her Senator’s Facebook “wall” negative comments about the condition of emergency medical services in her state, including negative facts and comments about her employer (which provided such services). This was not concerted activity because she did not discuss these comments with coworkers before or after posting them and admitted that the purpose of the comments was to educate the Senator, not to elicit help (8/11 Report, 15-16.)
Employees have protections with respect to their social media postings. If they take the care to ensure that they have privacy settings in place, their employer cannot simply demand that they provide access to posts. In addition, employees have protections with respect to postings that constitute “protected concerted activity.” That said, what some employees think are protected comments about their workplaces may not end up being protected after all, particularly when they are “venting” about their own personal frustrations. Employees should therefore take care and take a route that is “better safe than sorry.”
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Footnotes and Additional References
 California was the third state to pass such a law, following Maryland (Maryland User Name and Password Privacy Protection Act) and Illinois (Illinois Right to Privacy in the Workplace Act). Congress is considering similar legislation. For example, H.R. 537: Social Networking Online Protection Act was introduced February 6, 2013.
 Meyers Industries, 268 N.L.R.B. 493, 497 (1984).
 Meyers Industries, 281 N.L.R.B. 882, 887 (1986).
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