Social media is playing an increasingly important role in how businesses operate as companies seek to leverage its broad reach and  influence to increase brand awareness, to better understand market perception and to market their  products or services to current and potential customers. Additionally, many companies are using it  to assist in the hiring process, while others face the issue of whether and how to discipline  employees for their work- related social media activities.

Some companies have even gone so far as to request or require their employees or  prospective  employees to disclose personal  social media account information. This practice has been highly  criticized by privacy groups and also carries certain legal risks—requesting the information is now  prohibited in a number of states, and using information from social media sites to make hiring  decisions can implicate state and federal discrimination laws. And companies must be careful to not  run afoul of employees’ statutory or common law rights when deciding whether and how to monitor  employees’ social media activity and what actions they may permissibly take when they encounter  activity that might warrant employee discipline.

Employers Requesting Social Media Passwords

Social media sites have been around for more than a decade. However, the practice of companies requesting social media account information from  their current or prospective employees is a relatively new phenomenon that was highly publicized  when the Associated Press ran a story about a New York statistician being asked for his Facebook  password during a job interview.1 That story, which prompted a critical response from privacy  groups and the public, prompted legislators across the country to introduce legislation to ban the  practice.

Within weeks of the Associated Press story, Maryland became the first state to enact a social media  privacy law prohibiting employers from requesting social media account information from current or  prospective employees. Since then, 12 additional states have enacted similar laws including:  Arkansas, California, Colorado, Illinois, Michigan, Nevada, New Jersey, New Mexico, Oregon, Utah,  Vermont, and Washington.2 In addition, related legislation has been introduced or is pending in  more than 20 other states.3 Although each state’s enacted or proposed law is unique in some  respects, their general purpose is the same: to prohibit  employers from requesting that their current or prospective employees disclose their private social media account information.4

Social media privacy issues are also being discussed in the US Congress. After Senators Charles  Schumer and Richard Blumenthal asked the Department of Justice and the Equal Employment Opportunity  Commission in March 2012 to investigate whether employers requesting personal social media account  information violates federal law, bills have been introduced in both houses to ban the practice:  the Social Network Online Protection Act (H.R. 537) and the Password Protection Act of 2013 (S. 1426). These bills, if enacted, would, like their  state counterparts, prohibit employers from requesting that their employees or prospective  employees disclose personal social media account information. Although it does not appear that  either bill will be enacted during the current legislative session,5 it is reasonably foreseeable  that similar legislation will be enacted in the future given the number of states adopting similar  laws. Therefore, even companies that are not located in jurisdictions with enacted social media  privacy laws should keep apprised of this issue.

Social Media May Implicate Discrimination or Retaliation Laws

Companies that base their hiring decisions or other employment-related actions on social media should also be aware of certain other legal risks,  whether or not the company requests personal social media account information. One such risk is a  potential claim that an  employment decision (e.g., hiring, discipline or termination) constitutes  unlawful discrimination or retaliation. Existing federal laws, including Title VII of the Civil  Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act  and the Genetic Information Nondiscrimination Act, prohibit employers from basing employment  decisions on factors such as age, race, national origin, religion, marital status and genetic information. In addition, many state laws protect additional characteristics (e.g., sexuality),  provide statutory or common law privacy protection, or protect legal off-duty activities.

Although there are relatively few decisions addressing employment discrimination in the social  media context, recent cases suggest that courts may be receptive to such claims. In Gaskell v.  University of Kentucky,6 the plaintiff, a leading candidate for the director position at a new  campus observatory, alleged that the university discriminated against him because a member of the  university’s search committee noted that he had published an online article about the Bible and his  belief in creationism. Although the university argued at summary judgment that its decision not to  hire the plaintiff was based on valid scientific concerns, the court concluded that there was a  genuine issue of material fact as to whether the committee member’s opinion about the online  article and the plaintiff’s religious beliefs were a factor in the employment decision.

Similarly, in Neiman v. Grange Mutual Casualty Co.,7 the court denied a motion to dismiss the plaintiff’s claim that the company’s decision to not hire him was age discrimination. Although the  defendant argued that it lacked knowledge of the plaintiff’s age because the interview was by  telephone, the court held that the plaintiff’s allegation that the defendant knew his age because  he had posted his college graduation year on his LinkedIn profile was sufficient to state a claim  at the pleading stage. The court emphasized that “[i]t is not difficult to determine that someone  who graduated from college in 1989 probably was over the age of 40 in 2010. This is enough to place  [the company] on notice that [the plaintiff] is subject to the protection of the laws against age  discrimination.”

As the foregoing decisions suggest, companies that consider social media when making  employment decisions should be cognizant that protected information is often posted on social media sites and that viewing such sites may pose a risk that the company will obtain information about a  protected class or protected activity. If this protected information ultimately reaches  the  decision-maker, either directly or indirectly, an applicant or employee may use that fact to  challenge an employment decision in a subsequent state or federal lawsuit. Consequently, the  company may ultimately have to spend a significant amount of time and resources defending itself in  a lawsuit that possibly could have been avoided.8

Social Media May Implicate the Stored Communications Act

Companies also should be aware that the unauthorized monitoring or accessing of their employees’  personal social media accounts may implicate the federal Stored Communications Act (“SCA”), which  generally prohibits intentional, unauthorized access to electronic information. Although the SCA  was enacted almost 30 years ago, well before the advent of social media, courts recently have  started applying the SCA to social media. For example, in Ehling v. Monmouth-Ocean Hospital Service  Corp.,9 the plaintiff, a paramedic, alleged that her hospital employer violated the SCA by  temporarily suspending her after she posted on Facebook that the paramedics responding to a  shooting at a holocaust museum should have refused to treat the suspected shooter and the  responding security guards needed target practice. Although the plaintiff used Facebook’s privacy  settings to limit her posts to her Facebook friends, one of those friends, who also was a  co-worker, took screenshots of her posts and sent them to hospital management.

The court ultimately dismissed the plaintiff’s SCA claim at summary judgment. Before doing so,  however, the court held that the SCA applied to the plaintiff’s Facebook posts because “[t]he  legislative history of the SCA suggest[ed] that

Congress wanted to protect electronic communications that are configured to be private.” The court  emphasized that because the plaintiff’s posts were electronic communications not accessible to the  general public (i.e., she used Facebook’s privacy settings) and Facebook is an electronic  communication service that archives posts and messages, the SCA applied to the posts. Nonetheless,  this was insufficient to create a genuine issue of material fact because it was undisputed that the  plaintiff’s co-worker (and Facebook friend), voluntarily sent the screenshots to hospital  management. Therefore, the court concluded that the hospital was an authorized recipient of the  plaintiff’s posts, and the SCA’s “authorized user” exception applied.10

In Rodriguez v. Widener University,11 the plaintiff, a student employee, alleged that his  university employer violated the SCA by suspending him for a Facebook post containing images of  weapons. The university moved to dismiss the complaint arguing that it received the post from one  of the plaintiff’s Facebook friends. However, the court denied the motion because there were no  allegations in the complaint that the plaintiff’s Facebook profile lacked privacy settings, that  his posts were available to the general public, or that a Facebook friend provided the university  with the post. Consequently, there was insufficient information at the pleading stage to dismiss  the plaintiff’s SCA claim for failure to state a claim.

As the foregoing cases suggest, it appears that courts may apply the SCA to social media posts.  Although viewing social media content that is publicly available is not likely to run afoul of the  SCA, companies should be careful not to access employees’ private social media accounts without  authorization. For example, although the Ehling court concluded that the hospital’s conduct was not  actionable because it fell within the SCA’s “authorized user” exception, the result may have been  different had the hospital solicited the posts or previously demanded access to the plaintiff’s  account.12

Social Media May Implicate the National Labor Relations Act

Finally, companies should be aware that basing employment decisions on employee social media  activity, or enacting social media policies governing employee social media use, may implicate the  federal National Labor Relations Act (“NLRA”).13 Since August 2011, when then National Labor  Relations Board (“NLRB”) General Counsel Lafe Solomon issued the first of three reports discussing  employee social media use and the NLRA,14 the NLRB has proactively applied the NLRA to cases  involving social media.

For example, in Butler Medical Transport LLC,15 two former employees filed charges with the NLRB  after being terminated for making Facebook posts implicating their employment. The first employee  posted on a former co- worker’s Facebook wall that he should “think about getting a lawyer and  taking [Butler Medical] to court” and “contact the labor board too.” The second employee, during  his shift, posted disparaging and vulgar remarks about his employer concerning the condition of his  work vehicle. In reviewing the terminations, an NLRB Administrative Law Judge (“ALJ”) concluded  that the first employee’s posts were protected under the NLRA, but upheld the second employee’s  termination because his post was maliciously untrue.

Although Butler Medical argued that the first employee’s posts were not protected, because they  were accessible to the company’s customers and other third parties, the ALJ cited long- standing  NLRB precedent that employee conduct does not lose NLRA protection merely because it may have an  adverse effect on the company’s business. According to the ALJ, the posts were protected because  they were a response to a former employee’s post about being fired for commenting to a patient  about the condition of the company’s ambulances, and the condition of company vehicles was a matter  of mutual concern. With regard to the second employee, the ALJ concluded that the posts were not protected because they were maliciously untrue. Not only did  company maintenance records show that the ambulance had not broken down when the second employee  made his post, the employee later testified at an unemployment insurance hearing that his post  referred to a private vehicle. Therefore, because the employee made the posts with knowledge they  were false, the posts were not protected under the NLRA.

Finally, the ALJ concluded that the company’s social media policy, under which the first employee  was terminated, was also unlawfully overbroad. The policy, which included a promise by employees to  “refrain from using social networking [sites] which could discredit Butler Medical Transport or  damage[] its image,” violated the NLRA because the employees would reasonably construe its language  to prohibit protection Section 7 activity. Moreover, the ALJ emphasized there was no evidence that  the company had effectively communicated a narrowed interpretation of the policy to its employees.  Therefore, because the policy had been applied to restrict the Section 7 rights of  the first  employee, it was unlawful.

As Butler Medical Transport LLC demonstrates, along with other recent NLRB social media decisions,  companies should be mindful that employment decisions that are based on social media activity may  implicate the NLRA. Not  only does the NLRB currently have several social media cases pending,16  the NLRB Chairman recently emphasized that “the social media cases have been very helpful in terms  of raising the public’s awareness of the NLRB.”17 Therefore, companies should stay apprised of the  NLRB’s social media decisions to better understand when employee social media activity will be protected concerted activity. 

Conclusion

The law of social media is constantly evolving. Given how strong the reaction of state legislators has been to social media privacy concerns, recent judicial decisions involving employment discrimination and SCA claims based on social media activity, and the NLRB’s recent focus on social media, this is a rapidly developing area to which companies should pay close attention.