Tempted to Ask for An Employee’s Personal Password? Just Say No

By Eric W. Tiritilli

If you’ve ever had the inclination to ask a job applicant or employee for their log-in information or passwords to their personal accounts, you should run – and not walk – away from such ideas.  Not only is requiring an employee to reveal passwords to their personal accounts unlikely to win any points with the employee, it will become illegal in Nebraska once a bill passed by the Nebraska legislature is signed by the Governor.

Legislative Bill 821 will make it illegal to require an employee or an applicant to disclose their user name or password to a personal internet account, to require them to log into their personal account in front of the employer, to require them to change their personal account settings, to add someone (including the employer) to their personal account or to penalize an employee for failing to take such actions.

LB 821 does not prohibit employers from maintaining polices regarding the use of the employer’s equipment and internet (but don’t forget that the NLRB has had a lot to say on these topics).  Nevertheless, the new law would prohibit an employer from intruding on the “personal” internet accounts of an employee.  So, if you’ve ever been tempted to ask an employee for a peek at their personal internet accounts – just say no!

© 2016 Vandenack Williams LLC
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New Nebraska Law Limits Employer Access to Employee or Applicant’s Social Networking Accounts

On April 13, 2016, the Nebraska legislature passed LB 821, sending the Workplace Privacy Act to the governor for signature. Recently, with over 43% of employers using social networks to research employees and applicants, a significant debate occurred pertaining to the privacy an applicant should have in regards to the information on these sites. In light of the failed attempts to regulate at a federal level, almost half the states have enacted legislation that deals with the same issues as Nebraska’s Workplace Privacy Act.

The new law prohibits an employer from requesting or requiring the employee, or even an applicant, from turning over passwords and usernames for social networking accounts. Similarly, the law also prohibits the employer from requesting access to the account via the employee or applicant logging on for them. Moreover, these protections cannot be waived by the employee, nor should an employer ask for a waiver as a condition of employment.

While the new law provides protection to an employee or applicant from giving unfettered access to social networking accounts, it does not change the employer’s access to information already in the public domain. However, should an employer violate this law, the employee or applicant now has recourse and can file a civil action within one year of the violation.

© 2016 Vandenack Williams LLC
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Facebook and the Workplace: Employee Rights and the Law

By Eric W. Tiritilli.

More and more employees use social media, including Facebook, to discuss work – sometimes in fairly unflattering terms.  This has caused stress for employers who want to maintain their good name, but also don’t want to violate the National Labor Relations Act (“NLRA”) by punishing employees who vent their spleen on social media.  Employers’ concerns are well placed. One recent example involves an employer who discharged an employee after he “liked” a negative comment on Facebook concerning an alleged tax withholding issue involving the employer.  The employer was found to have violated the NRLA.

In Three D, LLC, the National Labor Relations Board explained that because the Facebook discussion involved employees “looking toward group action to encourage the employer to address problems in terms or conditions of employment [and] not to disparage its product or services or undermine its reputation, the communications [were] protected.” The employee who “liked” the post was expressing agreement with the post and was protected by the NLRA. The discharge was, therefore, impermissible.

The law in this area is always evolving, but employers should be aware of the requirements and protections of the NLRA when making disciplinary decisions related to employees’ social media activities.

© 2014 Parsonage Vandenack Williams LLC

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Should My Employee Manual Have Facebook or Social Media Policies?

A Video FAQ with M. Thomas Langan II.

The use of social media in the workplace continues to increase. To help protect your business, a good idea may be to adopt social media policies for your company.

The first thing a social media policy should do is define social media. This should include social networking sites, blogs, e-commerce sites, video sharing websites, but also leave the definition open to include future social media platforms.

Second, the policies should follow a general employee code of conduct. Here it should prohibit unlawful conduct, sexual harassment or the disclosure of confidential information on social media platforms.

Third, you should require employees to separate their workplace identity from their personal identity so when employees use social media, they should make it clear when they are representing your company and when they are representing their personal identity.

When drafting these policies, you should make it clear that it shouldn’t be overreaching or in any way hamper certain employee rights. For example, they should not prohibit talking negatively about the company or talking about wages in general as this could implicate several employment laws.

© 2014 Parsonage Vandenack Williams LLC

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SEC Provides Social Media Guidelines for Investment Advisers

The SEC recently provided guidance regarding the use of social media by investment advisers after charging an Illinois investment adviser with fraud resulting from an offering of more than $500 billion in fictitious securities through various social media sites.  Pursuant to the Advisers Act Rule 206(4)-7, investment advisers are encouraged to adopt and occasionally review the effectiveness of their social media policies and procedures (see http://www.sec.gov/about/offices/ocie/riskalert-socialmedia.pdf for more information).

Since the use of social media by an investment adviser must comply with federal securities laws, including recordkeeping, compliance, and antifraud provisions, the SEC suggests that those utilizing social media adopt policies that address multiple factors, including, but not limited to: usage guidelines, criteria for participation, content standards, approval of content, and monitoring.   Special attention should be given to third-party content and recordkeeping.  Investment advisers must retain all social media communications containing information satisfying their recordkeeping obligations for at least five years.

Finally, it should be noted that the SEC predominantly regulates investment advisers with more than $25 million in client assets, leaving the regulation of other investment advisers to the states in which they reside.  Some states, including Massachusetts, have recently released similar guidelines regarding the use of social media by investment advisers, which state-registered investment advisers should be aware of.

© 2012 Parsonage Vandenack Williams LLC

For more information, contact info@pvwlaw.com

Should Your Business Adopt a Social Media Policy?

Many businesses can use social media as a valuable tool.  Social media helps to create and communicate a “brand personality”.  Social media can also help generate new clients and business connections.

When using social media to advance business goals, employees serve as an asset because they know your products and/or services better than anyone else.  You want to take advantage of your employees’ experience and knowledge, but at the same time, you need to set rules and boundaries governing the use of social media.

Consider the following:

  •  Who manages your social media?  It is best to have one person managing the use of social media, governing what gets posted and when.
  • Are employees allowed to visit or communicate on personal social media sites during work hours?
  • Does the business retain the right to monitor employee personal and business postings?  You should retain the right to monitor any postings made by employees during business hours and any postings made about the business at all times.

It is important to focus on what employees can do rather than what they can’t do.  It is also important to develop a customized social media policy specific to your business and objectives.

© 2012 Parsonage Vandenack Williams LLC

For more information, contact info@pvwlaw.com