CalChamber Identifies Additional Job Creator Bill

The California Chamber of Commerce identified a new job creator bill that will help to limit frivolous employment litigation by affirming an employer has no duty to investigate social media websites regarding applicants or employees and prohibits an employer from requiring an employee to disclose any personal password for social media Internet sites.

AB 1844 encourages job growth through clarifying employers’ duties, or lack thereof, with regard to social media and social networking sites as applied to applicants and existing employees. This bill is a part of CalChamber’s 2012 Renew Agenda and will help position California for economic recovery.

News of job interviewers demanding Facebook passwords from applicants caused a media storm. This issue has been the subject of numerous news articles, plus a previous HRWatchdog blog post and, most recently, an editorial in The Sacramento Bee.

Lack of Clarity

With the explosion of social media and social networking Internet sites, there is ambiguity as to whether an employer has an affirmative duty to investigate and explore all available sites when conducting a background check on an applicant or even an existing employee. If an employer engages in such an investigation, it is also unclear as to how many sites the employer must review before the employer’s actions will be considered “reasonable” or sufficient to preclude any claim of negligence for hiring the applicant or promoting the employee.

Visit CalChamber.com for the full story, including CalChamber recommendations for employers.

Staff Contact: Jennifer Barrera, Gail Cecchettini Whaley

Asking For Facebook Passwords Is Risky

News of job interviewers demanding Facebook passwords from applicants caused a media storm. Top news outlets published numerous reports about job applicants being asked to give their Facebook passwords to hiring managers during job interviews so the potential employer could inspect personal profiles on the applicants’ Facebook pages.

California employers should think twice about engaging in this practice during the recruiting and hiring process.

As discussed in CalChamber’s social media white paper (sign in required), peeking at an applicant’s Facebook page could reveal information to the person conducting the interview that the person is prohibited from asking about, such as religious affiliation or sexual orientation.  

What if the employer learns from the Facebook page that the applicant is pregnant? The employer now opens itself up to a discrimination lawsuit if the employer does not hire the applicant. The applicant may argue that the reason she was not hired was because the employer learned she was pregnant from her Facebook profile and discriminated against her. Further, an individual’s privacy rights under the California Constitution may be violated.

Facebook Chief Privacy Officer Erin Egan issued a statement warning that Facebook may take action against employers who demand passwords. “We’ll take action to protect the privacy and security of our users, whether by engaging policymakers, or, where appropriate, by initiating legal action … ,” Egan said, citing concerns that the demands violate Facebook’s terms of service. 

Two U.S. Senators asked the federal Equal Employment Opportunity Commission and the U.S. Department of Justice to investigate whether the practice of demanding passwords violates federal laws. See the full letter. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can check out the HR Library’s social media pages on HRCalifornia.com (sign in required).

The on-demand version of our Technology and the Workplace webinar is available for purchase. The webinar covers policy suggestions on social media in the workplace, privacy concerns and the current status of social media claims before the National Labor Relations Board.   

Not a member? Our Making Sense of Social Media in the Workplace white paper is available as a free download (registration required).

Updated CalChamber Social Media White Paper

HRWatchdog blogged a couple of days ago that employers keep running into social media trouble.

Perhaps the single biggest trouble spot is disciplinary actions. The typical scenario is this:

• While not working, an employee posts a comment to his/her personal Facebook page about his/her workplace or something his/her employer did. 
• The employer finds out about the post and decides to fire the employee.
• The employee files a complaint about his/her termination with the National Labor Relations Board (NLRB).
• The NLRB reviews the situation, and finds that the employer acted unlawfully.

Want to learn more? CalChamber members can read an updated white paper, Making Sense of Social Media in the Workplace, on HRCalifornia . Members will have to sign in to download the white paper.

Not a CalChamber member? Sign up for a 15-day Free Trial. Once you complete the sign-up process, you can access the white paper.  

More Social Media Guidance From the NLRB

In 2011, the National Labor Relations Board (NLRB) increased its oversight activity relating to employer disciplinary actions for social media postings made by employees. HR Watchdog blogged frequently in 2011 on the NLRB’s activity in this area. 

Yesterday, the NLRB’s General Counsel issued its second report describing 14 social media cases reviewed by its office. The NLRB’s first report on 14 other social media cases was released in August, 2011. 

The purpose of this second report, as stated by the NLRB, is to provide further guidance to labor and employment law practitioners and HR professionals — many of whom grapple with how to handle employees who use social media to air workplace complaints or simply bad-mouth the company. 

Seven of these 14 cases involve questions about an employer’s social media policies. Five of the social media policies were found to be overly broad and unlawful. 

The problem occurs when a social media policy is written so broadly that it prohibits employees from discussing wages or working conditions. Employees, in both union and nonunion workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities, including discussing working conditions, pay or other work-related issues.

If those discussions occur using social media accounts (such as an employee’s Facebook or Twitter account), the discussions may be protected under the NLRA.

The NLRB also stated that it intends to develop a practice of tracking all social media cases and developing a consistent approach. The Acting General counsel asked all regional offices to send cases which they believe to be meritorious to the NLRB’s Division of Advice in Washington, D.C.

The NLRB noted that its report represents its “interpretation” of the NLRA as it applies to social media communications and that some of these decisions are currently pending before the Board. The Board’s eventual determinations in those pending cases will provide further guidance as the law develops.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber can help. Our Employee Handbook Software includes a social media policy that complies with federal and state laws. Sign up for our Technology in the Workplace webinar on February 16, 2012, during which our legal experts will discuss social media policies in the workplace. 

NLRB Judge Finds Firings Based on Facebook Posting Unlawful

HRWatchdog has frequently blogged on the increased activity by the National Labor Relations Board (NLRB) as it relates to employer discipline for social media postings made by employees. In the past year, the NLRB has seen an increase in the number of charges related to social media and has filed several complaints against employers who discharged employees for social media postings in which the employees complained about workplace conditions.

Employees, in both union and non-union workplaces, have the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted activities. Such activities might include two or more employees discussing working conditions, pay or other work-related issues. The typical example of a protected activity is when employees gather around the water cooler to complain about their supervisor. These days, that water cooler conversation might take place online – on Facebook, Twitter or some other social media outlet.

There has been some uncertainty for employers as to when social media postings will be regarded by the NLRB as a protected concerted activity and when employers can and cannot take disciplinary action against employees for their social media postings. Last month, the NLRB's Office of General Counsel issued a report outlining some of the social media cases. The report detailed the outcome of the NLRB's investigation into these cases. The purpose of releasing the document was to provide guidance to labor law counsel and human resource professionals.

Now, for the first time, a NLRB Administrative Law Judge (ALJ) has weighed in on the issue after a full hearing. The ALJ ruled against a Buffalo non-profit organization and found that the organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.

An employee at Hispanic United of Buffalo, Inc. (HUB), a non-union employer, posted the following on her Facebook page: “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow employees how do u feel?” Several other HUB employees then went on Facebook and commented on the original post. These comments expressed negative opinions about Cruz’s criticism, defended employee job performance, and complained about working conditions. The comments were often sarcastic and some used profanity.

None of the posts were made during work hours and none were made using a work computer. After learning of the posts, HUB discharged the employees who had participated, claiming that the comments constituted harassment of Lydia Cruz, who was originally mentioned in the post.

The ALJ disagreed with HUB’s position and found that the Facebook discussion was protected because it involved a discussion among coworkers about the terms and conditions of employment, including job performance and staffing levels. The ALJ noted that expressions related to defense of job performance are a protected activity, especially where the employees could reasonably believe that they would need to defend their job performance to management.

The ALJ ordered reinstatement of the five employees and also awarded the employees back pay because they were unlawfully discharged.

The ALJ also found that the employees did not engage in any conduct that forfeited their protection under the NLRA. The ALJ noted that there was not a violation of HUB’s anti-harassment policy because there was no evidence that the complaining individual was harassed and no evidence that she was harassed based on a protected characteristic.