EMPLOYEE USE OF SOCIAL MEDIA
Kalley Aman is an attorney with Buchalter in Los Angeles, California, Ms. Aman focuses on labor and employment law and litigation. A resident of Manhattan Beach, California, Kalley Aman has given presentations and published on the issues surrounding an employer's regulation of employee use of social media.
Rules covering what employers can and cannot do with respect to employee communications on social media accounts arise primarily out of two federal laws: The Stored Communications Act (SCA) and the National Labor Relations Act (NLRA).
The SCA prohibits employers and other parties from accessing employees' communications posted on a third-party provider. The only exception is when the employer has reason to suspect on-the-job misconduct or unlawful behavior.
The NLRA allows employees to participate in and establish unions, and penalizes employers from interfering with these activities.
Some states have applied the SCA to prevent employers from accessing employees’ social media accounts. For instance, California law bans employers from asking for user names and passwords from employees and job applicants. Employers cannot require employees to access social media in their presence or reveal the contents of such communications to their employers.
Although the NLRA was enacted in 1935, it has been interpreted to extend to modern means of communication, including social media. Importantly, the NLRA applies to employees who are not unionized.
To comply with state and federal laws addressing employer regulation of employee social media communications, employers should not maintain policies that broadly regulate employee use of social media. Rather, employers should develop clear and specific policies that prohibit abusive or harassing social media behavior towards co-workers and disclosure of company trade secrets. Employers should be careful to not maintain policies that could be interpreted as inhibiting employees' right to organize.
Rules covering what employers can and cannot do with respect to employee communications on social media accounts arise primarily out of two federal laws: The Stored Communications Act (SCA) and the National Labor Relations Act (NLRA).
The SCA prohibits employers and other parties from accessing employees' communications posted on a third-party provider. The only exception is when the employer has reason to suspect on-the-job misconduct or unlawful behavior.
The NLRA allows employees to participate in and establish unions, and penalizes employers from interfering with these activities.
Some states have applied the SCA to prevent employers from accessing employees’ social media accounts. For instance, California law bans employers from asking for user names and passwords from employees and job applicants. Employers cannot require employees to access social media in their presence or reveal the contents of such communications to their employers.
Although the NLRA was enacted in 1935, it has been interpreted to extend to modern means of communication, including social media. Importantly, the NLRA applies to employees who are not unionized.
To comply with state and federal laws addressing employer regulation of employee social media communications, employers should not maintain policies that broadly regulate employee use of social media. Rather, employers should develop clear and specific policies that prohibit abusive or harassing social media behavior towards co-workers and disclosure of company trade secrets. Employers should be careful to not maintain policies that could be interpreted as inhibiting employees' right to organize.
