Tag: social media

March 14, 2024

New York Law Limits Employer Access of Employee Social Media Accounts

As of March 12, 2024, New York state law protects employees from having their employers access their social media. The protections of employee social media accounts are not absolute. There are parameters and exceptions. Employers should familiarize themselves with the new restrictions.

Personal Employee Social Media Accounts

The law protects employees’ “personal accounts”. This term is defined to mean “an account or profile on an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations that is used by an employee or an applicant exclusively for personal purposes.”

Request for Access Prohibited

The new Section 201-i of the New York Labor Law prohibits employers from requesting, requiring, or coercing any employee or applicant to do any of the following regarding personal social media accounts:

Disclose any password or other authentication information;
Access their personal account in the employer’s presence;
Reproduce any photographs, video, or other information contained in a personal account that was accessed through the above prohibited means.

Employers cannot discipline or penalize employees who refuse to provide any of the above information. Similarly, they cannot refuse to hire an applicant on that basis.

Permitted Access

The rules are different for work accounts. Employers may require employees to provide usernames and passwords for “accessing nonpersonal accounts that provide access to the employer’s internal computer or information systems.”

There are several additional exceptions for accounts and devices used for business purposes. For example, employee access to certain websites may be restricted while using company equipment. However, the employer must provide prior notice and the employee must agree to the restriction. Yet, as an “exception” to the general prohibitions, it’s not clear that the law actually imposes an affirmative obligation for employers to obtain such permission as a general matter.

The law also does not prevent management from connecting with employees through social media or viewing information that is voluntarily shared or publicly available through the social media platform.

Workplace Impact

Similar legislation was first introduced in the early days of social media well over a decade ago. In that sense, it is surprising New York has waited this long to get into the game. However, most employers have long since abandoned the types of measures that would be most likely to violate the new prohibitions. Nonetheless, it is important that you understand that there are now express parameters regarding employee personal social media accounts in New York.

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November 8, 2019

Social Media Policies Still Uncertain for Employers

In August 2019, the National Labor Relations Board published an advice memorandum about social media policies. The September 5, 2018 memo addressed particular provisions of written policies of CVS, the retail drug store chain. Although aimed at one employer’s specific policies, the advice memo provides helpful guidance for other companies. But, it doesn’t create absolute certainty on all employee social media issues.

Legal Backdrop – NLRA

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA). The NLRA allows private-sector employees to form unions. It also gives employees the right to engage in other activities for their mutual protection. Fundamentally, that means protection from their employers. This includes rights to communicate regarding terms and conditions of employment–things like wages, hours, and work conditions. These are known as “Section 7” rights, referring to the applicable NLRA provision.

“Social media” emerged as a technological and cultural phenomenon in the last part of the 2000s decade. Employers soon wondered how the new communication methods would affect the workplace. They started drafting policies and guidelines for employees–what they could or (more often) couldn’t do online.

Perhaps surprisingly, the NLRB stepped in and started scrutinizing social media policies. The agency began finding portions of the policies unlawful under the NLRA. It said that the employers’ new prohibitions would arguably deter employees from engaging in communications about work that they had a right to participate in under federal law.

After a political shift in Washington following the 2016 election, the NLRB started to change its tune. In a December 2017 decision involving The Boeing Company, the NLRB announced a less restrictive view on employer policies, including social media parameters.

Current Social Media Policy Standard

The 2017 Boeing case established a new test for judging whether employee policies violate the NLRA.

If a rule is “facially-neutral,” but could be read to violate the NLRA, the NLRB will weigh two considerations:

The nature and extent of the potential impact on Section 7 rights; and
Legitimate business justifications associated with the rule’s requirements.

The NLRB observed that this standard creates three possible categories of such rules.

Category 1 Rules

These are rules that are lawful for employers to maintain as a general matter, either because:

(a) The rule does not prohibit or interfere with the exercise of Section 7 rights; or

(b) Even though the rule has a reasonable tendency to interfere with Section 7 rights, the potential adverse impact on those protected rights is outweighed by employer justifications associated with the rule.

This includes rules requiring “harmonious relationships” and “civility” in the workplace.

Category 2 Rules

These are rules that require individualized scrutiny in the specific case at hand. The NLRB will look at relevant circumstances to balance the impact on Section 7 rights against any legitimate business justifications.

Category 3 Rules

These are unlawful rules where the Section 7 implications cannot be justified by business concerns.

Prohibitions on employees discussing wages and benefits with each other fall into this category.

Lawful Social Media Rules

Here are some of the types of rules that the NLRB’s Division of Advice deemed acceptable in CVS’s situation:

Employees who speak on social media about the company “in any way” must make it clear they are a company employee but are not speaking on behalf of the company.
Use of any company or brand name or logo as part of a social media account requires prior company approval.
Employees may not post anything “discriminatory, harassing, bullying, threatening, defamatory, or unlawful.”
Taking or sharing photos from non-public areas or internal meetings is prohibited.
Employees may not post “content, images or photos” that they don’t “have the right to use.”
Internal communications and information must be kept confidential.
Employees must use a disclaimer if they speak about the company on social media.
Employees cannot give professional recommendations or references regarding current or former company employees through social media posts.

In the past, the NLRB likely would have found many of these rules to violate the NLRA. While the Division of Advice’s “blessing” of these rules is a good sign for employers, the memo does not guarantee how the NLRB would ultimately rule on any particular rules. The specific words and context of social media policies can change the analysis. As can the composition of the NLRB Board.

Unlawful Social Media Rules

The NLRB advice memo ruled that at least portions of the following types of rules were unlawful as used by CVS:

Employees may not disclose “employee information” through social media.
Employees who mention their work for the company on social media must disclose their real name and job title.

The Division of Advice stated that the rule about employee information could be problematic because employers cannot prohibit employees from sharing “employee contact information and other non-confidential employment-related information.”

It indicated that the rule requiring employees to self-identify goes against NLRB precedent. Traditionally, employees have the right to engage in collective action without identifying themselves. But, the Division of Advice noted, the employer can otherwise avoid some of its legitimate concerns by requiring even unidentified employees to acknowledge their employment status and disclaim that they are not speaking on behalf of the company.

The full NLRB advice memo regarding the CVS social media policies is available here.

Reviewing Your Social Media Policy

The pendulum has definitely swung back in employers’ favor on this subject. Accordingly, this might be the right time to review your social media policies, assuming your company already has one. If you don’t have one, but want one, then these latest developments can help guide you. But, in either case, most employers shouldn’t rush to impose the most restrictive policy possible without careful consideration of the implications.

First, you should evaluate what employee social media issues your company has had in the past. If none, then your existing policy (or even the absence of a policy) might be sending a sufficient message.

Second, does the nature of your business generate specific impetus for different social media policies than what you currently have? Relevant factors include the nature of your workforce, the prevalence of highly confidential information, the use of social media for conducting positive business activities, etc.

Third, how will your employees respond? Most people by now are accustomed to using social media in their daily lives. Any efforts to curtail their activities could make employees nervous, if not angry. So make sure the justification for greater restrictions justifies the potential backlash.

Finally, if you do want to revise your social media policies, seek legal advice. You can’t simply rely on what the NLRB’s Division of Advice said was okay for CVS. This is an area where every word matters. And, even then, some risk remains. You should have a clear understanding of these risks and attempt to mitigate them in advance.

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January 25, 2018

Employment Discrimination Through Facebook Ads

On December 20, 2017, the Communications Workers of America filed a federal lawsuit in California claiming that various employers had discriminated against job applicants based on age. The named defendant employers are T-Mobile, Amazon, Cox Communications, and Cox Media Group. CWA contends these companies (among others) unlawfully targeted candidates through Facebook ads. Several individuals joined CWA as plaintiffs in this proposed class action.

In addition to the four named defendants, the lawsuit purports to also “bring this action . . . against a Defendant Class of hundreds of major American employers and employment agencies that, upon information and belief, routinely exclude older workers from receiving their employment and recruiting ads on Facebook, and thus deny older workers job opportunities.” The lawsuit indicates that the plaintiffs intend to identify additional defendants “through early discovery in this action or a pre-discovery exchange of information with Facebook.”

Prefer a free webinar? Try Legal Risks of Social Media in Hiring.

Plaintiffs’ Allegations

These statements from the lawsuit reflect the theory behind the plaintiffs’ claims:

“These companies eliminate older workers from receiving job ads by specifically targeting their employment ads to younger workers via Facebook’s ad platform.”
“Upon information and belief, nationwide, large and small employers alike apparently believe that it is appropriate and desirable to exclude American workers from job opportunities solely based on their age.”
“When selecting the population of Facebook users who will receive employment ads, employers and employment agencies routinely focus their ads on prospective applicants who are in age bands that exclude many workers who are 40-years-old or greater, e.g., workers who are ‘ages 18 to 38,’ ‘ages 22 to 45,’ or ‘ages 21 to 55,’ thereby preventing older workers from receiving advertising and recruitment for job opportunities, upon information and belief.”
“Upon information and belief, Facebook does not stop an employer or employment agency from selecting a younger age range (such as ages 18 to 40) that discriminates against older workers in setting the population that will receive an employment ad via Facebook.”
“Facebook provides advertisers the ability to send employment ads to individuals who fall into the following categories related to a younger age group or categories that ordinarily would be a proxy for younger workers: Young & hip – a group of millions of people “whose activities strongly suggest they are young and hip” (according to Facebook); and Millennials – a group of millions of people “who have expressed an interest in or like pages related to Millennials” (according to Facebook).”

Potential Defendants

The lawsuit describes as defendants:

All employers or employment agencies who annually employ at least 2,500 employees or annually refer for employment at least 2,500 employees, and have purchased or sent employment-related Facebook advertisements that placed an upper age limit on the population of Facebook users that was eligible to receive an advertisement, at any time from the earliest date actionable under the limitations period applicable to the given claim, until the date of judgment in this action.

A Federal Complaint for the Facebook Age

The complaint document itself demonstrates a modern approach to federal court litigation. It includes screenshots of some of the contested Facebook ads pasted right into the standard pleading paragraphs.

One such screenshot is a “Why am I seeing this ad?” window. It indicates, “There may be other reasons you’re seeing this ad, including that T-Mobile Careers wants to reach people ages 18 to 38 who live or were recently in the United States.”

The lawsuit does not specifically name Facebook as a defendant. However, it uses Facebook’s own job posting as evidence of the capability to target job candidates by age. (At least the Facebook example shown suggests a larger age range, from 21 to 55!)

Age Discrimination

For procedural reasons, the CWA lawsuit only asserts claims under various state laws that prohibit age discrimination. But the plaintiffs reference the federal Age Discrimination in Employment Act in summarizing the legal/policy basis for their claims.

The ADEA prohibits employers with 20+ employees from discriminating based on age among employees 40 years old or older. It includes this provision specific to job advertisements:

Printing or publication of notice or advertisement indicating preference, limitation, etc.

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.

Not Just Age Discrimination

Age isn’t the only characteristic upon which applicants have alleged employment discrimination through Facebook ads. On November 3, 2016, a similar class action lawsuit was filed in the same California federal court. Facebook is the only named defendant in that case, which alleged both employment- and housing-related discrimination based on race, color, religion, sex, familial status, and national origin.

The employment discrimination claims allege violation of Title VII of the Civil Rights Act of 1964. Besides Facebook, this lawsuit uses “Doe Defendants 1 to 9,999” to refer to purported “entities that have used Facebook’s Ad Platform to illegally discriminate . . . with advertisements for employment or housing.”

Like the ADEA, Title VII has a specific provision regarding job advertisements:

Printing or publication of notices or advertisements indicating prohibited preference, limitation, specification, or discrimination; occupational qualification exception

It shall be an unlawful employment practice for an employer . . . to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin, except that such a notice or advertisement may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.

Facebook and the plaintiffs are currently mediating this lawsuit.

Avoiding Employment Discrimination Through Facebook Ads

We don’t have court decisions on these claims yet. Nonetheless, most employers should probably avoid limiting publication of their online job postings to certain age groups. Targeting individuals 18+ may be acceptable for many jobs. But there would be few situations where an upper age limit would be a risk-free approach.

Likewise, limiting ads based on gender, race, religion, etc., is also a risky strategy. Perhaps a compelling (and potentially non-discriminatory) business case can be made. But applicants may still follow the lead of these cases and challenge online recruiting practices that appear to exclude them.

As the litigation develops in these and other cases, perhaps some additional leeway may emerge as reasonable. For example, is it okay to run separate ads for different age groups, as long as no-one is excluded? Would the employer need to spend an equal amount on all age groups? Is that even possible to guarantee?

We may also see Facebook change its approach to ad targeting because of the discrimination claims. That could have implications beyond recruiting, potentially affecting all forms of online advertising.

Learn more about employment discrimination through Facebook Ads and other recruiting issues:

Check out my webinar on Legal Risks of Social Media in Hiring!