Tag Archives: facebook

Maryland Bans Employers From Requiring Social Media Passwords

Becoming the first state in what looks like a trend, Maryland has enacted a law, Senate Bill 433, that prohibits employers from requesting or requiring that employees or applicants hand over their passwords to social media accounts and other personal online accounts. The California legislature is currently considering a similar law, as are a handful of others. And the federal government isn’t far behind: Senators Schumer and Blumenthal have asked the Department of Justice and the Equal Employment Opportunity Commission to investigate whether asking employees or applicants for their passwords violates current federal law.

It’s fitting that Maryland was first in line: It was the case of Robert Collins, who was asked to provide his Facebook password during a recertification interview for his job at the Maryland Department of Corrections, that first publicized this issue. (Here’s my previous post about his case.)

No matter how people feel about whether employers should consider public posts in making job decisions, most everyone agrees that information an employee takes steps to shield should remain private. As Senator Schumer put it, requiring applicants to hand over their Facebook passwords is akin to asking applicants “for their house keys or to read their diaries.”

Not to be left behind, Facebook has also weighed in on the issue by making it a violation of the site’s code of conduct to “share or solicit a Facebook password.” In a statement by Erin Egan, the site’s Chief Privacy Officer, Facebook says that it has “worked really hard to give you the tools to control who sees your information”; she also warns employers that they could expose themselves to “unanticipated legal liability” by demanding user passwords.

As more states consider and pass these bills, employees and applicants would be wise to take advantage of the protection by scrubbing their public online identity and shielding their private information behind a password. Apparently, however, that’s easier said than done. A recent study (reported on ZDNet) revealed that users find Facebook’s privacy policies incomprehensible — in fact, harder to understand than government notices, credit card agreements, and even bank rewards program documents. (The good news for Facebook: Users found Google’s privacy policies even more difficult to understand.) Perhaps that explains why 13 million Facebook users, according to a recent Consumer Reports projection, either aren’t aware of Facebook’s privacy settings or haven’t tried to use them.

Employee Photos on the Company’s Social Media Page?

This week, we got an interesting question via our Facebook page: A company that has recently established a social media presence wants to know whether it’s legal to post pictures of employees at company functions. As usual, the answer is “it depends.”

A number of states have laws that prohibit the use of someone’s likeness without that person’s consent for commercial purposes. The whole point of a company’s social media pages is ultimately to boost the bottom line, whether that goal is achieved through selling more products, attracting outstanding employees, building a reputation for humor, intelligence, and trustworthiness, or other means. Companies that post candid employee photos or photos of employees doing their jobs, serving the community, and so on, do so to make a good impression on potential employees and customers. So I think it’s pretty clear that this is a commercial purpose.

Employers who want to use employee photos can simply ask for the employee’s consent. Like all other employment agreements, this one would best be put in writing, and should spell out what the employer intends to do. Is the company going to post an occasional photo of employees doing their jobs? What about employees enjoying themselves at after-hours company functions? Is the company going to use the employee’s image in actual advertising materials, such as brochures or a commercial? Will the employee have the opportunity to see the photo first? Clearly, an employee might be more comfortable with some photos than others: A smiling photo of an employee helping a customer might be more welcome than a candid photo of the employee’s bathing suit riding up at the company’s Fourth of July picnic at the lake.

Most companies that ask employees to consent to use of their image find that a few are unwilling to agree. I’ve been asked about this a couple of times by folks who assume that the employee who wants to opt out is camera shy, doesn’t like how he or she looks in pictures, or has some sensitivity about appearance. That may be the case, but often the real objection is more serious: The employee has been a victim of stalking or violence, or fears becoming one. This is not information the employee should have to share with the employer in order to get out of the company’s Facebook photo album.

And some employees have a philosophical objection that goes to the very nature of the employment relationship. That argument goes like this: The employer pays employees for their labor; it does not own their image. When you look at it this way, throwing a reluctant employee’s actual personal appearance into the pile of things that paycheck is supposed to cover does seem like an overreach.

The best solution to this dilemma is to ask for consent before using employee photos and to allow employees to withhold their consent, if they wish. Don’t require employees to explain their reasons. Simply find another photo, of employees who are more than happy to show up on the company’s social media page or in its other marketing materials, and move on.

Social Media Freedom “More Important Than Salary” to Generation Z

A couple of weeks ago, Cisco released its second annual Cisco Connected World Technology Report — and the findings were truly eye-opening. (Here’s Cisco’s press release, which includes the highlights; they were also featured in the news article “Millenials Put Tech Freedom Before Salary.”) For the report, Cisco surveyed more than 2,800 college students and young professionals in 14 countries — the so-called “millenials” or Generation Z. Given the generally crummy state of the economy, I thought those who were looking for jobs (or soon to be ) would list their primary concerns as, well, just whether they’d be able to find work, along with salary, salary, and salary. (As in, is it enough to get my own place, or will I be living with my parents until the end of time?)

But no. According to this survey, it’s all about social networking, portable electronic devices, and working from home or other remote locations. Here are a few choice bits:

  • More than half said that if their company banned access to social media sites from work, they would either turn down a job offer or find a way to get around the prohibition.
  • 40% of college students — and 45% of young professionals — said they would accept lower paying work if it offered more flexibility regarding social media access, mobility, and device choice.
  • About 70% said they should be allowed to access personal sites and social media sites using company-owned devices.
  • About 30% said they should have the “right” to work remotely once they get work; 70% believe it unnecessary to be in the office regularly, as long as they show up for important meetings (I’m with them on that).

What to make of these findings? On the one hand, it gives employers a blueprint for attracting the best applicants of the youngest working generation: Let them work remotely, access social media sites from work, choose their mobile devices, and use your equipment for personal as well as business reasons. On the other hand, there are some fairly sound arguments to be made for having rules in place that separate business from personal, at least in electronic devices. Want to be liable for employee overtime you didn’t even know about? Let employees do work using their personal electronic devices. Interested in exposing yourself to personal injury lawsuits? Let employees use their company-issued smart phones for personal calls and texts, then wait for them to do it while driving. Sexual harassment lawsuits more your thing? Encourage managers to friend employees on Facebook, then wait for the nude pics to show up. The truth is that unless and until the legal climate changes to accommodate the blurring of personal and professional lives that younger generations embrace, it might be tough to offer the types of electronic freedom these future workers of the world want.

NLRB: Non-Union Employer Shouldn’t Have Fired Employees Over Facebook Posts

As I’ve discussed in a couple of previous posts, the National Labor Relations Board (NLRB) has been very active recently in the area of social media. Not only by creating its own accounts (like a Facebook page), but also by going after employers who discipline and fire employees over their online posts. Last week, an administrative law judge for the NLRB issued the Board’s first Facebook decision. (According to the NLRB’s press release about the case, this is the first Facebook case to go all the way through a hearing and a decision by a judge.) And here’s a red flag for the majority of employers whose employees aren’t unionized: The case was against a non-union employer.

In the case, brought against the nonprofit group Hispanics United of Buffalo (HUB), a group of employees had posted comments to a coworker’s personal Facebook page (the employees used their own computers and posted on their own time; there was no allegation that they used the employer’s resources). A HUB employee, Ms. Cruz-Moore, had apparently been criticizing the performance of her coworkers. Another employee, Ms. Cole-Rivera, posted this comment on her own Facebook page about it: “Lydia Cruz a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?” A group of coworkers responded, mostly by saying that they worked hard and that clients who complained wanted services the group didn’t provide. At some point, Ms. Cruz-Moore chimed in, asking the original poster to “stop with ur lies about me.” A few days later, five of the posters were fired. They were told that their posts constituted bullying and harassment of Ms. Cruz-Moore. (In a sad and strange twist, they were also told that Ms. Cruz-Moore had suffered a heart attack after reading the posts.)

The administrative law judge found that the firings violated the employees’ rights, under Section 7 of the National Labor Relations Act, to engage in concerted activity for the purpose of mutual aid or protection. These rights apply to union and non-union employees alike. The judge found that the Facebook discussion was “a first step towards taking group action to defend themselves” against Ms. Cruz-Moore’s criticisms, which they could reasonably have believed she was going to take to HUB management. By firing them, HUB precluded the employees from acting as a group in response to the complaints about their performance. The judge also found that HUB essentially admitted that it viewed the fired employees as a group engaged in concerted activity because it lumped them together in firing them.

According to a report issued last month by the NLRB’s General Counsel office, the NLRB has been involved recently in 14 cases involving social media. In four of the cases, the NLRB concluded that the employees’ Section 7 rights had been violated; in five cases, the NLRB found that the employees had not been engaged in protected activity, either because only one employee was involved (and therefore, there was no “concerted” activity) or because the employees were not trying to improve the terms and conditions of their employment (so their activity was not “protected”). In a handful of cases, the NLRB found that the employer’s social media policy was too broad, because employees could interpret it to prohibit protected activity, and in one case the Board found against a union that had posted a YouTube video of union organizers interrogating employees at a non-union workplace about their immigration status.

 

Didn’t Get Hired? Check Your Facebook Page

There was an article in the New York Times last week about a start-up company called Social Intelligence, which exists for the sole purpose of running “social media background checks” on job applicants. The company sorts through everything on the Internet about an applicant for the last seven years, eventually creating a dossier not only of honors, charity work, and other good deeds, but also of racist comments, sexually explicit material, drug references, and weapons displays.

In case you’re wondering why employers need to outsource Internet searches, one of the answers is plausible deniability. As the article points out, these searches can yield plenty of information that employers are legally prohibited from considering in making job decisions. Perhaps an applicant is a frequent poster to a forum for women undergoing fertility treatment, immigrants from the Sudan, or Jews for Jesus. Maybe the applicant belongs to a Facebook group for parents of children with autism. Or, the applicant might have a blog recording her gender transition from male to female (off-limits as a basis for employment decisions in many states). Having a go-between collect the data and hand over only what the employer is legally entitled to consider creates a legal buffer zone.

I wasn’t surprised to see this type of company profiled in the Times, nor to see some of the things applicants have been rejected for (naked pictures, racist rants, photos of the applicant posed next to marijuana plants, or searches for oxycontin on Craigslist). Here’s what surprised me: One of the people interviewed, an EEOC employee, said that 75% of recruiters reported that the companies they hired for required them to research applicants online — and 70% reported rejecting applicants because of what they found on the Internet.