On December 1st, New Jersey became the 12th U.S. State with a social media password-protection law. Under that newly effective legislation, employers are prohibited from (a) asking employees or employment candidates for their usernames and passwords to their social media profiles; (b) retaliating against an employee or candidate who refuses to “provide or disclose any user name or password, or in any way provide access to, a personal account through an electronic communications device”; and from (c) making employment decisions based on personal information in an employee’s or candidate’s publicly available social media profiles.
The first prohibition is fairly self-explanatory: Don’t ask for employees’ social media profile login info. The latter are far less clear as to what specific conduct is prohibited, because understanding them requires the employer to exercise judgment. For example, what conduct could constitute retaliation or discrimination? What constitutes an “employment decision?” In addition, employers also have to comply with federal law and regulations governing social media use, such as Section 7 of the National Labor Relations Act (NLRA), and similar regulations promulgated by the National Labor Relations Board (NLRB).
One of the problems that employers will have in trying to maintain compliance with these new laws is that the circumstances tend to be very fact specific, and therefore, the case law interpreting the statutes is going to evolve over time. For instance, current law prohibits an employer from taking adverse action against an employee who tweets about her concern over being paid a smaller wage than her male counterpart. But what about if that same employee is suspected of cheating on her time sheets—what, if anything can the employer do to make sure the employee is playing by the rules, without appearing to discipline the employee for her social media comments? This isn’t necessarily a new dilemma for employers; for decades they’ve had to deal with the prospect of having to layoff an employee who has a disability, or just happens to be pregnant. But when you consider that 1.73 billion people will use social media this year, the potential to run afoul of the law increases exponentially.
Although you can find examples of various social media policies floating around the web, you can’t rely on such a document that was prepared for another company’s business. When you consult with an attorney who understands and practices social media law, they’re able to look at your business through the lens of that knowledge and experience. To a business owner, that provide peace of mind. Perhaps more importantly, once you’ve established a relationship with that attorney, it will be that much easier for you to pick up the phone when, down the road, you’re faced with a legal question, or potential legal problem.