Embed Size (px)
Citation preview
Employment Law alliance
Helping Emplowrs Worldwide
AUDIO CONFERENCE ENTITLED
CAN EMPLOYERS DEMAND TO SEE EMPLOYEES' AND APPLICANTS'
FACEBOOK PAGES?
July 12, 2012
CERTIFICATE OF ATTENDANCE
The undersigned certifies that attended theCan Employers Demand to see Employees' and Applicants' Facebook Pages? AudioConference sponsored by the Employment Law Alliance. The program consisted of 90instructional minutes. The program contained no credit continuing legal education for legalethics, elimination of bias in the legal profession or prevention, detection and treatment of
substance abuse.
Au,ool^ vv/a (it A .dr.Susan Frederick
To be completed by Attorney after participation in the above-namedactivity.
Bysigning below, I certify that I participated in the activity described above and am entitledto claim the following CLE credit hours:
Total Hours
72 7 Sansonu' St re ft, San I"r.uicLsco, California 94 1 I I
415] 835-9011 l415J o34-0443 wwvv.employmentlawaIIiance.484fl-4882-2287
Can Employers Demand to
See Employees' and Applicants'
Facebook Pages?
Thursday, July 12, 2012
Presenters
Moderator
Stephen J. Hirschfeld, CEO, Employment
Law Alliance, San Francisco, CA
2
Presenters
Speakers
Margaret M. (Molly) DiBianca, Attorney,
Young Conaway Stargatt & Taylor, LLP,
Wilmington, DE
Angela Rud, Principal, Gray Plant Mooty,
Minneapolis, MN
3
Presenters
Speakers
Kristin L. Oliveira, Of Counsel, Hirschfeld,
Curiale Kraemer LLP, San Francisco, CA
Kara E. Shea, Attorney, Butler, Snow,
O'Mara, Stevens & Cannada, PLLC,
Nashville, TN
4
Introduction
• Frustration and challenges with
getting meaningful background
information
• Accessing private social media
accounts and other password-
protected information
5
Common Law Claims
• Invasion of privacy
– Do employees or applicants have a
reasonable expectation of privacy?
• Defamation
• Negligent hiring, negligent
retention
6
Common Law Claims
• Special issues for public
employers
– Constitutional Law, state and federal
7
Practical Considerations
• Do your supervisors use online
information to research
applicants?
• Are supervisors trained about the
consequences of searching or
viewing online information about
applicants?
8
Practical Considerations
• Are there screening mechanisms
in place to ensure that supervisors
do not take into account (or
appear to take into account)
protected information?
9
Federal Law
• Current laws
• NLRA
• Proposed legislation
10
Current Laws
• Anti-Discrimination Statutes
– Title VII, ADEA, ADA, GINA
– Inability to “unlearn” information
– Failure-to-hire claims
11
Current Laws
• Stored Communications Act
(SCA)
– Access to data in storage
– Authorization is key
– Pietrylo v. Hillstone Restaurant
Group
12
NLRB Initiatives
• The Act
– Application to non-unionized
workplaces
– Protected concerted activities
• In the context of social media
– Policies
– Discipline
13
NLRA
• Board’s initiatives
– Advice Memoranda
– Approved policy
• Reality Check
14
Proposed Legislation
• Senators’ Letters
– EEOC and DOJ
• Social Networking Online
Protection Act (SNOPA)
• Password Privacy Act of 2012
(PPA)
15
State Statutes
• Discrimination statutes
– May cover additional categories not
covered by federal law
• Off-duty conduct statutes
– Off-duty smoking or use of lawful
consumable products
– Political activities
16
State Statutes
• Off-duty conduct statutes (cont’d)
– General lawful off-duty conduct
• California, New York, Colorado, North
Dakota
• Illinois: Right to Privacy in the
Workplace Act, covers off-duty conduct
and employer recordkeeping
17
State Legislative Activity
• Maryland: User Name and
Password Privacy Protection Act,
signed May 2, 2012
– Prohibits employers from requesting
or requiring passwords
– Goes into effect October 1, 2012
18
State Legislative Activity
• Illinois is likely next (HB 3782)
• Legislation introduced in 13 states
in 2012
19
Issues with Recent State Legislation
• Little evidence of need
• Most apply to applicants and current
employees
• Some also apply to e-mail and texts
• Many apply to “shoulder surfing”
• Broadly worded, with few exceptions
(workplace safety, workplace
investigations, etc.)
20
State Bill Tracker
State Bill Status
CA A.B. 1844, S.B. 1349 Pending
DE HB 308; H.B. 309 Pending
IL HB 3782 Passed, awaiting
Governor’s signature
MA HD 4323 Pending
MD SB 433 Enacted; goes into effect
(Chapter 232/234) 10/1/12
MN HF 2963, HF 2982, Pending
SF 2565
21
State Bill Tracker
State Bill Status
MI H.B. 5523, 5623 Pending
MO H.B. 2060 Pending (regular session
adjourned)
NJ Bill A-2878 Pending
NY Sen. 6983, A.B. 9654 Pending
OH SB 351 Pending
SC HB 5105 Pending
WA SB 6637 Pending (regular session
adjourned)
22
Conclusion
• Practical considerations
• So, where do we go from here?
23
Please Complete Our Survey
Please take a few minutes to complete the survey that will
appear on your computer screen immediately following
the webinar.
To listen to this webinar again or to any past ELA
webinars, please visit our website at:
www.employmentlawalliance.com.
The ELA is not authorized to give CLE/HRCI/SHRM credit
for its webinars; however, a Certificate of Attendance and
supporting materials are now posted on the ELA website
(click this webinar’s title and scroll down to the link).
Attendees seeking HRCI or SHRM credit should submit
the materials directly to HRCI at www.hrci.org or to SHRM
at www.shrm.org.
24
