February 8, 2023

Volume XIII, Number 39


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February 06, 2023

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Privacy and Security Issues for 2013 (Second of a series): What to Expect in the Employment Arena

Our series over the next 10 days will highlight the top issues, as we see them, in privacy and security for 2013. Yesterday, we looked at the increase in cybcersecurity disclosure by public companies, triggered by the Securities and Exchange Commission’s Cybersecurity Guidance.

As more and more employees take to social media to conduct business, questions remain about how, if at all, employers may legally regulate and monitor employees’ conduct on social media. For example, employees use LinkedIn, not just for networking, but to conduct business – whether mining potential sales contacts and growing pipelines.  But who owns the contacts and what can employers tell employees about how to conduct themselves while mining them?  And what happens when an employee leaves?  Can the employee take “their” contacts on LinkedIn or does the employer “own” those contacts? Is ownership truly in question if an employee uses LinkedIn to obtain the contacts at the employer’s behest, utilizing the employer’s resources and while on the employer’s payroll?  These are questions some courts are beginning to address.

Related to this issue is the National Labor Relations Board’s growing interest in defining what employers with unionized and non-unionized workforces can and cannot do with respect to limiting communications in the workplace. The NLRB says that employees may air grievances about wages and working conditions without employer restriction – note the now infamous “Facebook” firings and related cases.  The NLRB has also invalidated employer social media policies for failing to comply with the National Labor Relations Act.  Twitter seems to be the next natural stop for the NLRB’s growing influence.  Many people “tweet” at their employer’s behest and with their employer’s blessings. What happens when the employee strays from the script? And who has the time and energy to undertake the “community curation” required to keep the employer’s finger on the pulse of these communications in a consistent and non-discriminatory manner?

Then, of course, there is the issue of an employer’s right to monitor an employee’s use of social media in the first instance.  In order to protect the corporate reputation, prohibit unlawful competitive activity, including the theft of trade secrets, or to affirmatively comply with certain government regulations, some employers now require employees (and prospective employees) to provide their social media passwords or other account information.  Fourteen state legislatures (like California) have recently enacted laws prohibiting this practice, and other states are likely to follow suit.  Social media privacy bills are under consideration in Missouri, Texas, and other jurisdictions. Whether a particular state prohibits this practice or not, employers must give serious thought before implementing (or continuing to implement) this practice.  Specifically, they must be mindful of the “Big Brother” perception and the potential exposure to claims under the anti-discrimination laws, labor laws, and state privacy laws.

In 2013, employers, employees, lawmakers, regulatory authorities and courts will continue to struggle to strike the right balance between privacy, corporate culture, ownership of business information, free expression, and creativity. Recommendation for action in 2013:  If your business has a social media policy, review it in light of emerging state laws and the NLRB cases.   If your business does not have a social media policy, 2013 is the time to take another look.

See part one of this Series:  Privacy and Security Issues for 2013 (First of a series): The SEC Will Require Greater Disclosure Related to Data Security Risks and Breaches

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume III, Number 6

About this Author

Jennifer Rubin Employment Attorney Mintz

Jen draws on 30 years of experience crafting legal solutions to employment challenges. Her clients include small and large businesses and individual representation of executives. She advises technology, financial services, publishing, retail, professional services, and health care companies seeking regulatory, litigation, and compliance advice. She divides her employment practice between wage and hour compliance and trial practice, with a focus on class actions, trade secrets and employment mobility disputes, and the defense of discrimination, retaliation and other disputes arising from...

Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while...