Social Media in the Workplace: A New Web of Regulations Falls on Employers
Lane Powell Shareholder Paul Ostroff authored an article in the Summer 2013 issue of Oregon Bankers Association’s Banking Matters magazine titled “Social Media in the Workplace: A New Web of Regulations Falls on Employers.” The article discussed recently issued memos from the general counsel of the National Labor Relations Board’s (“NLRB”), that describe social media policies that comply with, or fail to comply with, the National Labor Relations Act (“NLRA”). The article outlines the principles applied by the general counsel of the NLRB as a guide for employers to develop social media policies that are compliant with the NLRA and to protect themselves against potential claims brought by employees.
The article also discussed recent NLRB cases that have imposed liability upon employers for terminations arising from employee activities on Facebook, and recommends ways that employers may take lawful action relating to employee communications on social media sites, thereby avoiding such liability.
Finally, the article discussed an Oregon state law going into effect January 2014, which will prohibit employers from requiring or requesting an employee or applicant for employment to divulge any information or request access to their existing social media accounts. However, as Ostroff described, there are special exceptions for investigations. To qualify, the investigation must be for the purpose of ensuring compliance with laws, regulatory requirements or prohibitions against work-related misconduct based on receipt by the employer of specific information about activity of the employee on a personal online account or service. For investigations meeting these requirements, the employee may only be required “to share content that has been reported to the employer that is necessary for the employer to make a factual determination.”