Aggregates Manager

July 2014

Aggregates Manager Digital Magazine

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33 AGGREGATES MANAGER July 2014 ROCKLAW Restricting employer's access to social media passwords Numerous states have now passed legislation protecting an employee's social media passwords. These laws prohibit employers from asking employees and applicants to disclose their login details, demanding changes in employees' privacy settings, or requiring employees to add other employees as friends or contacts. Employers are also prohibited from dis- charging employees or refusing to hire applicants who exer- cise their social media privacy rights under this law. NLRB's reaction to overbroad social networking policies Employers should be cautious of potential issues regarding "concerted activity" under the National Labor Relations Act (NLRA). Under the NLRA, employees may confer with one another about their wages and other terms and conditions of employment. Employees may also take "concerted" action in an effort to improve their working conditions. Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union. Employees are relying on Section 7 to challenge company social media policies. According to recent decisions by the NLRB, employers should avoid policies that place unnec- essary restrictions regarding what employees may post on social networking websites. NLRB Acting General Counsel Lafe Solomon issued a report summarizing conduct that the NLRB has viewed as constituting protected activity, even though it took place online: • Conversations among co-workers regarding job perfor- mance and staffing levels that implicated working con- ditions; • Discussing supervisory actions with co-workers; • Posting photos and comments reflective of co-workers' concerns regarding terms and conditions of employ- ment; and • Shared concerns about terms and conditions of em- ployment. The NLRB has, however, noted that individual employee gripes are not protected activity. Likewise, social media policies have been upheld as lawful where they are aimed at preventing inappropriate postings, such as discriminatory remarks and threats of violence. Implementing a social media policy A reasonable social media policy should contain the follow- ing minimum components. • Remind employees that they are not to divulge private company or vendor information, trade secrets, or other confidential or proprietary information. Provide ex- amples of policy violations. • Inform employees that discriminatory statements or sexual innuendo about co-workers, customers, or ven- dors will not be tolerated and will subject the employee to discipline. • State that employees may be held accountable for the content they post on the Internet, whether the posting is done at work, at home, or on the employee's own time. This is particularly true if the employee posts or shares something that violates company policies. • Discuss the consequences and potential disciplinary ramifications for violations of the social media rules. • Require signed employee acknowledgement for receipt of the social media policies. Conclusion The key practice-pointer from the evolving law on elec- tronic communication is that employers should create well-defined written policies explaining when and how electronic communication may be used by employees. Employers should also narrowly focus their electronic monitoring policies to legitimate business interests, such as avoiding the distribution of inappropriate and/or sexu- ally offensive e-mail content. In creating such policies, employees should also retain caution against becoming too overzealous in their approach to monitoring employees and pre-screening employees such that the employer's us- age of social networking websites infringes on the employ- ee's NLRA Section 7 concerted activity rights. Employers should also stay abreast of the latest developments in social media as new issues are emerging frequently in this rapidly evolving area of law. AM

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