LEGAL ISSUES IN SOCIAL

MEDIA AND SOCIAL NETWORKING

ARTHUR R EHRLICHARTHUR R EHRLICHGOLDMAN & EHRLICHGOLDMAN & EHRLICH

20 SOUTH CLARK STREET20 SOUTH CLARK STREETSUITE 500SUITE 500

CHICAGO, ILLINOIS 60603CHICAGO, ILLINOIS 60603312-332-6733312-332-6733

Arthur@GoldmanEhrlich.comwww.GoldmanEhrlich.com

Follow me on Twitter @GoldmanEhrlichFollow me on Twitter @GoldmanEhrlich

ILLINOIS PROHIBITS REQUESTING ACCESS TO EMPLOYEE’S SOCIAL NETWORKING SITE

820 ILCS 55/10 PROHIBITED INQUIRIES (Effective: January 1, 2014)

(b)(1) Except as provided in this subsection, it shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.

II. SOCIAL MEDIA AND THE NATIONAL LABOR RELATIONS BOARD (NLRB)

29 U.S.C.A. § 157§ 157. Right of employees as to

organization, collective bargaining, etc.Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,

29 U.S.C.A. § 158§ 158. Unfair labor practices(a) Unfair labor practices by

employerIt shall be an unfair labor practice

for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

CONCERTED ACTIVITY

1. INCLUDES STATEMENTS OR ACTIVITIES MADE “WITH THE OBJECT OF INITIATING OR INDUCING OR PREPARING FOR GROUP ACTION OR THAT HAVE SOME RELATION TO GROUP ACTION IN THE INTEREST OF THE EMPLOYEES.”

2. “ACTIVITIES CARRIED OUT BY INDIVIDUAL EMPLOYEES MAY BE CONSIDERED TO BE CONCERTED.

3. “MERE GRIPES” ARE NOT CONCERTED ACTIVITY  4.NLRB PROTECTIONS OF CONCERTED ACTIVITIES APPLY REGARDLESS OF WHETHER THERE IS A UNION

5.EMPLOYEE CONDUCT DOES NOT LOSE NLRA PROTECTION MERELY BECAUSE COMMENT MAY HAVE AN ADVERSE EFFECT ON THE COMPANY’S BUSINESS

6.USE OF PROFANITY DOES NOT LOSE PROTECTION

EMPLOYER’S POLICY ON SOCIAL MEDIA THAT IS OVER BROAD OR AMBIGUOUS MAY BE DEEMED TO HAVE “CHILLING IMPACT” ON SECTION 7 RIGHTS TO ENGAGE IN CONCERTED ACTIVITIES  

NLRB FOCUS: WOULD AN EMPLOYEE REASONABLY CONSTRUE THE LANGUAGE OF THE POLICY AS PROHIBITING HIM OR HER FROM ENGAGING IN ACTIVITY PROTECTED BY SECTION 7 OF NLRA 

EMPLOYER HAND BOOK RULES ON SOCIAL MEDIA USE

III. USE OF SOCIAL MEDIA POSTINGS AND SOCIAL NETWORKING SITES FOR

SCREENING EMPLOYEESA.A. IGNORANCE IS BLISSIGNORANCE IS BLISS

B. POTENTIAL CONSEQUENCES1. Gaskell v. University of Kentucky,

MSJ denied in failure to hire case when MSJ denied in failure to hire case when search committee knew about plaintiff’s on line search committee knew about plaintiff’s on line article about creationismarticle about creationism

2.2. Neiman v. Grange Mutual Casualty Co.,Motion to dismiss denied based on plaintiff’s

allegation that defendant knew his age because he listed his year of graduation on his LinkedIn profile

 

IV. SOCIAL MEDIA POSTINGS IN TITLE VII ACTIONS

A. EEOC public meeting in March 2014 about the potential for misuse of social media sites, which could lead to discrimination or harassment claims.

“ social media posting by a co-worker may contribute to the creation of an unlawful hostile work environment,”

B. SOCIAL MEDIA POSTINGS MAY CONSTITUTE NOTICE OF HARASSMENT TO DEFENDANT

C. EMPLOYER CAN LIMIT POTENTIAL LIABILITY BY TAKING ACTION WHEN EMPLOYEES ENGAGE IN INAPPROPRIATE SOCIAL MEDIA ACTIVITY USING EMPLOYER-OWNED DEVICES AND ACCOUNTS

D. AMMUNITION FOR DEFENDANT 1. Gelpi v. AutoZoners, 

SEXUAL HARASSMENT CLAIM BASED ON HOSTILE ENVIRONMENT REJECTED WHEN PLAINTIFF’S FACEBBOOK PAGE REVEALED THAT SHE WAS VERY COMFORTABLE WITH SEXUAL HUMOR AND PARTICIPATED SEXUAL JOKES AND BANTER AT WORK 

2. PLAINTIFF SOCIAL MEDIA POSTINGS ARE SUBJECT TO DISCOVERY

 

OFFENSIVE POSTINGS CAN BE GROUNDS FOR TERMINATION

SMIZER V. CMTY. MENNONITE EARLY LEARNING CTR., 538 F. APP'X 711, 714 (7TH CIR. 2013)

THE FAMOUS BURR ANDERSON SUCCESSFULLY ARGUED THAT PLAINTIFF WAS PROPERLY TERMINATED FOR MAKING OFFENSIVE COMMENTS ABOUT COWORKERS ON A SOCIAL MEDIA SITE

ARTHUR R EHRLICHARTHUR R EHRLICHGOLDMAN & EHRLICHGOLDMAN & EHRLICH

20 SOUTH CLARK STREET20 SOUTH CLARK STREETSUITE 500SUITE 500

CHICAGO, ILLINOIS 60603CHICAGO, ILLINOIS 60603312-332-6733312-332-6733

Arthur@GoldmanEhrlich.comwww.GoldmanEhrlich.com

Follow me on Twitter @GoldmanEhrlichFollow me on Twitter @GoldmanEhrlich