Au,ool^ vv/a (it A.dr. Susan Frederick

Transcription

1 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 the Can Employers Demand to see Employees' and Applicants' Facebook Pages? Audio Conference sponsored by the Employment Law Alliance. The program consisted of 90 instructional minutes. The program contained no credit continuing legal education for legal ethics, 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-named activity. Bysigning below, I certify that I participated in the activity described above and am entitled to claim the following CLE credit hours: Total Hours 72 7 Sansonu' St re ft, San I"r.uicLsco, California 94 1 I I 415] l415j o wwvv.employmentlawaiiiance.484fl

2 Can Employers Demand to See Employees' and Applicants' Facebook Pages? Thursday, July 12, 2012

3 Presenters Moderator Stephen J. Hirschfeld, CEO, Employment Law Alliance, San Francisco, CA 2

4 Presenters Speakers Margaret M. (Molly) DiBianca, Attorney, Young Conaway Stargatt & Taylor, LLP, Wilmington, DE Angela Rud, Principal, Gray Plant Mooty, Minneapolis, MN 3

5 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

6 Introduction Frustration and challenges with getting meaningful background information Accessing private social media accounts and other passwordprotected information 5

7 Common Law Claims Invasion of privacy Do employees or applicants have a reasonable expectation of privacy? Defamation Negligent hiring, negligent retention 6

8 Common Law Claims Special issues for public employers Constitutional Law, state and federal 7

9 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

10 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

11 Federal Law Current laws NLRA Proposed legislation 10

12 Current Laws Anti-Discrimination Statutes Title VII, ADEA, ADA, GINA Inability to unlearn information Failure-to-hire claims 11

13 Current Laws Stored Communications Act (SCA) Access to data in storage Authorization is key Pietrylo v. Hillstone Restaurant Group 12

14 NLRB Initiatives The Act Application to non-unionized workplaces Protected concerted activities In the context of social media Policies Discipline 13

15 NLRA Board s initiatives Advice Memoranda Approved policy Reality Check 14

16 Proposed Legislation Senators Letters EEOC and DOJ Social Networking Online Protection Act (SNOPA) Password Privacy Act of 2012 (PPA) 15

17 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

18 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

19 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,

20 State Legislative Activity Illinois is likely next (HB 3782) Legislation introduced in 13 states in

21 Issues with Recent State Legislation Little evidence of need Most apply to applicants and current employees Some also apply to and texts Many apply to shoulder surfing Broadly worded, with few exceptions (workplace safety, workplace investigations, etc.) 20

22 State Bill Tracker State Bill Status CA A.B. 1844, S.B 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

23 State Bill Tracker State Bill Status MI H.B. 5523, 5623 Pending MO H.B Pending (regular session adjourned) NJ Bill A-2878 Pending NY Sen. 6983, A.B Pending OH SB 351 Pending SC HB 5105 Pending WA SB 6637 Pending (regular session adjourned) 22

24 Conclusion Practical considerations So, where do we go from here? 23

25 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: 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 or to SHRM at 24