The growing popularity of cyberstalking job applicants and employees on social media has sent millions of Americans scrambling to change their privacy settings. That hasn’t stopped employers from simply demanding that job applicants and employees disclose their social media log-in information or even hand over their smartphones. Luckily, new laws protect employees from tweeting themselves out of their jobs. California law now allows those who are prone to oversharing to keep their social media “keys” far down their pockets. Furthermore, the National Labor Relations Board (NLRB) has dusted off a New Deal-era law to prohibit an employer from retaliating against an employee whose social media tirades constitute “concerted activity” for the “mutual aid or protection” of other employees.
California Law Protects Employees from Retaliation for Refusing to Hand over Their Social Media “Keys”
Labor Code section 980 prohibits an employer from requiring or requesting that an employee or job applicant: (1) disclose a username or password to personal social media; (2) access personal social media in the presence of the employer; or (3) “divulge” any personal social media.1 The law defines “social media” as any “electronic service or account” or any “electronic content,” which, in turn, includes everything from Facebook rants and Instagram photos to texts and e-mails.2 Thus, an employer generally can’t ask to see an employee’s personal cell phone. The law puts teeth into these provisions by prohibiting an employer from retaliating against an employee or job applicant for not complying with such a request or demand.3
But an employer’s request or demand must be illegal for section 980 to protect an employee or job applicant. Thus, an employer can still force an employee to “divulge” personal social media that someone (the law doesn’t say who) “reasonably believes” to be relevant to an investigation of “allegations” of “employee misconduct” or “employee violation of applicable laws and regulations.”4 Furthermore, an employer doesn’t need a reason at all to force an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued device.5 Of course, an employer can google an employee or job applicant all he wants or overcome privacy settings by sending a friend request through a fake account.
Federal Law Protects Employees from Retaliation for Blasting Their Employers on Social Media
Even if an employee must turn over his social media “keys,” his employer better not get too carried away with them. Section 7 of the National Labor Relations Act (NLRA) provides that “[e]mployees shall have the right…to engage in…concerted activities for the purpose of…mutual aid or protection, and shall also have the right to refrain from…such activities…”6 Employers who “interfere with, restrain, or coerce” employees in the exercise of their right to engage in concerted activity under Section 7 are liable for unfair labor practices.7 If an employer fires an employee for engaging in concerted activity, NLRB can order the employer to reinstate him and pay him back pay with interest.8
The protection of “concerted activity” extends to the new water cooler: social media. Like in any other forum, “concerted activity” on social media occurs when an employee acts “with or on the authority of other employees and not solely by and on behalf of himself.”9 Even an employee who blasts his employer on Glassdoor engages in “concerted activity” if he seeks to “initiate, induce, or prepare” for group action or brings “truly group complaints” to management’s attention.10 Even an employee’s communication to nonemployees can be concerted activity if: (1) the communication indicates it is related to an “ongoing dispute” between employees and their employer; and (2) the communication is not “disloyal, reckless, or maliciously untrue.”11
Even an employee who merely “likes” a co-worker’s comment on Facebook can be engaged in concerted activity. In Triple Play Sports Bar and Grille, 34-CA-12926 (2012), several current and former employees of a sports bar complained on Facebook that the bar’s owners miscalculated their tax withholdings. A former employee commented, “They can’t even do the tax paperwork correctly!!! Now I OWE money…WTF!!!” A current employee responded, “I owe, too. Such an asshole.” Another current employee “liked” the former employee’s comment. The bar learned about the discussion and fired both of the current employees. The NLRB held that both employees engaged in concerted activity.