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Social Media In the Workplace

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Lisa Borodkin
Lisa Borodkin

This document provides an update on social media and the workplace in 2017. It discusses California laws banning employers from compelling employees to provide personal social media account access or passwords. Exceptions allow requests during investigations or for employer-issued devices. A court case found an employer did not have to disclose managers' personal social media not used for business. Another case ruled an employee had to identify social media accounts to the employer in a lawsuit. The document also discusses how an employee's erratic Facebook posts did not require an accommodation from the employer. It reminds that there is no expectation of privacy for workplace phone calls. The document concludes with best practices for employee social media policies.

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Social Media in the Workplace2017Mid-YearUpdate Lisa Borodkin ZallerLawGroup,PC
California – Ban on Compelled Access to Social Media Law Effective January 1, 2013 (Labor Code Section 980) Prohibits all California employers from requiring employee or applicant to ? “disclose” personal social media passwords ? Access personal social media in employer’s presence ? “Divulge” social media in the employer’s presence ? Also prohibits adverse actions against an employee for not complying with these prohibited acts
California – Ban on Compelled Access to Social Media – Part 2: Exceptions Exceptions to Ban ? If the request is made to a current employee as part of investigation of employee conduct or violation of the law and based on a “reasonable” belief that the information is relevant (Labor Code Section 980(c)) ? If the information is on an employer-issued device (Labor Code Section 980(d))
Managers’ Social Media Accounts In Kellgren v. Petco Animal Supplies (S.D. Cal., March 13, 2017), a misclassification case, the issue was: Does the company have to produce social media messages, tweets and postings from the general managers’ and district managers’ personal social media accounts? Holding: No. Discovery was denied, because the GMs and DMs had no ability to post on behalf of Petco’s social media, and the GMs and DMs social media was separate.
Employees’ Social Media Accounts In Kellgren v. Petco Animal Supplies (S.D. Cal., May 26, 2016), a misclassification case, the issue was: Does the plaintiff have to identify personal social media accounts (Facebook, LinkedIn) and produce relevant messages? Holding: Yes. Identifying the social media accounts imposed a minimal burden. “Frequency and times” of plaintiff’s social media use could tend to support defense that plaintiff worked less than 40 hours a week.
No Duty To Monitor Employee Social Media Accounts In Featherstone v. Southern California Permanente Group (Cal. App. Apr. 19, 2017), a failure to accommodate case, the issue was: Was the employee’s erratic Facebook posting sufficient notice to require the company to engage in the interactive process? The employee’s manager had noticed the Facebook post. Holding: No. It was undisputed that the employee did not use any of the company’s official channels to request an accommodation for her temporary disability.
No Expectation of Privacy in Workplace Phone Calls – Reynolds v. City of SF (9th Cir. 2014) Reminder about recording of workplace phone calls: Generally, California is a two-party consent state under Penal Code Section 631. However, there is no expectation of privacy when telephone calls take place in an open work space, on a work-assigned telephone, in the presence of co-workers, and the conversation is about work. Best practice is to agree in advance that there are no privacy expectations at work or on work phones.
Employee Social Media Policy Best Practices Useful Provisions ? No expectation of privacy in company owned-phones ? No expectation of privacy in company email ? No expectation of privacy in company devices ? Disclaimers where personal social media overlaps with company’s ? Be respectful of company and coworkers ? Agree that company has no duty to monitor personal social media use

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Social Media In the Workplace

  • 2. California – Ban on Compelled Access to Social Media Law Effective January 1, 2013 (Labor Code Section 980) Prohibits all California employers from requiring employee or applicant to ? “disclose” personal social media passwords ? Access personal social media in employer’s presence ? “Divulge” social media in the employer’s presence ? Also prohibits adverse actions against an employee for not complying with these prohibited acts
  • 3. California – Ban on Compelled Access to Social Media – Part 2: Exceptions Exceptions to Ban ? If the request is made to a current employee as part of investigation of employee conduct or violation of the law and based on a “reasonable” belief that the information is relevant (Labor Code Section 980(c)) ? If the information is on an employer-issued device (Labor Code Section 980(d))
  • 4. Managers’ Social Media Accounts In Kellgren v. Petco Animal Supplies (S.D. Cal., March 13, 2017), a misclassification case, the issue was: Does the company have to produce social media messages, tweets and postings from the general managers’ and district managers’ personal social media accounts? Holding: No. Discovery was denied, because the GMs and DMs had no ability to post on behalf of Petco’s social media, and the GMs and DMs social media was separate.
  • 5. Employees’ Social Media Accounts In Kellgren v. Petco Animal Supplies (S.D. Cal., May 26, 2016), a misclassification case, the issue was: Does the plaintiff have to identify personal social media accounts (Facebook, LinkedIn) and produce relevant messages? Holding: Yes. Identifying the social media accounts imposed a minimal burden. “Frequency and times” of plaintiff’s social media use could tend to support defense that plaintiff worked less than 40 hours a week.
  • 6. No Duty To Monitor Employee Social Media Accounts In Featherstone v. Southern California Permanente Group (Cal. App. Apr. 19, 2017), a failure to accommodate case, the issue was: Was the employee’s erratic Facebook posting sufficient notice to require the company to engage in the interactive process? The employee’s manager had noticed the Facebook post. Holding: No. It was undisputed that the employee did not use any of the company’s official channels to request an accommodation for her temporary disability.
  • 7. No Expectation of Privacy in Workplace Phone Calls – Reynolds v. City of SF (9th Cir. 2014) Reminder about recording of workplace phone calls: Generally, California is a two-party consent state under Penal Code Section 631. However, there is no expectation of privacy when telephone calls take place in an open work space, on a work-assigned telephone, in the presence of co-workers, and the conversation is about work. Best practice is to agree in advance that there are no privacy expectations at work or on work phones.
  • 8. Employee Social Media Policy Best Practices Useful Provisions ? No expectation of privacy in company owned-phones ? No expectation of privacy in company email ? No expectation of privacy in company devices ? Disclaimers where personal social media overlaps with company’s ? Be respectful of company and coworkers ? Agree that company has no duty to monitor personal social media use