May 11, 2012
As companies continue to embrace the use of social media, there is an increasing likelihood of federal regulation of employment practices in this area. According to an annual survey of 4,200 global executives by the McKinsey Quarterly, the percentage of organizations using social networking sites has grown from 23 to 50 percent over the past four years, with many seeing a positive effect on their bottom lines. However, restrictions in the employment context have already begun as acting National Labor Relations Board General Counsel Lafe Solomon has issued complaints against a number of companies based on the social media policies governing their employees. It remains unclear as to which policies will pass muster under the labor laws, but last month Mr. Solomon told our Labor Relations Advisory Board that guidance will be forthcoming. Meanwhile, responding to recent news reports alleging that job applicants are being asked for their social media passwords in the interview process, Democrats in both the House and Senate introduced legislation this week banning the practice and potentially fining offending employers up to $10,000. Though it is unclear whether the problem even exists on a meaningful scale, the Senators are touting the Password Protection Act (H.R. 3074) as an important step toward protecting employees’ right to privacy. Senator Amy Klobuchar (D-MN) told the press, “No person should be forced to reveal their private online communications just to get a job. This is another example of making sure our laws keep up with advances in technology and that fundamental values like the right to privacy are protected.” While it is our impression that very few employers actually engage in this practice, it has been our experience in the past that broader regulations often emanate from isolated instances of alleged abuses.