Pub. 1 2012 Issue 2

16 San Diego Dealer Social Media in the Workplace: New Rules and Guidance for Supervisors BY CHRIS HOFFMAN REGIONAL MANAGING PARTNER, FISHER & PHILLIPS LLC O n September 27, 2012, California Governor Jerry Brown signed into lawAssembly Bill 1844, which prohibits employers from requiring or requesting an employee or applicant for employment to: (1) disclose a username or password for personal social media, (2) access their accounts in the presence of employers, or (3) divulge any personal social media. It also makes it illegal to discipline or retaliate against an employee or applicant for not complying with a request or demand for access to personal social media. The bill carves out two exceptions. First, an employer can require disclosure of usernames and passwords if it is relevant to an investigation of employee misconduct or employee violations of laws or regulations. Second, the bill does not preclude employers from requiring or request- ing an employee to disclose a username or password for the purpose of accessing an employer-issued electronic device. While the bill was largely aimed at protecting the privacy of employees’ social networking sites such as Facebook, Twitter, and LinkedIn, its definition of“social media”is broad. The definition includes “videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.” Finally, this legislation states that the Labor Commissioner is not required to investigate or determine alleged violations of this law. Presumably this will allow employees and applicants to proceed directly to file lawsuits for alleged violations. This legislation makes California the third state (after Maryland and Illinois) to ban employers from requiring access to employee and applicant social networking sites. At least ten other states and the federal govern- ment are currently considering similar legislation. Employers should evaluate current technology policies and practices to ensure compliance with the new law. The law does not prohibit electronic monitoring of employer-provided electronic devices. Such electronic monitoring, such as key-stroke monitoring for the purpose of reviewing Internet usage, is still permitted. Supervisors have additional responsibilities and face a variety of issues related to their subordinates and use of social media. Unfortunately, little has been written to alert managers to the legal issues they may face in dealing with their employees’ social media posts, particularly when the post involves provocative or insulting material related to the job, the managers or their employer. The following rules are designed to provide managers with some practical guidance about how to analyze their employees’ social media posts and communications and how to avoid the legal pitfalls associated with them. RULE #1: Do Not Friend Your Subordinates There are a number of reasons for this. First, it looks bad. If you “friend” some of your subordinates, but not others, it creates the appearance of favoritism. Second, it is never a good idea for supervisors to become too close to the people that they manage on a day-to-day basis. Third, if you visit a “friend’s” page, you may find out things about the friend that you do not want or need to know: he just tested positive for HIV-AIDS, or she posted a picture of herself“smoking the ganja”while on vacation in Jamaica. If the employee with HIV was about to be fired for poor performance, your new knowledge may mean that you have to change your plans. And will you drug test the returning vacationer? Remember, too, that “friending” is a two-way street. If you post “inter- esting”things about your personal life, you can assume that they will be common knowledge throughout the dealership even among non-friends. That can easily undermine your role as a manager and perhaps make it more difficult to enforce the company’s rules and otherwise manage your employees.