Frenetic Foils and Further Facebook Follies

Things just keep moving and changing, which I suppose is what makes this area of the law so fun and interesting.   Like a ping pong match, I’ve been back and forth over the past several weeks updating developments on the NLRB’s April 30th posting deadline (as recently as yesterday’s blog), as well as the legislative trend toward prohibiting employers from demanding access to social media accounts.   Today, some new developments on both fronts.

Foiling the NLRB’s April 30th Posting Deadline

As you know, the federal court in South Carolina just held that the NLRB’s posting rule is invalid, reaching the opposite conclusion of the federal court in the District of Columbia.   However, just today, the United States Court of Appeals in DC granted an injunction barring enforcement of the NLRB’s posting requirement in light of the “uncertainty about enforcement” due to the current litigation landscape.”   The April 30th deadline now appears to be no more.

Further Facebook Follies

Some interesting, yet predicted, developments on the issue of demanding Facebook account information.    Maryland just went from first to first (yes, you read that correctly).   It was the first state to have proposed legislation on this issue, and now has become the first state to actually pass legislation on this issue.    Once signed by Maryland Governor O’Malley (expected any day), the law will become effective on October 1, 2012, and would, among other things, bar employers in that state from demanding access to an employee’s or applicant’s social media passwords.

It doesn’t stop there.   New York has just joined the fray as well, with New York State Senator Liz Krueger introducing a bill (S. 6938) that would prohibit employers or their agents from demanding personal social media account information, and expressly state that a refusal to provide such information cannot form the basis of an adverse hiring decision.     The State of Washington just introduced a similar bill in its legislature, which also comes on the heels of the proposed federal legislation that continues to make its way through the halls of Congress as a means for developing a national position on this issue.

Employer Take Away:   What should you as an employer take away from this development?   

Keep watching.   There’s certainly more still to come.   On the posting issue, there’s, again, no need to clear off the wall space prior to April 30th, but I suspect that this issue is far from over. 

On the social media password issue, if you’re doing business in Maryland, you will soon be prohibited from demanding personal social media account information.  Elsewhere, you are wise to seek guidance on whether your hiring practices may be limited by existing (or proposed) legislation in the jurisdictions in which you have offices.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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