The subject of employer compelled disclosure of employee social media passwords has swept the blog and news worlds. Facebook has weighed in on the subject, and Senators Blumenthal and Schummer have asked the EEOC and the Department of Justice to investigate whether such demands violate current law. Jon Hyman at the Ohio Employer's Law Blog has an excellent analysis of the subject. Given the attention that the NLRB and the Acting General Counsel have paid to social media in the work place and the rights of employees, I believe that the NLRB could use its case law on employer surveillance of employee protected, concerted activity to find a violation of § 8(a)(1) of the Act. The Board has held that it is an unfair labor practice for an employer to engage in surveillance of union activity or to create the impression among employees that their activities are under surveillance. Cases have arisen where supervisors tell employees that they know about meetings with the union and caution employees to be careful who they associate with.In Magna Intl. Inc.,7-CA-43039 (3/9/01), a NLRB administrative law held that the comment of a supervisor who had visited a union web site to an employee that "he liked her picture" created an impression of surveillance and was an unfair labor practice. An employer who requires employees to provide their passwords is certainly conveying the impression that it will be monitoring those social media sites to see what the employees are posting. Such action also has a chilling effect on employees who want to use social media to engage in protected, concerted activity.There are many reasons why an employer should not require employees to provide social media passwords. A potential unfair labor practice is just one more.
For additional Labor and Employment law insights from John Holmquist , visit the Michigan Employment Law Connection.
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