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A recent European Court of Human Rights (ECHR) case (Barbulescu -v- Romania) has attracted much publicity in the UK press as giving employers the green light to read employees’ private emails. Is that correct and does this case really change things?

Background

Mr Barbulescu was employed as an engineer in charge of sales. His employer had a strict policy of not permitting private use by employees of its computer and telecommunications systems. Mr Barbulescu was asked by his employer to set up a Yahoo Messenger account so that Mr Barbulescu could communicate with customers.

Sometime later, the employer notified Mr Barbulescu that it has been monitoring his account and they believed that he had been using it for private communications. Mr Barbulescu denied this at which point his employer presented him with a 45 page transcript of all his Yahoo Messenger communications, including private communications with his fiancée and brother. Mr Barbulescu was dismissed for breaching the employer’s policy on personal use of computer systems.

Mr Barbulescu subsequently brought employment claims in the Romanian courts alleging that his dismissal was void since the employer had breached his right to privacy by accessing his private communications. Mr Barbulescu was unsuccessful before the Romanian courts but his case was brought before the ECHR. Mr Barbulescu’s argument was that Romania had failed to protect properly his Article 8 right to respect for his private and family life, his home and correspondence.
Continue Reading Do employers have the right to read employees’ private emails?

This post was written by Gregory J. Sagstetter.

Effective July 1, 2015, Virginia will join the growing list of states (including Arkansas, Colorado, Illinois, Louisiana, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin) that have enacted legislation restricting the circumstances in which an employer can access…

With the first quarter of 2015 behind us, many companies are already deeply engaged in social media campaigns. Many of these campaigns include the engagement of professional bloggers or other persons with social media influence to promote corporate brands through social media. These individuals are typically classified as independent contractors, but are they really employees?

In a just-released Advice Memorandum found here, the NLRB General Counsel’s office (“GC”) publicized its position that employers must bargain with their unions before implementing new social media policies. The Memo “casually” notes that work rules, such as social media guidelines, provide an independent basis for discipline and are mandatory subjects of bargaining.  According to the GC, even if an employer navigates around the ever-increasing landmines set by the Board and GC in developing a social media policy, employers must also seek union approval before implementing the policy, unless, of course, the underlying collective bargaining agreement contains a clear and unmistakable waiver of the union’s right to bargain over such policies.…

Continue Reading NLRB General Counsel Keeps Unfriending Employer Social Media Policies

In a recent article appearing in Illinois Banker magazine, “Beyond Social Media Policies: Have Other Common Employer Policies and Practices Been Struck Down by the National Labor Relations Board,” Reed Smith Chicago partner Jim Burns discusses some of the more aggressive positions that the National Labor Relations Board (NLRB) has taken against certain common workplace…

NLRB: Employers cannot forbid employees from disparaging their employers and companies.

An NLRB Administrative Law Judge, following the lead of the NLRB from its recent decision in Costco Wholesale Inc., invalidated social media and other employment policies of DISH Network, Inc. Linked here is that decision. The invalidated policies (1) prohibited employees from disparaging the company on social media sites; (2) required preapproval from management before speaking about the company to the media or at public meetings; and (3) limited employee communication with government agencies.…

Continue Reading Employers Take Notice: Scrutinize Your Social Media Policies Now!

Following the lead of Maryland and Illinois, California is the latest state to stop employers from requesting social media log-in information, such as user names and passwords for Facebook, Twitter, or e-mail, from employees and job applicants. The new law also includes protections from employer retaliation against employees who refuse to provide this personal access…

The National Labor Relations Board (“NLRB”) is expected to issue a ruling shortly on whether employers can lawfully prohibit their employees and unions from using employer-owned e-mail and intranet systems to distribute union campaign materials. An NLRB decision favoring employee and union use of these internal communication avenues for union organizing and other NLRA-protected activities would effectively extend and be the NLRB’s “blessing” of its Acting General Counsel’s social media “rules” and guidelines discussed here and here.…

Continue Reading Employer’s E-Mail System May Become Tool for Union Organizing

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon issued his third report on social media cases handled by the NLRB. Copies of all three memos are available here, here and here, in the order issued. Our previous blog post discussing the second memo can be found here.

The most recent, third report reviews 7 social media policies, finding 6, at least in part, violative of the National Labor Relations Act. Solomon found  the seventh policy compliant with the Act and attached that full policy to his memo.

Extracted from the six “violation” cases are the following examples of impermissible elements of social media policies.…

Continue Reading NLRB General Counsel Issues Third Report on Social Media Cases

Employers are becoming more aware of the impact of Facebook and the type of information it can reveal. Some employers use Facebook to find background or character information about their employees or job applicants. Other employers use Facebook to find out whether employees have disclosed information about the employer’s business. Some employers are taking it a step further by requesting that job applicants and/or current employees disclose their Facebook user name and password. Other employers are asking applicants and/or employees to "friend" its human resource manager or log into a company computer during interviews to view their Facebook content.

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Continue Reading Accessing Facebook Through Employers: Is The Juice Worth The Squeeze?