Our 2015 monthly Privacy Issues Wednesday webinar series continued this month with Jennifer Rubin and Gauri Punjabi’s Privacy in the Workplace presentation. Jen and Gauri discussed the latest statutory and common law developments concerning employer monitoring of employee email, access to employee social media accounts, social media policies, and bring your own device (“BYOD”) policies. We were pleased to host over 125 participants for this webinar.
For those missed the webinar, some of the key takeaways for employers include the following:
- While there is not much federal or state statutory authority on employer monitoring of employee email access, employers are advised to provide employees with prior notice of such monitoring and obtain their consent to do so.
- Many states now prohibit employers from requesting access to their employees’ or job applicants’ social media accounts. This trend, along with the number of other states that have considered passing similar legislation, suggests that Congress may soon weigh in on this issue.
- The National Labor Relations Act applies to all employers, regardless of whether the workplace is unionized, and protects employees who use social media to discuss their wages, hours, and other terms and conditions of employment (i.e., concerted activity). Employers cannot prohibit employees from using work email accounts to have such discussions during non-working time. Employees will lose the protection of the Act when their actions disparage the employer’s products or services and/or create a risk of harm to the employer or to others.
- Social media policies should specify the nature of conduct that is permitted and prohibited and should not utilize broad language that could encompass the right of employees to engage in protected concerted activity. Social media policies should also take into account an employer’s need to protect trade secrets, comply with industry regulations and applicable federal and state employment statutes, and preserve information relevant to litigation.
- BYOD policies often result in lower employer costs related to device overhead (purchase/maintenance), improve employee productivity, and result in greater employee job satisfaction. Prior to implementation, however, employers should consider the process for monitoring compliance with other company policies, keeping track of wages owed to non-exempt employees who use their personal devices to work outside of the office, and maintaining the security of company information that ends up on an employee’s personal device and ensuring its removal once the employee leaves the company.
The next webinar in the Privacy series — Responding to Insider Theft and Data Disclosure — will take place on Wednesday, March 25, 2015. This webinar will offer practical advice about responding to data theft and disclosures by employees and former employees. We will cover such topics as conducting a proper investigation, utilizing state and local civil court processes to deter, halt, and remediate data thefts, and when and how to engage local and/or federal law enforcement. This webinar will be presented by members of Mintz Levin’s privacy and data security and white collar crime practice groups.
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