Technology has a big impact on work and laws. Employers can get in trouble if their technology policies limit employees’ rights to work together for better pay and conditions. This is true whether or not the employees are in a union. The law protects employees’ right to work together for better pay and conditions. Employers’ social media policies can’t interfere with employees’ rights. The National Labor Relations Board says that some policies are unlawful because they could stop employees from exercising their rights. The NLRB has also said that it’s okay for employers to have some rules about social media, like not making negative comments about customers or using social media for work. Employers sometimes use social media to check on job applicants, but they have to be careful not to use information that they’re not supposed to know. Some states have laws that stop employers from asking for access to employees’ or job applicants’ social media accounts. Cell phones and social media make it easy for people to harass each other outside of work. Employers can be held responsible for this harassment if they know about it and don’t do anything to stop it. There have been cases where employers had to pay large amounts of money because they didn’t stop their employees from harassing each other on social media. Technology also raises issues with employees working off-the-clock by checking emails and taking calls outside of work hours. In order to avoid these problems, employers should have rules against employees working outside of their scheduled hours and make sure those rules are followed. In Florida, employees who post negative things about their job or employer on social media may not be eligible to receive unemployment benefits. When deciding if an employee’s social media posts are misconduct, the unemployment office looks at things like what was said, whether the employer was harmed, and if the employee had been warned. Public employees also have some protection under the First and Fourth Amendments when using social media, but not all claims are successful. For example, a court ruled that simply “liking” political content on Facebook is protected speech. The Fourth Amendment protects public employees from unreasonable searches, but it’s unclear how this applies to social media. The Electronic Communications Privacy Act and Stored Communications Act also protect employees from unauthorized access to their stored communications. In employment litigation, social media material can be discovered if it’s relevant to a claim or defense. Courts are getting better at handling social media discovery, and some recent Florida cases have dealt with requests for social media documents. Employment lawsuits involving technology like “bring your own device” policies and social media can affect the evidence that can be used in court. For example, a court denied a request for text messages from employees’ personal phones because the employer didn’t have the right to get them. Settlement agreements can also be affected by technology, like in a case where a daughter’s Facebook post violated a confidentiality provision in her father’s settlement agreement. It’s important for both employers and employees to be aware of these issues and stay updated on new developments in the law. The impact of technology and social media on the workplace is significant. 72 percent of workers access social media at work, with 28 percent spending at least an hour a day on social networking sites. The National Labor Relations Board (NLRB) has issued memos on the use of social media in the workplace, and there have been cases where employees were terminated for their social media activities. Some cases have found that certain social media comments were not protected under the National Labor Relations Act (NLRA), while others have found that certain handbook policies did not violate the NLRA. The U.S. Equal Employment Opportunity Commission discussed employers’ use of social media in 2014. A court case denied summary judgment for a defendant in a failure to hire case due to a Facebook post. Some states have laws to protect workers’ social media privacy. A bill in Florida about social media privacy died in committee. Workplace harassment is still a major problem. Fry’s Electronics paid $2.3 million to settle a sexual harassment and retaliation lawsuit. A Florida court found that misconduct includes a deliberate violation of an employer’s standards of behavior. Some court cases have supported First Amendment claims based on social media comments, while others have failed when posting confidential information. Courts have made different rulings on whether employers can access employees’ social media accounts. Some cases have allowed it, while others have ordered the production of social media posts. However, social media content is generally not considered private, but employers can’t ask for too much information. Some courts have also excluded social media evidence if it’s not properly authenticated. Overall, the rules about social media in the legal system are still evolving. Gregory A. Hearing is a managing partner at a law firm that focuses on labor and employment law. He is very experienced in this area and has a law degree from Florida State University. He is also certified in labor and employment law, civil trial, and education law.
Source: https://www.floridabar.org/the-florida-bar-journal/the-times-are-still-a-changin-technologys-continued-impact-on-labor-and-employment-law/
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