The times are still a changin': technology's continued impact on labor and employment law.

• Author: Hearing, Gregory A.
• Position: Special Issue: Technology & the Practice of Law

Today, technology constantly impacts our lives. The workplace is no exception. For many employers, technology is a key business tool. For most employees, using electronic devices and social media is a daily ritual. (2) This article surveys the areas in which technology has impacted labor and employment law in recent years.

Technology and the National Labor Relations Act

Employers, whether or not they have a unionized workforce, can violate the National Labor Relations Act, 29 U.S.C. [section]157 (NLRA), by maintaining overbroad technology-related policies. Section 7 of the National Labor Relations Act, 29 U.S.C. [section]157, protects employees' right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," whether they are a member of a union or not. Protected concerted activities involve employees joining in concert to affect wages, hours, and other terms and conditions of employment.

Employers' social media policies frequently run afoul of the NLRA. According to the National Labor Relations Board (NLRB), social media policies are unlawful when they interfere with employees' [section]7 rights. The NLRB has released several recent memoranda explaining that an employer violates the NLRA by implementing policies that "would reasonably tend to chill employees in the exercise of their [[section]]7 rights." (3) In March 2015, the NLRB released a memorandum concerning employee handbooks. (4) Among other things, the memorandum identifies specific handbook provisions concerning social media, which the board deems unlawful, (5) including the seemingly innocuous provisions: "[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the employer's] business operation or reputation" and "[you may not e]mail, post, comment or blog anonymously. You may think it is anonymous, but is most likely traceable to you and the [c]ompany." (6) The board, has, however, approved of some more narrowed social media policies, including: "Do not make negative comments about our customers in any social media" and "[u]se of social media on [c]ompany equipment during working time is permitted if your use is for legitimate, preapproved [c]ompany business." (7)

Additionally, several recent cases reflect the NLRB's broad position on employees' rights under the NLRA in connection with social media. (8) Notwithstanding the broad scope of protection the NLRB has afforded social media, the fact remains that other cases have previously found a handful of circumstances in which social media speech was unprotected. (9)

Technology and Workplace Investigations

Employers regularly use technology to conduct workplace investigations. When investigating prospective employees through social media, employers generally may rely on publicly available information posted by the applicant on a social media website; however, employers must keep in mind that the information posted on social media websites is not always accurate.

Conducting such investigations is not without some risk. For instance, accessing information through social media poses the risk of stumbling upon a person's legally protected characteristics and could lead to the discovery of information regarding an applicant that may be unlawful to consider during the hiring process. (10) Should employers conduct social media investigations, it is important that they retain the results of their search, especially if a candidate is disqualified from employment as a result of his or her online postings or social media behavior. (11)

There has also been a trend nationwide to curb employers' access to employees' and prospective employees' social media accounts. Indeed, 18 states now restrict employers' abilities to demand that employees and/or applicants disclose means for accessing their personal social media accounts (i.e., usernames and passwords). (12) This trend has recently gained momentum. States began enacting such laws in 2012 and, in 2014 alone, five states (Louisiana, Oklahoma, Rhode Island, Tennessee, and Wisconsin) enacted them. (13) The statutes provide a variety of protection to employees with respect to their social media accounts.

Technology and Harassment/ Retaliation/Discrimination Claims

In the modern workplace, cell phones and other digital devices connect employees to each other constantly. Such added connectivity allows for greater employee engagement, but it also creates opportunities for harassment and blurs boundaries of appropriate conduct. Employers must keep in mind that governmental agencies and courts have viewed harassment via social media and digital devices in the same manner as they view...