Our colleagues at the Technology Law Source Blog advise of a new interesting case concerning the discovery of social media account information in a disability discrimination case. There are two noteworthy pieces to this case. First, the New York federal court judge provides a good roadmap as what information posted on social networking sites is

Describing it as a “rather novel issue,” a federal court recently held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer. [See Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, Doc. 31 (Jan. 22, 2013), Report and Recommendation affirmed and adopted, Doc. 32 (Feb. 12, 2013)] The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, they did not contain any information about the new employer, and they were sent by Twitter instead of as targeted email blasts by the former employee.

Though the court found that the former employee’s social networking activities did not constitute solicitation under his agreement, it did enter a preliminary injunction against the former employee based on his direct solicitation of one of his former co-workers through a private in-person meeting and follow up text messages sent to the co-worker. The court entered the injunction until the issues could be presented to an arbitrator pursuant to the parties’ arbitration agreement.


Continue Reading Facebook Posts Not “Solicitation” Under Former Employee’s Restrictive Covenant Agreement

Naked pictures? Drunken celebrations? Sexist comments? A click of a button and all evidence of your “Weekend at Bernie’s” can disappear. Job seekers know to scrub clean their Facebook pages before they connect with potential employers, to remove all trace of their off-color on-line life. But here in Ohio you can’t delete your way out

On Thursday May 24, 2012, State Senator Charleta Tavares of Columbus introduced a bill that would prohibit employers from asking applicants or employees for their social media password. The bill follows a trend started in Maryland and followed by at least 11 other states (plus Congress) that would prohibit this employer practice.

Is this legislation necessary? Well, I was asked this question on 10TV in Columbus last Thursday night and my answer was an emphatic "No!" Though this type of legislation seems to be "trending" nationwide, the examples of employers that actually require their applicants or employees to turn over their passwords are actually few and far between. Indeed, the two employers that were outed by the press in recent years for this requirement — the City of Bozeman, Montana, and the Maryland Department of Corrections (both public employers, incidentally) — were deluged by so much negative press and public outcry that they stopped the practice.

This is not to say that employers don’t have valid reasons for reviewing applicant and employee social media activity. They most certainly do. But in most industries, they don’t have any real need or obligation to look through anything other than what the individual makes public through their chosen privacy settings. In those limited instances where an employer may have a legitimate need to inquire further — think law enforcement, financial sector and daycare settings, for instance — they should be able to ask applicants for access to their Facebook pages. It’s up to the applicant to decide whether to provide it.

In addition to the court of public opinion, there are other reasons for employers not to ask for social media passwords. Identifying, recruiting and retaining qualified employees is difficult enough for employers without creating a "Big Brother" environment that inevitably will turn off applicants and employees who don’t want to work in that kind of environment for fear that petty indiscretions on their Facebook pages will hamper their employment opportunities.


Continue Reading Bill Introduced In Ohio Legislature To Restrict Employer Social Media Password Inquiries