Employee Data, Monitoring and Privacy

A Note discussing employee rights under the National Labor Relations Act (NLRA) and the issues employers should consider when seeking to discipline employees for the content of social media posts. This Note considers only the employee protections under the NLRA. This Note includes references to NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A template briefing for an in house lawyer to give all nonunionized employees regarding work-related e-mail and online risk. Employers with unionized employees, who are covered by collective bargaining agreements, must consider additional factors that are outside the scope of this briefing (see Practice Note, Employee Handbooks: Best Practices: Collective Bargaining Obligations). Click here to download in Microsoft Word.

This Note describes trade secrets and confidential information protections available to employers. It examines trade secret definitions and legal recourse, including misappropriation, tortious interference and breach of duty of loyalty and/or fiduciary duty claims. It also explores relevant restrictive covenants and best practices. This Note provides a general overview of federal law in this area. For information on state law, see the State Law Q&A Tools under Related Content to the right.

A brief description of social media categories and a list of principal social media websites and services. Descriptions of social media categories include blogs, social and business networking sites, digital media sharing sites, wikis, virtual worlds and MMORPGs. The descriptive list includes over 25 examples of principal social media websites and services.

Guidelines for use of social media by employees and other personnel for company marketing programs and other business purposes. This Standard Document applies only to private workplaces. It is based on federal law. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips. It should generally be used in tandem with a social media or communications system policy.

A California-specific agreement between an employer and an employee concerning confidentiality and appropriate handling of the employer's commercially valuable information, compliance with relevant security rules and policies, and protection of the employer's intellectual property assets. Agreements of this type have various titles, which may use the term "non-disclosure" in place of "confidentiality," or "intellectual property" in place of "proprietary rights." This Standard Document is drafted in favor of the employer. It is based on California law. This Standard Document has integrated notes with important explanations and drafting tips.

An employee policy for requesting access to a personnel file for the purpose of inspecting or copying relevant records. This policy can be incorporated into an employee handbook or used as a stand-alone policy document. This Standard Document applies only to private workplaces. It is jurisdiction neutral. State or local laws may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

Social media guidelines for a public company for both personal social media use and social media use as an authorized company spokesperson. These guidelines incorporate social media best practices under US securities and disclosure laws and regulations. This Standard Document has integrated notes with important explanations and drafting tips, including discussion of the impact of National Labor Relations Board (NLRB) review of social media policies. 

A Checklist of issues for employers to consider when determining whether they may lawfully discipline or terminate a unionized or nonunionized employee for objectionable social media postings. Factors include whether the postings constitute protected concerted activity under the National Labor Relations Act (NLRA), as well as consideration of state laws protecting lawful off-duty conduct. The Checklist is jurisdiction-neutral. This Checklist references NLRB precedent issued after January 4, 2012 by recess appointees to the NLRB. In Noel Canning v. NLRB, the US Court of Appeals for the District of Columbia Circuit held that the recess appointments to the NLRB were invalid, calling into question whether any of the NLRB's decisions since January 4, 2012 are enforceable. Despite the DC Circuit's holding, the NLRB continues to issue decisions by the recess appointees, seek enforcement of those decisions and rely on the recess appointees' decisions as governing law (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). PLC Labor & Employment will continue to monitor developments and update this resource to reflect applicable law.

A checklist on best practices for a company to consider in monitoring and responding to third party use of social media, including related to IP infringement, defamation and other risks.

A Q&A guide to state law on trade secrets and confidentiality for private employers in Arizona. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Colorado. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Florida. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Idaho. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Indiana. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Kansas. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Louisiana. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Massachusetts. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Minnesota. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Nevada. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in New Jersey. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in North Carolina. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Oklahoma. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Pennsylvania. This Q&A addresses the state-specific definitions of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Tennessee. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Utah. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Washington. This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them. Federal, local or municipal law may impose additional or different requirements. Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

A Q&A guide to state law on trade secrets and confidentiality for private employers in Wisconsin.  This Q&A addresses the state-specific definition of trade secrets and the legal requirements relating to protecting them.  Federal, local or municipal law may impose additional or different requirements.  Answers to questions can be compared across a number of jurisdictions (see Trade Secret Laws: State Q&A Tool).

An expert Q&A with Jeffrey S. Klein of Weil, Gotshal & Manges LLP on best practices for employers implementing a Bring Your Own Device to Work (BYOD) policy.

In the light of recent legal and technological developments in relation to e-disclosure and document storage, companies are increasingly focusing on the importance of establishing effective document retention policies. This article outlines the legal issues to be addressed when implementing or reviewing such policies, with specific reference to the law and practice in ten jurisdictions.

An expert Q&A with Bettina (Betsy) Plevan of Proskauer Rose LLP on minimizing the risks associated with improper and inappropriate use of social media in the workplace and creating an appropriate social media policy. 

Arkansas recently enacted Act 1480, which prohibits an employer from requiring or requesting a current or prospective employee to disclose his username or password for a social media account.

New Mexico recently enacted the No Social Media Access for Employers Act (SB 371), which prohibits employers from requesting or requiring that a prospective employee provide a password or access to the prospective employee's social networking account.

Utah recently enacted the Internet Employment Privacy Act (IEPA), which bans employers from asking employees and job applicants to provide login information for their personal internet accounts. 

Resources to help employers lawfully engage in electronic monitoring and surveillance of their employees.

The Obama administration has released its Administration Strategy on Mitigating the Theft of U.S. Trade Secrets. The strategy was released in response to the increase in economic espionage and trade secret theft against US corporations.

This Legal Update highlights resources to help employers manage requests by employees to access their personnel files.

President Obama signed the Theft of Trade Secrets Clarification Act of 2012, which clarifies that the scope of the Economic Espionage Act of 1996 covers products and services used or intended for use in interstate commerce or foreign commerce.

This Law Firm Publication by Jackson Lewis LLP discusses New York's new law safeguarding Social Security Numbers (SSN). Under Section 399-ddd of New York’s General Business Law, effective December 12, 2012, a person may not be required to disclose or furnish his SSN for any purpose. The new law applies to employers and certain other entities in the state. Businesses must review their practices relating to employees, customers and other individuals in situations where all or a part of the SSN is involved. An SSN includes not only the nine-digit number issued by the Social Security Administration, but also any number derived from the SSN, unless the number is encrypted.

This Legal Update provides employers considering a Bring Your Own Device to Work (BYOD) policy with guidance and drafting tips.

California Governor Jerry Brown signed multiple employment-related bills into law in September 2012, covering such areas as wage payment laws and notification requirements, anti-discrimination laws and social media laws.

This Law Firm Publication by Jackson Lewis LLP discusses Assembly Bill 1844 and Senate Bill 1349, two bills signed by California Governor Jerry Brown on September 27, 2012. Assembly Bill 1844 limits when employers may ask applicants and employees for their social media passwords and account information, although the law allows employers to ask an employee to reveal personal social media activity that it reasonably believes is relevant to an investigation into employee misconduct. Senate Bill 1349 creates similar prohibitions for postsecondary education students. The laws take effect on January 1, 2013.

This Law Firm Publication by Jackson Lewis LLP discusses new restrictions on requests for Social Security Numbers signed into law by New York Governor Andrew Cuomo on August 14, 2012. The new law will limit certain entities, including employers, from requiring individuals to disclose their Social Security Numbers for any purpose. Exceptions to the rule are provided for fraud investigations and criminal record checks, among other purposes. Employers and other entities who violate the law may be subject to civil penalties. The law becomes effective December 12, 2012.

This Law Firm Publication by Jackson Lewis LLP discusses the Texas Court of Appeals' recent decision in Sumien v. Careflite involving an employee's termination because of inappropriate posts on Facebook. The employer's motion for summary judgment on the claim of intrusion upon seclusion was granted. The court found that the employee's ignorance about Facebook's privacy settings did not preserve his legal claim.

This Law Firm Publication by Jackson Lewis LLP discusses Ohio HB 99, which prohibits writing, sending and reading text messages on a handheld electronic wireless communications device while driving. The bill has passed the legislature and Governor Kasich has indicated he will sign it. The bill will be effective 90 days after the Governor’s signature. However, it includes a six-month grace period during which authorities may only issue written warnings to drivers who violate the ban. HB 99 provides ten exceptions to the ban on texting for adults, including texting for emergency purposes and using a hands-free device feature of a vehicle. In light of this development, Ohio employers should implement written policies banning texting while driving when employees are working.

On April 11, 2012, the US Court of Appeals for the Second Circuit issued its opinion in US v. Aleynikov holding that Sergey Aleynikov, a computer programmer who stole valuable and confidential source code from his employer, Goldman Sachs, did not violate the National Stolen Property Act (NSPA), the Economic Espionage Act of 1996 (EEA) or the Computer Fraud and Abuse Act (CFAA).

The General Counsel of the National Labor Relations Board (NLRB) released a report dated January 24, 2012 that summarizes its guidance in recent unfair labor practice (ULP) cases involving employer responses to employees' use of social media. The report provides guidance on the lawfulness of employer social media policies under the National Labor Relations Act (NLRA).

A list of new California employment-related laws effective on January 1, 2012 and covering areas such as pay notices, credit checks, pregnancy disability leave and independent contractors, among others.

This Jackson Lewis LLP memorandum discusses an amendment to the Illinois data breach notification law, which becomes effective January 1, 2012. Under the amendment, breach notifications must include contact information for consumer reporting agencies and the FTC to help individuals affected by the breach obtain information about fraud alerts and security freezes. The amended law also requires third-party data collectors to cooperate with information owners by notifying them about the date and nature of any breach, as well as any steps taken relating to the breach.

Three advice memoranda from the General Counsel's office of the NLRB acknowledge that there are limits to the kinds of employee comments on social media that the National Labor Relations Act (NLRA) protects.