Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

In the letter to the DOJ the senators write: “[g]iven Facebook terms of service and the civil case law, we strongly urge the Department to investigate and issue a legal opinion as to whether requesting and using prospective employees’ social network passwords violates current federal law.” Specifically, the senators ask the DOJ investigate whether requesting this information:

violates the Stored Communication Act or the Computer Fraud and Abuse Act. The SCA prohibits intentional access to electronic information without authorization or intentionally exceeding that authorization, 18 U.S.C. § 2701, and the CFAA prohibits intentional access to a computer without authorization to obtain information, 18 U.S.C. § 1030(a)(2)(C). Requiring applicants to provide login credentials to secure social media websites and then using those credentials to access private information stored on those sites may be unduly coercive and therefore constitute unauthorized access under both SCA and the CFAA.

The letter also notes that two federal courts have determined that supervisors may be subject to civil liability under the SCA by accessing otherwise private employee information with requested login credentials.

The senators sent a separate letter to the EEOC asking the agency to investigate whether requesting applicant login information violates employment discrimination statutes. According to the senators, job applicants and employees often post online personal information such as religious views, national origin, family history, gender, marital status, and age. “If employers asked for some of this information directly, it would violate federal anti-discrimination law. We are concerned that collecting this sensitive information under the guise of a background check may simply be a pretext for discrimination.”

The lawmakers say they intend to introduce legislation to curb this practice.

For more information on this trend, see Littler’s ASAP: Not Yet Banned, But Requiring Social Media Information Is a Bad Idea by Chris Leh.

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The FTC’s revised Guides Concerning the Use of Endorsements and Testimonials in Advertising, published in the Federal Register at 16 C.F.R. Part 255 (the “guidelines”), address the application of Section 5 of the FTC Act (the “Act”) – which prohibits unfair or deceptive acts or practices and unfair competition in or affecting commerce -- to the use of endorsements and testimonials in advertising.

In the guidelines, the FTC identifies the general principles it will apply when evaluating whether endorsements and testimonials, including those given by employees about their employers’ products and services, are deceptive. The guidelines provide specific examples, and suggest that employees endorsing their employer’s products or services have a duty to disclose to their audience their relationship to an employer at the time they give the endorsement or testimonial. To be an endorsement or testimonial subject to these guidelines, the posting must be a message “that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The party whose opinions, beliefs, findings, or experience the message appears to reflect will be called the endorser...” 16 C.F.R. Part 255.01(b).

The duty of disclosure applies even when the employee’s endorsement appears on a site that is not maintained by the employer or employee (such as a popular “bulletin board”) and the statement itself is not misleading. See 16 C.F.R. Part 255.5 (entitled “Disclosure of material connections”), Example 8. Failure to make such disclosure may expose the employer to liability under the Act.

If employees make misleading statements about the employer’s products and services that result in injury to consumers, the FTC may bring an enforcement action against the employer. The FTC reports that it has brought enforcement actions against employers “whose failure to establish or maintain appropriate internal procedures” had resulted in consumer injury, but the FTC suggested in comments on the guidelines that it would be unlikely to take action against an employer for the conduct of a single “rogue” employee whose conduct violated an adequate company policy.

Additionally, because postings on blogs and Facebook pages can reach wide audiences, employers may be vulnerable to large-scale liability like class-action lawsuits by consumers and/or legal action by state attorneys general.

In view of this latest possible exposure to employers from employees’ use of blogs and social websites, employers should consider reviewing their electronic communications or social media policies to ensure: (1) that they have policies addressing the use of the company’s name, trademarks, and other proprietary information in blogs and other social media; and (2) that these policies include either prohibitions or appropriate guidance regarding references to company products or services. Such prohibitions and/or guidance should no longer be limited to criticisms of the employer and its products and/or services. Endorsements, if permitted at all, should be limited to truthful and verifiable statements, or should be subject to prior approval by management. And in either event, such statements must be accompanied by an employee’s written disclosure of the employment relationship so that consumers can fairly weigh the testimonial.

This entry was written by Lisa Brauner.

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