According to the results of a study announced today by the Pew Research Center, there has been a significant increase since 2005 in the percentage of adults who are online that participate in social networking. Notably, Pew says that 72% of online adults use social networking sites – and the growth is not just in younger adults. Pew reports that

those ages 65 and older have roughly tripled their presence on social networking sites in the last four years—from 13% in the spring of 2009 to 43% now.

Besides being a telling statement about the rapid transformation in our society, fueled by technology, it also should serve as a reminder to employers that an increasing percentage of their workers regularly engage in social media activity that in all likelihood is for both personal and business purposes. For many employers, existing policies and procedures have not caught up with technology and societal trends, such as indicated in the Pew report. When many employers set out to tackle social networking, they often are surprised about some law changes and other developments over the past few years. Here are some examples:

  • Do our discrimination policies need to cover on-line activity?
    • If not, they probably should be revised accordingly.
  • We want our employees to promote our products and services online, do we need to guide them about how to do so?
    • Well, yes. For example, you need to consider FTC guidelines which address appropriate online endorsements. If you are in the finance industry, you may have FINRA and SEC obligations. 
  • Of course, we do not want employees to be posting all over Facebook, LinkedIn and Twitter disparaging comments about the company. We could prohibit that right?
    • No, not really. Doing so could put you in legal hot water with the National Labor Relations Board – whether you have union employees or not.
  • Some of our managers like to review applicants’ public social media profiles. Are there risks there?
    • There can be. If the profile includes information about the manifestation of disease in the family members of the applicants (including an applicant’s spouse), for example, digging deeper into that information could expose the company to a discrimination claim under the Genetic Information Nondiscrimination Act. 
  • Seeing this increase in adult participation in social networking, we want to screen more applicants’ social media accounts before making offers of employment, so we have included a place on our job application for the individuals to put usernames and passwords to all social networking accounts. Is this a good risk avoidance strategy? 
    • Probably not. Many states have passed or are considering new laws that prohibit employers from asking employees or applicants about this information.
  • Can we at least prohibit employees engaged in social networking from disclosing all confidential information of the company?
    • Not if the prohibition is stated that broadly. You must narrow the scope of that information to the kind of information that would not infringe on an employee’s right to engage in "protected concerted activity" – that is, very generally, an employee’s right to commiserate with other workers about working conditions.    

Regulating employee social networking activity can be a legal minefield, but given the increasing presence of employees in that medium, there is no time like the present to begin addressing this issue in the workplace.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.