LEGAL ISSUES IN SOCIAL
MEDIA AND SOCIAL
NETWORKING
ARTHUR R EHRLICH
GOLDMAN & EHRLICH
20 SOUTH CLARK STREET
SUITE 500
CHICAGO, ILLINOIS 60603
312-332-6733
Arthur@GoldmanEhrlich.com
www.GoldmanEhrlich.com
Follow me on Twitter @GoldmanEhrlich
ILLINOIS PROHIBITS REQUESTING ACCESS TO EMPLOYEE’S
SOCIAL NETWORKING SITE


820 ILCS 55/10 PROHIBITED INQUIRIES (Effective:
January 1, 2014)
(b)(1) Except as provided in this subsection, it shall be
unlawful for any employer to request or require
any employee or prospective employee to provide
any password or other related account information
in order to gain access to the employee's or
prospective employee's account or profile on a
social networking website or to demand access in
any manner to an employee's or prospective
employee's account or profile on a social
networking website.
II.
SOCIAL MEDIA AND THE NATIONAL
LABOR RELATIONS BOARD (NLRB)
29 U.S.C.A. § 157
§ 157. Right of employees as to
organization, collective bargaining, etc.

Employees shall have the right to selforganization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection,
29 U.S.C.A. § 158
§ 158. Unfair labor practices
(a) Unfair labor practices by employer
It shall be an unfair labor practice for
an employer—
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights
guaranteed in section 157 of this title;
CONCERTED ACTIVITY
1.
INCLUDES STATEMENTS OR ACTIVITIES
MADE “WITH THE OBJECT OF INITIATING OR
INDUCING OR PREPARING FOR GROUP ACTION OR
THAT HAVE SOME RELATION TO GROUP ACTION IN
THE INTEREST OF THE EMPLOYEES.”
“ACTIVITIES CARRIED OUT BY INDIVIDUAL
EMPLOYEES MAY BE CONSIDERED TO BE
CONCERTED.
2.
3.
“MERE GRIPES” ARE NOT CONCERTED
ACTIVITY
4.
5.
6.
NLRB PROTECTIONS OF CONCERTED ACTIVITIES
APPLY REGARDLESS OF WHETHER THERE IS A
UNION
EMPLOYEE CONDUCT DOES NOT LOSE NLRA
PROTECTION MERELY BECAUSE COMMENT MAY
HAVE AN ADVERSE EFFECT ON THE COMPANY’S
BUSINESS
USE OF PROFANITY DOES NOT LOSE PROTECTION
EMPLOYER HAND BOOK RULES ON
SOCIAL MEDIA USE
EMPLOYER’S POLICY ON SOCIAL MEDIA THAT IS OVER
BROAD OR AMBIGUOUS MAY BE DEEMED TO HAVE “CHILLING
IMPACT” ON SECTION 7 RIGHTS TO ENGAGE IN CONCERTED
ACTIVITIES
NLRB FOCUS: WOULD AN EMPLOYEE
REASONABLY CONSTRUE THE LANGUAGE OF THE POLICY AS
PROHIBITING HIM OR HER FROM ENGAGING IN ACTIVITY
PROTECTED BY SECTION 7 OF NLRA

III. USE OF SOCIAL MEDIA POSTINGS AND
SOCIAL NETWORKING SITES FOR
SCREENING EMPLOYEES
A.
IGNORANCE IS BLISS
POTENTIAL CONSEQUENCES
1.
Gaskell v. University of Kentucky,
MSJ denied in failure to hire case when
search committee knew about plaintiff’s on line
article about creationism
2.
Neiman v. Grange Mutual Casualty Co.,
Motion to dismiss denied based on
plaintiff’s allegation that defendant knew his age
because he listed his year of graduation on his
LinkedIn profile
B.
IV. SOCIAL MEDIA POSTINGS IN
TITLE VII ACTIONS
A. EEOC public meeting in March
2014 about the potential for misuse of
social media sites, which could lead to
discrimination or harassment claims.
“ social media posting by a coworker may contribute to the creation
of an unlawful hostile work
environment,”
B.
SOCIAL MEDIA POSTINGS MAY
CONSTITUTE NOTICE OF HARASSMENT TO
DEFENDANT
C.
EMPLOYER CAN LIMIT POTENTIAL
LIABILITY BY TAKING ACTION WHEN
EMPLOYEES ENGAGE IN INAPPROPRIATE
SOCIAL MEDIA ACTIVITY USING EMPLOYEROWNED DEVICES AND ACCOUNTS
D.
AMMUNITION FOR DEFENDANT
1. Gelpi v. AutoZoners,
SEXUAL HARASSMENT CLAIM BASED
ON HOSTILE ENVIRONMENT
REJECTED WHEN PLAINTIFF’S
FACEBBOOK PAGE REVEALED THAT
SHE WAS VERY COMFORTABLE WITH
SEXUAL HUMOR AND PARTICIPATED
SEXUAL JOKES AND BANTER AT
WORK
2.
PLAINTIFF SOCIAL MEDIA
POSTINGS ARE SUBJECT TO DISCOVERY
OFFENSIVE POSTINGS CAN BE GROUNDS
FOR TERMINATION
SMIZER V. CMTY. MENNONITE EARLY LEARNING
CTR., 538 F. APP'X 711, 714 (7TH CIR. 2013)
THE FAMOUS BURR ANDERSON
SUCCESSFULLY ARGUED THAT PLAINTIFF WAS
PROPERLY TERMINATED FOR MAKING OFFENSIVE
COMMENTS ABOUT COWORKERS ON A SOCIAL
MEDIA SITE
ARTHUR R EHRLICH
GOLDMAN & EHRLICH
20 SOUTH CLARK STREET
SUITE 500
CHICAGO, ILLINOIS 60603
312-332-6733
Arthur@GoldmanEhrlich.com
www.GoldmanEhrlich.com
Follow me on Twitter @GoldmanEhrlich