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A sea change in data protection law in the European Union (EU) is about to take place, and your organization doesn’t have to be based in the EU to feel its impact.  The General Data Protection Regulation (GDPR) will take effect on May 25, 2018.  The GDPR applies not just to EU Member States, but also to U.S. organization with EU-based employees.  Any U.S. organization that has a branch, office, affiliate, franchise, or agent based in the EU should check if it must comply with the GDPR.  Failure to comply with the GDPR can lead to fines of up to 20 million euros or 4% of annual global turnover (revenue), whichever is higher.

The GDPR regulates how “personal data” of EU citizens is collected, stored, processed, and destroyed.  The GDPR definition of “personal data” has a broader meaning than how U.S. laws usually define the term.  In addition to typical identifying information (e.g., name, address, driver’s license number, date of birth, phone number, or email address), “personal data” under the GDPR includes more expansive categories of data such as salary information, health records, and online identifiers (dynamic IP addresses, cookie identifiers, mobile device IDs, etc.).  The GDPR also provides heightened levels of protection for special categories of employee data, including racial and ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, data concerning an employee’s health, sex life, or sexual orientation, and biometric and genetic data.

The GDPR has wide-ranging effects on data collection, use, and retention.  Some of the data practices regulated by the GDPR include:

  • Data processing – Consent is one legitimate basis for processing personal data of employees, but the GDPR requires that consent be freely-given, specific, informed, and revocable. This means most blanket consent provisions typically found in employment contracts are not valid.  If obtaining consent according to GDPR requirements isn’t practical, an employer might need to rely on other legal bases for processing employee data.  Processing employee data is legal if it is necessary for the performance of the employment contract, required by law, or in the employer’s legitimate interests which outweigh the general privacy rights of employees.
  • Employee monitoring – The GDPR limits what employers may do with data obtained through employee monitoring.
  • Notification – The GDPR specifies what information employers must include in notices informing employees about the kind of personal data that will be collected from them.
  • Right to be forgotten – Under certain circumstances, data subjects have the right to require data controllers to erase their personal data.
  • Data portability – A person is entitled to transfer their personal data from one electronic processing system to another without being prevented from doing so by the data controller.
  • Data breach – The GDPR governs the procedures and substantive requirements for giving notification of a personal data breach.

Now is the time to revisit your employment contracts and policies with privacy counsel to ensure compliance with the GDPR.

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“Why did you fire my wife?”  Bradley Reid Byrd posted this question on the Facebook page of Cracker Barrel.  Byrd wanted to know why his wife was let go after working for the restaurant chain for 11 years.  The post remained largely unnoticed for about a month until a comedian uploaded a screenshot of it to his Facebook page and his 2.1 million followers.  The internet outrage machine then kicked into high gear.  Multiple hashtags were created (#JusticeForBradsWife, #BradsWifeMatters, #NotMyCountryStore).  Someone started a “Brad’s Wife” Facebook page.  A Change.org petition demanding answers from Cracker Barrel was launched.

Social media makes it easy to channel the furor of the masses against an organization.  The instigator could be anyone with some connection to the organization – a former or current employee, their relatives, or a customer.  What should an organization do if it finds itself at the center of an internet controversy?

Responding to negative online comments is a delicate exercise, and missteps early on can  damage an organization’s reputation tremendously.  From a human resources perspective, the first step is to control who, if anyone, should respond.  Employees should be prohibited from making “rogue” responses on behalf of the organization.  Employers should state this restriction clearly in their social media policy and train employees on the importance of compliance.

After deciding who will handle the response, the next step is figuring out what to say.  The knee-jerk reaction to inflammatory or untrue online comments might be to threaten a defamation suit against the posters, but that can backfire and damage the organization’s reputation even more.  Sometimes the best response is to say nothing and let the controversy pass.

If a response is warranted, consider who the audience will be and how they might respond to it.  Pointing out flaws in the negative comments could be perceived as overly defensive.  On the other hand, respectfully acknowledging the negative comments or posting positive content about to organization could defuse the controversy.

Whatever the response, it should be the product of careful consideration.  On the internet, it takes just a few clicks to set off a firestorm.

 

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On January 1, 2017, the National Labor Relations Board (NLRB) Office of the General Counsel released an advice memorandum (dated September 22, 2016) reviewing the social media policy in Northwestern University’s revised Football Handbook.  The memorandum contains valuable guidance in an area full of uncertainty, as the NLRB has struck down seemingly common sense social media policies because of their potential to chill employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted protected activities.”  Section 8 of the NLRA prohibits employees from restraining employees from exercising their Section 7 rights.

According to the memorandum, Northwestern voluntarily revised its Football Handbook after receiving a charge alleging that the handbook violated the NLRA.  The advice memorandum reviewed the revised handbook for compliance with the NLRA.  Assuming for the purpose of the review that Northwestern’s football players are “employees” under the NLRA, the advice memorandum concluded that the revised social media policy passed muster.

The memorandum reprinted the original language of the policies along with the revisions in redline, as follows (deleted language in strikeout and new language in bold):

[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .

Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .

Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.

….

Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.

Although the advice memorandum did not elaborate on why the original policy could violate the NLRA while revised policy would not, it provides important clues on drafting lawful social media policies.  The modifications to the policy generally substituted vague terms like “inappropriate” and “embarrassing” with descriptions of the content that the policy prohibits.  For example, the revised policy specifically prohibits social media posts depicting “nudity,” “racial or sexual epithets,” and “underage drinking,” among other things.  The revised policy also eliminated protection of the employer’s “image and reputation” from the description of the policy’s purpose.  In previous guidance, the NLRB has determined that employers may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit “concerted protected activity” such as criticism of work conditions or compensation policies.

The recent advice memorandum reinforces the need to be precise when drafting a social media policy.  Experienced counsel can assist in identifying the types of social media content that the NLRB has allowed employers to prohibit employees from posting.

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Employees can get carried away on social media. US Airways learned this the hard way when its employee responded to a customer complaint on Twitter with an obscene picture of a woman and a toy jet. An apology and deletion of the tweet followed an hour later (an eternity in cyberspace). US Airways claims its employee made an “honest mistake,” and the incident has not spawned a lawsuit, but one can imagine situations in which the malicious online statements of an employee land the employer in legal trouble.

So what’s an employer to do? Thankfully, employers can find some solace in Section 230 of the federal Communications Decency Act (“CDA”), as a recent Indiana case illustrates. In Miller v. Federal Express Corp., an employee of a non-profit organization, 500 Festival, Inc. (“500 Festival”), and an employee of FedEx separately posted comments on media websites criticizing the plaintiff’s leadership of Junior Achievement of Central Indiana, which he ran from 1994 to 2008. Although the employees posted the comments using aliases, the plaintiff traced the comments back to IP addresses assigned to 500 Festival and FedEx and sued them for defamation.

The Indiana Court of Appeals affirmed the trial court’s dismissal of the defamation claims against 500 Festival and FedEx based on the Section 230 of the CDA. Congress passed Section 230 to protect companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. A defendant claiming Section 230 immunity must show that: (1) it is a provider or user of an interactive computer service; (2) the plaintiff’s claim treats it as the publisher or speaker of information; and (3) another information at issue was provided by another content provider. Satisfying these three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.

It’s not difficult to see how Section 230 applies where, for instance, the operator of an online discussion forum is sued for defamation based on a comment posted by a forum member. The operator easily qualifies as an “interactive computer service” and can argue it is not liable for content that someone else published. But could a corporate employer qualify for Section 230 immunity? The court in Miller said yes, siding with precedent set by California and Illinois courts. An employer that provides or enables multiple users on a computer network with Internet access qualifies as a provider of an interactive computer service. Since the defamation claims tried to hold 500 Festival and FedEx liable for allegedly publishing statements made by their employees, Section 230 barred the claims.

Controlling what employees say online can be a daunting task, but it’s nice to know that employers have some protection from legal liability for the “honest” (or not so honest) mistakes of employees.

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