BNA's Social Media Law & Policy Report launched in 2012, which was a busy year for social media law. Here are three major trends from last year:

NLRB Focuses on Social Media

The National Labor Relations Board made its stance clear: federal labor law limits employer discipline for employee social media communications and governs the contours of social media policies. Although many employers may view the National Labor Relations Act as applying only to unionized workplaces, the board made clear that the law's restrictions cover non-union companies as well.

Acting NLRB General Counsel Lafe E. Solomon released his second and third guidance memoranda on the NLRA and social media on Jan. 24, 2012, and May 30, 2012. The chief issue in those memoranda, as well as in rulings from the full board and ALJs, was whether disciplinary actions taken by employers for the social media communications of employees violated Section 7 of the NLRA. In relevant part, that section protects employees' rights to "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

For example, in Hispanics United of Buffalo Inc., N.L.R.B., No. 03-CA-027872, 12/14/12, the board held that an employer unlawfully fired five employees over their Facebook comments about a co-worker who criticized their performance. The board said it was "no question" that an employee's wall post that she had "about had it" with the co-worker, to which four co-workers responded, was protected concerted activity under Section 7 of the NLRA.

States Enact or Propose Social Media Privacy Bills

News that a public employee in Maryland was asked by his employer to disclose his Facebook login credentials prompted Maryland to adopt the nation's first law to limit company requests for the user names and passwords of employees and job applicants became a national trend. Soon after, similar bills swept the country.

Illinois, California, and Michigan joined Maryland in 2012 with new laws to limit the practice. Legislatures in Michigan, Ohio, Pennsylvania, and South Carolina, among others, considered similar bills that did not pass.

Measures protecting current and prospective students at institutions of higher education also became a legislative trend. Delaware, California, New Jersey, and Michigan all enacted student social media privacy laws in 2012.

Courts Tackle Social Media E-Discovery

Federal district courts last year grappled with what constituted an appropriate discovery request for information on social media outlets. The rulings appeared to make clear that social media certainly is discoverable, but also warned plaintiffs or defendants that overly broad requests would be denied.

Many courts approvingly cited the no "fishing expedition" admonition of Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012). The Tompkins court held that discovery rules do not permit a party "to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Planitiff's Facebook account."

In December, a federal magistrate judge summarized recent social media e-discovery trends at a Sedona Conference® webinar. Kristen L. Mix, of the U.S. District Court for the District of Colorado, said in social media matters she has seen courts becoming more involved in the scope of the production, litigants increasingly requesting confidential treatment of social media content, courts using what she called "QSIC" (questionnaires, special masters, in camera review, and cost sharing), and judges imposing more sanctions.

Copyright 2012, The Bureau of National Affairs, Inc.