Social Media – Balancing Employer and Employee Rights in the Digital Age
The prevalence of social media has permeated every aspect of our lives—at work and at home. Social networking is now more popular than e-mail and Facebook currently has 900 million active users. It should also come as no surprise that increasingly employees are mixing their personal and work content on social media sites. Thus, the social media explosion presents challenges for employers who want to utilize social media to screen potential candidates and set guidelines for their employees’ social media usage that impacts the organization’s business and proprietary interests.
Social media and hiring – to look or not to look. Employers, human resources professionals and recruiters routinely search the internet on prospective applicants, including review of the applicant’s personal website or blog, Twitter account, Facebook, LinkedIn, etc. Researching an applicant’s social media content is not simply about “digging up dirt,” this research could protect an employer from future risk. Specifically, an applicant with negative social media content could prevent an employer from a future negligent hiring claim if the employer knew or should have had knowledge of an employee’s dangerous or criminal propensities. On the flip side, an employer’s research into an applicant’s personal life and social media habits in areas that touch on a protected area or class (e.g., sexual orientation, race, religion, disability, political expression) could expose an employer to discrimination lawsuits brought by rejected applicants. Even if the employer did not use any of the social media research in its decision not to hire the applicant, it could be difficult for an employer to prove that the mere possession of this information did not weigh into the hiring decision. So, what should an employer do to balance this risk? Consider outsourcing the research to a third party who is not involved in the hiring decision. Be specific about what the research should include or not include; for instance, you do not want to know any information they find related to protected characteristics or activities. If you decide to perform the research in-house, make sure it is performed by an administrative employee who is not involved in the hiring decision and who will not supervise or work with employee.
Social media in the workplace – can I monitor an employee? Employees generally have no right to privacy in the workplace. There is, however, a balancing that must be implemented to ensure a an employee’s right to privacy in the virtual realm with the employer’s right to monitor and access an employee’s actions that impact the organization. There are many reasons why an employer would want to monitor an employee’s social media usage, for instance: loss or productivity at work while surfing the internet, chatting, tweeting and blogging; loss of confidential and proprietary information; defamation or revealing of private facts; to prevent harassment and discrimination; to comply with document retention/destruction policy; potential waiver of attorney-client policy; and to screen for potential FTC violations.
Typically, an employer may monitor an employee’s digital/social media usage if the employee expressly or impliedly consents (by acknowledging and signing an internet/e-mail policy) and the communications are not “intercepted” or fraudulently obtained. There is also the potential that in accessing an employee’s social media content the employer could be at risk for potential privacy claims; free speech claims; violation of the National Labor Relations Act; violation of the Electronic Communications Privacy Act; creation of unwanted obligation to act regarding knowledge; obtaining unwanted knowledge regarding employee’s protected status; and whistleblower protection. Notably, in January 2012, and most recently, on May 30, 2012, the National Labor Relations Board (NLRB) issued memoranda to provide guidance to employers, employees and unions regarding social media policies. Since the National Labor Relations Act applies to all employers whether or not they are unionized, the Board’s position should be considered in developing the organization’s policies on employees’ use of social media. Links to the Board’s January 24, 2012 and May 30, 2012 memos, OM 12-31 and OM 12-59 can be accessed at https://www.nlrb.gov/publications/operations-management-memos. Since this area is fraught with many potential traps for the employer, an employer should carefully consider these memos and consult with an attorney in preparing or revising their social media policy.
Best practices for developing a social media policy. An employer’s written policy and consistent application of the policy can enhance the employer’s ability to monitor their employees’ use of social media at the workplace. In addition to an electronic communication policy that regulates the usage of e-mail and internet, the policy should clearly articulate with respect to all digital media content, (1) there is no expectation of privacy; (2) all communications on company systems (computers, cell phones, PDAs, etc.) may be monitored; (3) limit use of the employer’s intranet, network and internet and company devices for business purposes only; and (4) prohibit use of personal electronic devices during work time.
An employer’s policy that attempts to restrict or limit an employee’s right to engage in social media related to the employer implicates the NLRA’s Section 7 rights of employees to organize, strike or, in general, to engage in protected, concerted activity. Therefore, based on the Board’s January 24, 2012 and May 30, 2012 memoranda, employers should craft social media policies as narrowly and as specifically as possible to address bona fide employer concerns as opposed to Section 7 rights. For instance, the Board has repeatedly found unlawful portions of employers’ social media policies that are vague, ambiguous and fail to provide context to clarify rules that would not impede upon employees’ protected Section 7 activities, namely the employee’s terms of employment and work conditions. Policies which broadly proscribe “insubordinate” comments, disclosure of “confidential” information or “inappropriate” activity are more likely to be struck down since the terms may be construed by employees to proscribe lawful employee discussions regarding wages and working conditions. Even a policy against “defamatory” web entries was struck down. Thus, an employer rule proscribing “[m]aking disparaging comments about the company through any media, including online blogs, and other electronic media or through the media” was deemed unlawful. With these guidelines in mind, a social media policy should include, at a minimum, narrowly tailored provisions on the following key areas of concern:
- Employees should identify themselves when promoting the company’s product or services or linking to the company’s website or products;
- Employees shall not violate copyright laws;
- Employees shall not disclose confidential or proprietary information related to the company (note: according to NLRB, specifically describe and define the type of confidential or proprietary information that is prohibited from dissemination such as trade secrets, technology know-how and internal business communications);
- Employees shall not use derogatory, defamatory or discriminatory language (this provision shall be narrowly tailored so as not to run afoul of the NLRB’s guidance memo);\
- Unless clearly work-related, social networking activities should be kept separate from work;
- Employees shall not represent that their personal opinions are the views of the company;
- Employees shall not disclose personal health information;
- Employees not use company’s electronic systems for any illegal activity; and
- Policy should be acknowledged and signed by employee.
A policy should be uniformly applied. If a supervisor routinely allows employees to use work-issued cell phones to send personal text messages in violation of the organization’s policy, the company may not be able to defend itself in the same manner if it discharges the employee for violating the policy. There may be instances when it is appropriate to monitor an employee’s off-work social media use for disclosure of company confidential data; employee harassment, damaging posts/blogs about the company; FTC concerns; HIPAA/privacy concerns; illegal activity. An employer may use only legal means to monitor and may not use deception like false identity, getting a password from a friend or other co-workers. Additionally, an employer must always tread carefully when monitoring an employee’s social media content with respect to protected areas as identified above.
Finally, social media policies often contain a general statement that the policy is not intended to interfere with employee rights under National Labor Relations Act. This type of broadly worded provision (also known as a savings clause) has been consistently found by the NLRB to be insufficient to distinguish between what is protected and unprotected activity under the NLRA and is not construed by the NLRB to cure any ambiguities in the policy. A well-drafted policy, narrowly tailored with specific examples of how the rules are to be applied will set clear expectations to employees that there is no digital privacy in the workplace and that which is public may be monitored by the employer and private digital communications should occur outside of work and on non-work devices.