Social media has evolved into an ever-growing part of life for many employers and employees. Companies and individuals can benefit both professionally and personally from their use of social media. Advertising and networking with previously unavailable contacts can now be done in real time with little to no cost. However, along with these benefits comes substantial risk. Social media's instant and public display means that users can easily (perhaps too easily) voice their opinions, and those opinions are forever memorialized in cyberspace. Just as things can be said in the heat of the moment, they can also be posted, tweeted, texted or updated in the heat of the moment. The difference is that when spoken, your audience is limited and your words are not often memorialized. On the other hand, when using social media, your audience can be unlimited (see, e.g., reposting and re-tweeting) and everything that you share, whether it is edited or later deleted, can be captured, saved and later reproduced.
The public display and permanency of social media posts can become particularly troublesome when an employee chooses to discuss matters relating to their employment. Even if they post as an individual in their own capacity and on their own time, employee posts can lead to trouble for an employer. These issues can arise in a variety of situations. The most frequently occurring: the employee makes disparaging comments about the employer or their practices, reveals private business matters or confidential information about clients, harasses fellow employees, or makes inappropriate contact with clients or competitors. What complicates matters for employers is that despite all of the potential risks associated with employee social media usage, they cannot place an outright ban on employee usage in connection with employment.
Protected Speech and Freedom of Expression
The National Labor Relations Board (NLRB) determined that even if comments are potentially harmful to a company, if they relate to certain protected activities, such as organization or voicing concerns over wages or conditions, the employer cannot hold the activity against an employee. Overly broad social media policies, particularly those that appear to curtail or discipline most, if not all, of any employees' private use of social media, have been found to violate labor laws. However, even those jurisdictions restricting a company's social media policy generally agree that policies can restrict employees from posting that which disparages the company or violates harassment or similar existing company policies.
Employer Provided Email Usage May Be Protected Too
A recent decision by the NLRB may mean that employer-provided email might also be protected for use in connection with concerted activities. In Purple Communications, Inc. (21-CA-095151 and 21-RC-091531 and 21-RC-091584; 361 NLRB No. 126), the Board determined that unless an employer could show special circumstances, there was a presumption that an employer must permit employees to use its company email system, to which employees otherwise have access, for the purpose of conducting protected communication activities during breaks and after work time. The Board remanded the case to allow the employer to show why the restriction on the activity was necessary to "maintain production and discipline", the criteria necessary to rebut the presumption.
Social Media and Discrimination
Social media sites have helped many employees not only network, but find jobs. The multi-depth and interactive properties of social media also provide employers with insight into potential candidates like never before. This wealth of information allows employers to better discern potential workers' skills, experiences and even personalities before ever conducting an interview. The collection of information can be quicker, less expensive and more accurate than traditional paper applications. However, some are questioning whether this peek behind the curtain is being used in a discriminatory fashion. After all, in addition to a person's professional experiences and educational background, employers become privy to information about a candidate's race, gender, age, nationality, religion, marital status, sexual orientation, disabilities and other federal, state and locally protected class information.
In March 2014, the Equal Employment Opportunity Commission (EEOC) held a meeting with a panel of experts to better understand how social media impacts anti-discrimination laws and the corresponding enforcement of these laws. The EEOC has not yet released an official opinion or significant guidelines regarding the matter, but employers can still be proactive in protecting themselves. Employers should institute carefully constructed policies for what type of information they research and consider when looking at applicants and employees online. If possible, one person should be in charge of reviewing the online content and writing a summary of the information found. This summary should not contains any information pertinent to a identifying a candidate or employee as part of a protected class. This information should then be passed to the next person in the decision making process. The online reviewer's role should end here to minimize any claims that information discovered during the social media review was used to discriminate against an applicant or employee. If it is not possible to have separate persons complete the review and hiring processes, then the single person in charge must be diligent in keeping the scope of their review to professional qualifications and keeping a record of what considerations were used to make the decision, whether it was positive or negative. The key to avoiding discrimination is a narrow scope, neutrality and record keeping.
Passwords and Privacy Settings
Only a few states (not yet Pennsylvania) have made it unlawful for an employer to request an employee or potential hire's personal login information. However, even though it may be legal to request the information in a majority of jurisdictions, the courts are unclear on whether or not an employee must hand over the requested information and how a refusal to do so can impact their employment.
In contrast, several jurisdictions have determined that despite the use of certain privacy settings, the act of posting information is a public act, which waives an employee's right to claim that their social media activities are private. This means that employers can prohibit certain activities and discipline or terminate employees who violate these policies when posting information.
Carefully Crafted Policies Provide Protection
Employers should carefully craft their social media and electronic communication policies and make sure that they are specific, and not overly restrictive of employees' private lives. The must be tailored so as to not violate labor laws, particularly an employee's right to organize and communicate with one another. At the same time, employers should have a social media policy to protect their reputation and insulate themselves from potential liability for employee's private social media activities. Employers may want to obtain legal counsel before implementing any new policies or to review existing policies.
Contact Kisner Law Firm
Employers must carefully consider policies, posting and privacy settings. Sometimes these complex situations require legal assistance. The Kisner Law Firm advises on all areas of employment law, including social media policies. We serve as general counsel to many companies, helping them plan as they grow and expand. We are available to provide advice whenever workplace issues arise, whether large or small, so employers can craft a careful response. We at Kisner Law Firm understand that employment issues require careful attention, and you will quickly learn why our brand of personal, responsive service is so appreciated by our clients. Contact us today for any and all of your employment law needs.