Social media applications such as blogs, social networking, and video sharing have surged in popularity over the past few years, and, in one form or another, are now used by employees in almost every workplace. According to its own statistics, Facebook, the most popular social networking site in the U.S., has more than 400 million active users, who, in total, post more than 60 million status updates each day and upload more than 3 billion photos each month.
Though some assume employees’ social media use is problematic for employers, forward-thinking companies across the globe are embracing social networking sites and blogs for, among other things, branding, research, recruiting, and to improve employee engagement and facilitate multi-office workplaces. As more and more companies turn to web-based social media applications for business purposes, employees will be increasingly likely to use these technologies in the workplace.
Employees’ social media use, however, also poses risks for employers. Some examples include employees sharing confidential company information with a virtual community of contacts through a social networking site such as Facebook, MySpace or Twitter, disparaging their employers and co-workers on a blog, or posting embarrassing videos recorded in the workplace on YouTube. Regardless of whether employees are posting at home or during working hours, employers may face legal liability when employees misuse social media.
Employees’ Misuse of Social Media
Employees may intentionally or inadvertently use social media—whether on-the-job or at home—in a way that poses risks for their employers. While at work, employers may suffer because employees spend too much time on social networking sites, instant messaging with friends, or just surfing the Internet. Though these activities may decrease productivity, they may not necessarily result in any additional harm. When employees use social media, however, to harass co-workers, criticize the club or its members, reveal confidential information, endorse products or services without proper disclosure, or engage in criminal conduct, employers face far greater risks. It is important to keep in mind that employees often create these types of problems not because they are acting maliciously, but instead because they are acting—or posting—without thinking.
Some of the legal risks employers face when employees misuse social media include:
Hostile Work Environment and Discrimination Claims. Social networking sites and blogs provide employees with additional avenues for engaging in inappropriate conduct. Employees may vent workplace frustrations by posting discriminatory statements, racial slurs or sexual innuendos directed at co-workers, management, club members or vendors. If a supervisor has posted discriminatory statements regarding an employee’s protected status on his or her Facebook page, for example, and the employee is later terminated or subjected to an adverse employment action, the supervisor’s discriminatory statements could be used as evidence that the employment action was motivated by discriminatory animus in a subsequent lawsuit or administrative claim.
Defamation Claims. Employers may face liability for defamation based on electronic communications disseminated by employees. Employee bloggers, for example, can create unrest in the workplace by posting rumors, gossip and offensive false statements about co-workers and supervisors. Negative comments made by management about a departing employee may also create liability. Consider the following example: An employee leaves Employer A to take advantage of more promising opportunities with Employer B. Prior to starting with Employer B, her supervisor at Employer A posts false and damaging comments regarding her abilities and work habits on a blog. An employee at Employer B stumbles upon these comments, and Employer B withdraws its employment offer based on the false information. As a result of the comments posted in the blog, the former employee may have a cause of action against Employer A and the supervisor for defamation or interference with prospective economic relations.
Improper Disclosure of Confidential or Other Protected Information. Employees may inadvertently reveal—or enable others to piece together— proprietary or confidential information on a blog or social networking site, instantly disseminating extremely sensitive club—or club member— information with the simple click of a button. For example, consider a golf pro playing golf with an influential business executive who updates his Facebook status to include specific details about his golf game and mentions this executive by name. This would be a direct violation of club rules requiring employees to keep information about club membership private. Employees may also act more deliberately, such as a disgruntled employee revealing a employer’s trade secrets and other proprietary information on a blog.
In addition to these legal risks, employees may purposely or inadvertently harm an employer’s reputation using social media. Employees can harm their employer’s reputation by posting controversial or inappropriate comments or pictures on their own blogs or websites, which in some way make reference to their employer or can be connected to the employer based on the individual’s status as an employee. For example, in some instances employees may post statements or videos revealing unlawful conduct outside of work. If individuals viewing the posts or videos have knowledge of the individual’s employer, or the employer is somehow referenced, the conduct may be imputed to the employer. In some instances, employees may be liable for this type of conduct.
Disciplining Employees Who Misuse Social Media
Employers should provide clear policies for employee’s social media use both at and away from work. Employees may not be aware of the potential liability to the club caused by improper social media communications and clubs should inform employees of the amount of privacy employees can expect in their work computer systems, e-mail, and Internet use. Indeed, courts have routinely considered whether an employer has an electronic communications policy in determining whether an employee had a reasonable expectation of privacy. While such a policy will not necessarily insulate an employer from all potential liability, it will reduce employees’ expectations of privacy and provide the employer with more discretion to take action against employees who engage in misconduct. See the sidebar below, which details how to develop a social media policy for employees.
There are myriad scenarios that may prompt an employer to discipline an employee for his or her social media use. The most obvious situation is an employee who engages in illegal web-based activity while at work. Another common scenario is an employee who spends the majority of his or her on-duty time using Facebook or surfing the Internet. Other situations may include employees who criticize a supervisor or club member, post distasteful photos or videos, or call in sick and then post contrary information.
Before deciding to take an adverse employment action against an employee based on his or her social media use, employers should consider whether there are legal constraints preventing or limiting such action. Some of the legal constraints employers must consider include:
The National Labor Relations Act. The NLRA affords employees (even those who are not unionized) the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticize their employers—with co-workers and outsiders. Not all concerted activities are protected by the NLRA; only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered. Thus, before disciplining an employee who, for example, has complained about the employer on his or her blog, an employer must determine if the employee has engaged in protected activity.
Could the employee be protected under a whistleblower statute? Federal and state whistleblower laws may protect employees of publicly–traded companies who complain about possible wrongdoing within an organization. For example, the Sarbanes-Oxley Act of 2002 (SOX) prohibits employers from taking action harmful against the employee for, among other things, providing truthful information. The investigation, however, must be conducted by, among others, a person with supervisory authority over the employee. An employee who reports alleged wrongdoings on a blog monitored by management to detect improper activities within the workplace could be protected, for example, under SOX. There are similar state laws prohibiting the ability of any employer (publicly traded or not) to retaliate against employees.
Was the communication related to political activities or affiliations? Many states prohibit employers from regulating employee political activities and affiliations or influencing employees’ political activities. Taking action against an employee for objectionable political speech could violate these restrictions.
Was the employee engaging in “legal off-duty activity” protected by state law or illegal activity? Some states have “lawful conduct” laws that may protect an employee or applicant’s legal off-duty activities. Thus, in some states, an employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (assuming the employee is over 21 years old). In contrast, the employer may have more leeway where the conduct is illegal (assuming the employee is under 21 in the example provided). However, even where conduct appears to be illegal, the employer may still need to take additional steps to investigate and consult with counsel before taking any action. Thus, even postings relating to seemingly “illegal conduct” may not be utilized by the employer in some circumstances. The law is far from clear in this area, and employers should consider each situation independently.
Ultimately, hiring, disciplining, and firing are all critical parts of the employment relationship, and what is appropriate social media use in one workplace may not be in another. An employer relying on web-based information to make these decisions should be aware of potential legal repercussions and consult with legal counsel to manage the risks inherent in any adverse employment decision.
Monitoring Employees’ Social Media Use: Privacy Concerns
Considering the significant potential liability and other risks employers face from employees’ social media use, how far can employers go in monitoring these communications? Although the Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures by the government, it does not apply to private sector employers. While private sector employees have no inherent constitutional right to privacy, employer conduct is limited by common-law principles and state privacy laws, including:
TORT: “Intrusion upon the plaintiff’s seclusion or solitude.” Private sector employees have common law “privacy rights” which are enforced through tort claims based on invasion of privacy theories. The most applicable theory to employer-monitoring of electronic communications is “intrusion upon the plaintiff’s seclusion or solitude.” Under this theory, employees must prove that their employer intentionally infringed upon their private affairs in such a way that it would be considered highly offensive to a reasonable person. An employer may successfully defend against such claims by establishing that the employee did not have a reasonable expectation of privacy in their electronic communications. Courts are generally more inclined to rule in the employer’s favor where the employee voluntarily uses an employer’s network and/or computer and consented to be monitored or was advised of the employer’s written electronic communications policy.
State Law. Various states protect a person’s right to privacy through statutes or state constitutions. Some states prohibit electronic monitoring of employee communications without two-party consent. Employers should check the relevant state privacy laws before monitoring employees’ social media use.
Can Employers Base Hiring Decisions on Information Obtained from Social Networking Sites or Blogs?
Employers are increasingly turning to social media for information about job applicants. So long as the employer does not violate state or federal discrimination laws, nothing currently prohibits an employment decision based on information an applicant places in the public domain. Clubs who use third-parties to conduct background checks which include social networking searches, however, may have to tell applicants of the check. The Federal Fair Credit Reporting Act (FCRA) requires employers to obtain consent before conducting background checks through consumer reporting agencies. If an employer decides not to hire an applicant based on information in a consumer report obtained from a social networking site, the employer must notify the applicant that its decision was based on that information. Some state fair credit reporting laws are more stringent than federal law. Nevertheless, employers should balance the need to obtain information against the risks associated with acting on such information if it reveals an applicant’s protected characteristics.
When using social media to vet job candidates, an employer may inadvertently become aware of an applicant’s protected characteristics, such as race, age, sexual orientation, marital status, disability, and even genetic information protected under federal law. Some states also prohibit discrimination on account of sexual orientation, political affiliation, and off-duty conduct. If the employer decides not to hire the applicant, he or she could sue the employer, alleging that the decision was discriminatory. This is the precise reason many employers have stopped requiring applicants to submit certain information with their resume or application; searching social networking sites may reveal such information and open the employer to the very risk it tried to avoid.
Other issues include learning about an applicant’s arrest history, conviction, or workers’ compensation claim. Similarly, federal law prohibits employers from discriminating against an applicant based on the employee’s current or prior filing for bankruptcy. Employers must be careful of state and federal laws that prohibit employment discrimination on account of such information.
Employers should also avoid circumventing a potential employee’s privacy settings by pretending to be someone else in order to gain access to a restricted network.
Another risk of using social media and other information obtained on the Internet to screen applicants is that the information discovered may be inaccurate or misleading. For example, a website seemingly run by, or affiliated with, a job applicant may not actually be related to, or even known by, the applicant. Additionally, false information may be posted on blogs and other social networking sites. Reputable news sources are continually coming under fire for relying upon, without fully checking, Internet-based postings. Employers should keep this in mind when turning to the Internet for information about job applicants.
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Social media use presents a multitude of opportunities—and risks—for employers. As more and more companies turn to social media for business purposes, it will become imperative for employers to provide employees with clear guidelines detailing what is and what is not acceptable use. Employers, too, will need to understand the limits of using social media for hiring, promotion, and termination decisions.
Chad Richter is a Partner in the Omaha, Neb., office of Jackson Lewis LLP. Richter has extensive experience representing management in the areas of labor relations, human resource counseling, training and employment discrimination. In the event of litigation, Richter has experience advocating for employers before state and federal courts nationwide. He also defends employers before the EEOC and the Department of Labor regarding issues arising under FMLA, Title VII, ADA, FLSA, the Worker Adjustment Retraining Notification Act and corollary state law.
Kristi M. Rich is an Associate in the Hartford, Conn., office of Jackson Lewis LLP. Her practice is focused on employment litigation and preventative counseling.
Strategies for Regulating Electronic Communications: How to Create a Social Media Use Policy
Whether employees are communicating with friends outside the company or with co-workers and business partners regarding work-related projects, employers should have clear policies regarding the use of social media both in and outside the workplace. Employees—who may not realize they can expose employers to risk by posting information on blogs and private social networking sites during work or non-work hours—should be informed of potential risks and aware of the employer’s expectations.
The precise contours of an employer’s social media use policy will depend on the organization, its culture and approach to social technologies, and the nature of work performed. For instance, a social media use policy for educators may be very different from a policy aimed at employees who are encouraged to use social media for developing club member relations. However, there are some basic issues clubs should address when implementing a social media policy.
Employees should be warned that postings regarding: (1) proprietary and confidential club information; (2) discriminatory statements or sexual innuendos regarding co-workers, management, club members, or vendors; and (3) defamatory statements regarding the club, its employees, club members, competitors or vendors will not be tolerated and will subject the individual to discipline. Social media use policies should also make clear that if the employee mentions the club with which he or she is affiliated, he or she must also include a disclaimer stating that any opinions expressed are the employee’s own and do not represent the club’s positions, strategies or opinions. The policy should specify that these prohibitions apply to postings and blogging occurring at any time, on any computer.
Clubs should also consider amending their handbook policies to provide a detailed explanation of what is considered “acceptable use” (i.e., business use only, limited personal use or unlimited personal use). Clubs can also implement a policy that reduces the level of privacy employees expect in their work computer systems, e-mail, and Internet use. Creating such a policy will reduce the risk of liability for an employer as well inform employees about expectations of privacy and provide the employer with more discretion to take action against employees who engage in misconduct.
Other provisions clubs may chose to incorporate into a social media policy include the following:
- Employees are expected to comport themselves professionally both on and off duty;
- Managers are prohibited from using any informal review systems on social networking sites (i.e., LinkedIn);
- Club policies governing the use of corporate logos and other branding and identity apply to electronic communications, and only individuals officially designated may “speak” (whether orally or in writing) on the company’s behalf;
- Employees must comply with all other club policies with respect to their electronic communications (such as rules against conduct that may result in unlawful sexual harassment, etc.);
- The club’s systems may not be used for any illegal activity, including downloading or distributing pirated software or data;
- The company reserves the right to take disciplinary action against an employee if the employee’s electronic communications violate club policy;
- A statement that the policy is not intended to interfere with rights under the NLRA;
- A reporting procedure for violations of the policy;
- Designate a management representative within the organization as the point of contact for policy violations or questions concerning the policy to ensure consistent application; and
- Notice that monitoring will occur in order to reduce an employee’s expectation of privacy.
A social media policy should be written with the assistance of counsel for distribution to all employees in employee handbooks, policy manuals (as a stand-alone policy), paycheck reminders, and annual or more frequent e-mail reminders. Employers may also consider requiring employee acknowledgments for receipt of all of the above. All policies must be accompanied by actual monitoring and uniform enforcement.