Social media platforms such as Facebook, Twitter, and LinkedIn have permeated our lives both at work and home. That distinction between work and home has become blurred as employees often inject their personal and work content on social media websites without realizing that they may be hurting their employer’s brand, or worse, divulging valuable proprietary information. As a consequence, employers face the difficult challenge of protecting themselves from their employee’s inappropriate use of social media, including postings that may disrupt workplace harmony and cause an unsafe or hostile work environment (i.e. sexual harassment), or damage the company’s reputation.
In adopting rules to minimize inappropriate behavior, employers need to respect their employee’s privacy rights and comply with both state and federal laws.
Legal Issues with Monitoring of Employee’s Use of Social Media.
An employee’s rights to privacy are mostly based on either the Fourth Amendment or state privacy laws. Some states, such as California, have enacted social media or internet privacy laws that prohibit an employer from requesting or requiring an employee or applicant to disclose his or her user name, password or other means of accessing his or her personal social media accounts such as accepting an employer’s “friend” request. Many of these states also make it unlawful to discipline, discharge, discriminate against or penalize an employee, or refuse to hire an applicant who refuses to disclose his or her access information to personal social media accounts.
But despite these privacy concerns, employers may still review social media accounts that are publicly accessible (i.e. do not require any password or authorization to review) since there are no reasonable expectations of privacy to those “public” postings.
Recommendations by the National Labor Relations Board.
The NLRB supports the rights of employees, even non-unionized ones, to engage in “concerted activity,” including the right to discuss and criticize, the conditions of their employment with coworkers and outsiders. The NLRB also stated that an employee’s use of social media is also protected by whistleblower statutes and by the right to engage in political speech. The NLRB has made the following recommendations for employers to not:
- Broadly require employees to obtain permission from the employer before posting content to social media. These permission provisions must only restrict speaking on behalf of the company.
- Instruct employees to “think carefully about ‘friending’ co-workers.”
- Require employees to use a “friendly tone” online- instead, employers should tell employees to use “appropriate business decorum” in online communications for business purposes.
- Instruct employees to try to resolve workplace problems by speaking in person (rather than online) with co-workers, supervisors, or managers.
- Broadly restrict “disparaging or defamatory” comments.
The NLRB has stated that employers may adopt following policies:
- Prohibit employees from posting unauthorized statements in the name of the employer, as the policy or view of the employer, or in a manner that could reasonably be attributed to the employer.
- Prohibit disclosure of attorney-client privileged information, trade secrets, or information that would violate financial disclosure laws.
- Prohibit violence, harassment, and discrimination, etc.
Guidelines In Adopting a Social Media Policy.
In adopting a social media policy that complies with state and federal laws, employers should consider the following:
- Have the policy apply to all employees (i.e. do not have it apply to only certain employees as that may be discriminatory) during work and personal time, and regardless of who owns the equipment.
- Do not let employees use their company e-mail to register on social media sites as the public may infer that those postings are made on behalf of the company.
- Avoid broad or ambiguous policy statements by specifically referring to policies that may involve social media (i.e. policies on workplace violence, harassment, confidentiality agreements in employment agreements).
- Warn employees that misuse of social media can result in discipline, including termination.
- Employers should only access and monitor an employee’s publicly viewable social media usage. Employers should not ask employees to disclose usernames/passwords or require them to accept a “friend” request. Obviously, employers should also not use any “discovered” passwords to hack into an employee’s social media account.
- If the employee discusses the company in social media, require the employee to make a disclaimer that they are speaking for himself and not for the company (i.e. “The postings on this site are my own and do not necessarily represent the position, strategy or opinions of the company.”)
- Companies can also take a more collaborative approach by encouraging its employees to help monitor the brand. A company can adopt the following sample policy: “You are one of our most important assets to monitor our social media presence. If you come across negative or disparaging posts or remarks about the Company or its brands online that you believe are important, please share them by forwarding them to ______@_________.com.”
- Since laws in this area continue to change, employers should include a disclaimer such as: “Nothing in this policy is intended to restrict employee’s rights under any applicable federal state, or local law, or from communicating in good faith about wages, hours, or other terms and conditions of their or their co-workers’ employment.”