Can Employers Control an Employee’s Social Media Content?
Navigating legislation, employee privacy, and a company’s liability risk
Social media has brought a whole new set of considerations for how employers monitor their employees. Pew Research shows that 69% of the public now uses some type of social media. For example, if an employee posts a complaint or company secret on their public accounts, when can the company step in?
Even though there’s no federal law against an employer monitoring an employee’s social media pages, employees may become concerned if they feel their company is always watching them. Organizations may want to keep in mind their employees’ right to privacy in this regard and ensure there exists a written policy advising employees of their expectation of privacy in the workplace (or lack thereof), possibly including social media pages.
Finding a delicate balance between monitoring and implementing best practice strategies for company protection is important in our current digital age. Let’s take a look at policies that aim to address this issue and how companies could approach the subject with employees.
NLRB guidelines for social media and the workplace
A concern for any company today is that an employee will share confidential or defamatory information on their social media pages. While sometimes employees’ posts can spread positive brand awareness, other times they can have far more negative consequences, for both the employee and the organization.
If, for instance, an employee posts confidential information about a company’s competitor during his or her course of employment, that may trigger certain legal exposure. The worker may suffer consequences as well, in the form of disciplinary action, up to and including termination.
The National Labor Relations Act establishes certain protection for employees regarding work-related discussions on social media. The National Labor Relations Board (NLRB) has enforced this policy so that workers are not completely “chilled” in their expression of certain content relating to their work conditions. In certain cases, however, the Board has upheld an employer’s termination of an employee fired for posting items and engaging in other commentaries on social media that the Board did not agree was “protected concerted activities.” For example, the protected concerted activity would include expressions on social media related to open discussions concerning benefits or wages.
If, however, an employee violates the rights of others or is engaging in discussion about the employer or a competitor that is not related to employment conditions, the activities possibly could be considered unprotected. Other examples of unprotected expression generally include unlawful harassment or threats against other coworkers.
A contributor to the Florida Chamber of Commerce website suggests that in these situations, employees might be unnecessarily subjecting themselves to disciplinary action. Of course, as this same source admits, some states have different regulations in place restricting the ability of an employer to regulate or restrict “off-duty” conduct. Florida is an at-will employment state, which means the bar is set fairly high for an employee to prove a termination is “wrongful.”
When can an employer step in?
Because there are few, if any, federal laws restricting employers from monitoring social media accounts, some companies institute monitoring software on company devices. While it would take a great deal of time to monitor each and every action by each employee in a large company, having such a system in place may itself deter employees from posting anything defamatory or otherwise improper.
From a best practices standpoint, it is always recommended to have written, clear policies and procedures in place regarding social media. Reasonable restrictions regarding disclosure of confidential proprietary information and the like also are highly advocated.
Managers and human resources professionals should also be upfront about what will be monitored. If companies can see all of an employees’ personal information on any site they visit on a company computer or network, they should let them know. Transparency is important in this realm. Employees probably do not want to risk their jobs, so being clear with them about what is acceptable will mitigate that from happening and will protect the brand as well.
Navigating workplace issues in the current digital age is never easy. To better understand your rights, whether as an employee or organization leader, getting in touch with an attorney can be a good idea.
The labor and employment attorneys at Padula Bennardo Levine, LLP would be happy to discuss these issues with you and help your business craft smart HR policies. Contact our experienced team today for more information.