Welcome to Employment Law in the Age of Social Media
Remember the maxim "You are what you publish." Once things are posted in the digital world, they potentially exist forever. What you post online can become discoverable in a lawsuit. It can get you fired, or it can keep you from getting your dream job. If you wouldn't be comfortable with your grandmother seeing it, maybe you shouldn't post it at all.
You are in charge of human resources at your company. This week, you find out that:
An applicant for a delivery driver position has pictures on his Facebook page of himself passed out drunk in a gutter on Bourbon Street.
Studies show that most recruiters check candidates’ online profiles in deciding whether to proceed further with the interview process. There are currently no federal laws expressly prohibiting an
employer from “Googling” the name of a job applicant, though employers should be aware that some states have laws that could impact an employer’s ability to make job decisions based on an employee’s lawful, off-duty conduct, such as smoking or affiliating with a political party.
Your marketing director posts on Twitter that her boss has been acting like he wants to be “more than just friends.”
In this scenario, a human resources manager could potentially become upset that an employee is airing dirty laundry about her employer and might be tempted to take disciplinary action. However, a court could view the employee’s post as a form of protected expression regarding perceived workplace harassment, and any discipline against the employee could possibly be viewed as unlawful retaliation.
In this type of circumstance, the employer might be better served reminding the employee of the “proper” channels for reporting harassment within the company and then conducting a separate investigation into the underlying actions of the employee’s boss.
One of your salesmen has been “sexting” on his company-issued cell phone.
In June 2010, in the case of City of Ontario v. Quon, the U.S. Supreme Court assessed whether a California police department violated its employee’s right of privacy by reading private, sexually explicit text messages sent by the employee on a department-issued pager. After the employer conducted an audit of the employee’s text usage and discovered his extensive personal and inappropriate usage of the employer-owned pager, the employee filed a lawsuit claiming that his right of privacy had been invaded. The Supreme Court ruled that the employer’s search of the text messages was justified by a legitimate, work-related purpose because the employer had the right to monitor excess usage to control costs.
Many employers hoped the Supreme Court’s decision in Quon would provide a detailed discussion of employers’ rights to monitor electronic communications, but the Court declined to provide a detailed discussion, stating, “A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.”
The Court declined to define broad standards because “[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. … At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”
Despite the limited scope of its ruling, the Supreme Court’s decision in Quon is instructive in several ways. The Court observed that an employer’s written electronic communications policies matter and will be considered. As the Court observed, “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.” This observation is also instructive in the social media context, and employers are wise to ensure that: (1) they have written policies that specifically address expectations regarding employee electronic communications; and (2) such policies are clearly communicated to employees.
Human resources departments are increasingly using social media as a research tool to gather information for important staffing decisions, such as hiring new talent and terminating employment. When assessing potential job candidates, employers often look online to see if there is anything that may shed further insight on candidates.
Sometimes it becomes prudent for an employer to look at an employee’s postings on public social media sites after the employer learns of inappropriate content posted online. On occasion, social postings can result in employees, quite deservedly, losing their jobs. For example:
- A Massachusetts school teacher was forced to resign after describing students as “germ bags” and their parents as “snobby” and “arrogant” on her Facebook page.
- At Virgin Atlantic Airlines, 13 employees were fired after crew members ridiculed passengers online.
- A stadium worker for the Philadelphia Eagles was fired after making an obscenity-filled post expressing his displeasure with his employer’s failure to re-sign a star player.
THINGS AN EMPLOYER FINDS ONLINE COULD ALSO CAUSE “ISSUES”
If an employer conducts an online search to find out more about a job applicant or an employee, what happens if that search leads to the discovery of information the searcher did not otherwise know, would not otherwise want to know, or just plain shouldn’t know? If an adverse employment decision is based on protected class information learned through social media, it may violate laws prohibiting discrimination. For example, if an employer learns about a candidate’s religion, sexual orientation or medical condition through social media and then, based on that information, decides to terminate or
not hire the individual, the employer may have violated anti-discrimination laws. Governmental employers also face increased scrutiny of their monitoring of employees’ online communications since public employees, unlike at-will employees who work in private industry, may have certain First Amendment protections in the content of their online communications.
Additionally, the National Labor Relations Board recently filed a complaint against a Connecticut employer that fired an employee after she posted comments critical of her supervisor on her personal Facebook page. The complaint alleges that the employer’s policies and practices unfairly interfered with the employee’s federally protected rights to discuss working conditions — the rules of which apply to unionized and non-unionized employers.
CREATING AND IMPLEMENTING A SOCIAL MEDIA POLICY
Most employers have an Internet-usage policy in their employee handbook. Typically, such policies dictate what employees may view on the Internet while using a company computer. However, there is a distinction between employees passively viewing materials from the Internet as opposed to posting materials to the Internet. Most companies’ Internet usage policies do not typically address the implications of things that employees may post on social networking sites.
Once an employer designs and implements a social media policy, it is imperative that such policy be clearly communicated to all affected employees and that proper training be conducted. Managers, supervisors and employees must be educated on the implications and discoverability of online postings so that their use of social media does not undermine legal positions in a pending
or future lawsuit against the company.
At the same time, managers and employees must be educated about the implications of discussing work-related issues online and realize that certain postings may come back to haunt the employees and the company for which they work.
IMPORTANT COMPONENTS TO INCLUDE IN A CORPORATE SOCIAL MEDIA POLICY
- Inform employees they have no reasonable expectation of privacy in any technology provided by the company.
- Warn employees that the company will not tolerate postings that: 1. Reference proprietary and confidential information; or 2. Include any discriminatory statements or sexual innuendo regarding co-workers.
- Explain to employees that they are expected to comport themselves professionally both on and off duty and refrain from online activity that could negatively impact the company’s reputation or standing.
- Management has a right to view materials posted by or about employees on social media sites.
For further guidance on implementing a social media policy, please consult with your employment law counsel.