Social media applications such as blogs, social networking, and video sharing have soared in popularity and are now present in almost every workplace. According to Facebook's own statistics, there are currently over 845 million active users; more than 425 million monthly active users utilize Facebook mobile products. On You Tube, 48 hours of video are uploaded every minute; more video is uploaded to YouTube in one month than the three major US television networks created in 60 years. Twitter currently reports 250,000,000 Tweets per day and 100,000,000+ active users. Employees' social media use—whether for business or personal purposes—raises a number of questions regarding employees' and employers' respective rights and responsibilities. This QuickCounsel provides an overview of those issues and how in-house counsel should respond to the risks that they pose.
Some of the legal risks associated with employees' use of social media include:
- Hostile Work Environment and Discrimination Claims. Social media expands an employer's potential liability outside its physical location and work hours. For example, a supervisor who "friends" a coworker on Facebook could lead to inappropriate remarks or actions between the two outside of the workplace and work hours, regardless of whether the coworker accepts the request. These remarks and actions could form the basis of a harassment claim by the coworker.
- Discrimination Claims.Employers may face liability when its employees use social media to gather more information about job applicants and employees than they otherwise would have been able to learn through a traditional, offline application or internal investigation process (i.e., protected characteristics or involvement in protected activities). An employer that accesses social media to gather information about its applicants or employees may inadvertently expose itself to failure-to-hire or wrongful termination claims, depending on how the information is used by the employer.
- Defamation Claims.Employers may face liability for defamation when employees use social media to disseminate rumors, gossip, and offensive false statements about co-workers and supervisors.
- Improper Disclosure of Confidential or Other Protected Information. Employees may reveal, either inadvertently or intentionally, proprietary or confidential information on a blog or social networking site.
- Reporting Requirements for Child Pornography. Some states, including Arkansas, Illinois, Michigan, Missouri, North Carolina, Oklahoma, South Carolina, and South Dakota, have mandatory reporting statutes that require information technology workers to report child pornography found on computers they are servicing.
- Federal Trade Commission (FTC) Guides. Under FTC Guidelines, companies may face liability when employees use social media to comment on their employer's services or products without disclosing the employment relationship; such liability may result even if the comments were not sponsored or authorized by the employer.
- Employees' Section 7 Rights under the NLRA.The National Labor Relations Act (NLRA) confers rights to employees under Section 7 of the Act. This Section gives employees the right to form, join or assist labor organizations, refrain from such activities, and participate in activity engaged in for "other mutual aid or protection." Employees' communication through social media may involve Section 7 activity, protected under the NLRA.
Beyond legal risks, employees can harm a company's reputation by disseminating controversial or inappropriate comments regarding the employer.
Private sector employees have no inherent constitutional right to privacy; however, employer conduct is limited by common-law principles and federal and state privacy laws, including:
- TORT: "Intrusion upon the plaintiff's seclusion or solitude." Generally, an employee must allege: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person. An employer may defend itself by establishing that the employee did not have a reasonable expectation of privacy.
- Federal Wiretap Act and the Electronic Communications Privacy Act (ECPA) of 1986, amending the Federal Wiretap Act of 1968. ECPA prohibits the intentional interception of an electronic communication subject to specific exceptions, including an "ordinary course of business" exception. The Stored Communications Act ("SCA") covers stored electronic communications.
- 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.
Some of the legal issues employers must consider when dealing with employees who misuse electronic communications include:
- Does the employer's access violate the employee's right to privacy?
- Can employer restriction on the use of social media violate the National Labor Relations Act? (See below.)
- Is the employee's conduct protected under a whistleblower statute?
- Was the communication related to a "legal off-duty activity" protected by state law?
- Was the communication related to political activities or affiliations?
- Does the employee have a potential discrimination claim?
While not every employee social media communication is protected under the NLRA, employers should analyze the content of employee's on-line communication carefully prior to initiating adverse employment action to ensure it is not both concerted and protected under the Act.
What is Concerted Activity?
- Two or more employees, or one employee acting on behalf of others;
- The topic must have some relevance to the interests of fellow employees; and
- The employee must seek to initiate, induce, or prepare for group action.
What is Protected Activity?
Concerted activities are protected when engaged in "for mutual aid or protection." The following are examples of protected activity:
- The activity may be related or unrelated to unions;
- Refusal to work in the face of dangerous working conditions;
- Discussing unsafe working conditions with other employees;
- Circulating a petition to collect wages due employees;
- Employees banding together to request wage increases;
- Employee discussions regarding salary, benefits or job conditions;
- Communications that are critical of specific managers or company policies; and
- Improving working conditions through assistance of administrative agencies, courts or legislators
In order to avoid interfering with employees' Section 7 rights, employers should ask the following questions to determine whether employees' social media communication rises to the level of protected concerted activity:
- Is there concerted activity through the electronic communication? Were two or more employees acting together; or was one employee acting on the authority of other employees?
- Is the activity protected? In other words, were the employees' social media communications for the mutual aid or protection?
- Is the planned adverse action motivated by the employees' protected concerted activity? Did the employer know of the activity? Was the employer motivated to act by it?
While the specific components of an employer's social media use policy will depend on the organization, some basic issues employers should address when implementing a social media policy include prohibiting:
- Dissemination of proprietary and confidential company information is prohibited;
- Discriminatory statements or sexual innuendos regarding co-workers, management, customers, or vendors are prohibited;
- Defamatory statements regarding the company, its employees, customers, competitors, or vendors are prohibited;
- Communication regarding the employer without a disclaimer stating that any opinions expressed are the employee's own and do not represent the company's positions, strategies, or opinions.
Employers 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).
Although the caselaw is still developing, courts have taken at least three approaches to defining the scope of discovery for social media content:
- Total Access – Some courts have required litigants to turn over total access to their accounts, including user names and passwords. These courts held that any communications made on a social networking site were not confidential and the litigants had no right to protection from disclosure.
- In Camera Review – Other courts have taken a somewhat less intrusive approach by allowing the judge to determine what information is relevant and should be produced.
- Narrowly Tailored Production – Some courts have required production of social media content only to the extent it is relevant to the case and requested within narrowly tailored discovery requests. For example, a federal district court permitted discovery on plaintiff's social network content despite the objections that the requests were overbroad and an invasion of privacy. The court held that Plaintiffs placed their mental health status at issue by alleging ongoing emotional harm related to sexual harassment. The court compelled discovery on any social network "profiles, postings, or messages" that relate to any emotion, feeling, or mental state.
As social media use now extends to virtually every workplace, and is often encouraged to some extent for business development and other purposes, employers must stay abreast of legal rules regarding, among other things, liability for employees' misuse of social media, employees' privacy and other legal rights, and social media use in e-discovery.
|The information in this QuickCounsel should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or the ACC. This QuickCounsel is not intended as a definitive statement on the subject addressed. Rather, it is intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
Published March 10, 2010 (Updated on March 23, 2012)