QuickCounsel
Workplace Challenges Associated with Employees’ Social Media Use
Overview
Social media applications such as blogs, social networking, and video sharing have soared in popularity and are now present in almost every workplace. Employees’ social media use—whether for business or personal purposes—raises a number of questions regarding employees’ and employers’ respective rights and responsibilities.
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Legal Risks Associated with Employees’ Social Media Use
Some of the legal risks associated with employees’ use of social media include:
- Hostile Work Environment and Discrimination Claims. Employers may face liability when employees use social media to make discriminatory statements, racial slurs, or sexual innuendos directed at co-workers.
- 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 newly revised 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.
Beyond legal risks, employees can harm a company’s reputation by disseminating controversial or inappropriate comments regarding the employer.
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Monitoring Employees’ Social Media Use: Privacy Concerns
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.
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Dealing With Employees Who Misuse Electronic Communications
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, which affords employees the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment, for the purpose of collective bargaining or other mutual aid or protection?
- 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?
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Employer Regulation of Electronic Communications
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).
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Additional Resources
Government Forms and Information
Sponsor Resources
ACC Resources
For further information, contact the QuickCounsel authors JoAnna L. Brooks, Partner, San Francisco, CA Office and Chad P. Richter, Partner, Omaha, NE Office.
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| 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. |
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Published March 10, 2010
