Employment & Labor Law

It is no secret that social media and the workplace are colliding, and this storm will likely get rougher before the skies clear. An argument can be made that social media is just another form of communication, and that the same laws that have guided employers in the past in dealing with employee discussions at the water cooler will apply to blogs and tweets and posts. However, social media has opened new doors. It has never been so easy to disseminate information to a large group of people so quickly. The key is in understanding how to apply the time-honored principles and some relatively new laws to the new issues created by social media, and how to proactively prepare for the issues that may result. Good written employment policies can avoid most of the likely problems in this area. Employers will need to carefully think through decisions regarding how much information they want to protect, how many restrictions they want to place on their employees, and a host of other issues before they draft policies to address social media.

Protecting your reputation

A well-drafted Social Media Policy can inform your employees of the dangers of placing such information on the web via any social media platform, and that you, as the employer, have a right to police information related to you and your interests on the web. This kind of policy puts your employees on notice that you take your reputation and the protection of information seriously, and that they will be subject to discipline should they post such communication.

There are some laws placing a few limits on how far an employer can go in reviewing employee posts.   For instance, in a New Jersey case, a supervisor in a restaurant asked an employee for her Myspace password so that the supervisor could observe a private chat between other employees, assuming they would be talking about the workplace. The United States District Court for the District of New Jersey, on the basis of the Stored Communication Act, held that this was an unlawful intrusion into a private, by invitation only, communication. The court noted that the employee feared an adverse employment action if she did not provide her password to the supervisor. As a result, the court found unlawful invasion into the privacy of the employees, and awarded damages, including punitive damages.[1]

Protecting the workplace

Employers also have a right and duty to protect the workplace. Social media can become a new way of committing old sins. An employee’s posts can create a hostile or harassing work environment for their coworkers, the same as posting suggestive pictures or using inappropriate language in the workplace. Thus, you have a duty to protect the workplace by policing reported posts that create such an environment.

How comprehensive a policy you put in place in the workplace will determine the extent to which you can review employee communications. A recent New Jersey Supreme Court decision indicated that an employer’s policy was not broad enough to protect it as the policy allowed employees to have a reasonable expectation that confidential information shared through a public email service, such as Yahoo or Gmail, that is password protected, would be protected from access by the employer, despite the fact that company equipment was used to send the email.[2] It is vitally important that policies be drafted with an understanding of current case law which is creating precedent on a daily basis.

A recent U.S. Supreme Court decision upheld an employer’s right to access the content of text messages sent over an employer-issued paging device.[3] However, one reason the case made it to the Supreme Court was because a supervisor made a claim to an employee that ran counter to the stated policy. The supervisor told employees their text messages on employer equipment would not be reviewed by the employer. The court upheld the employer’s review nonetheless because of the good published policy alerting employees otherwise. This also shows the value of frequent and periodic supervisor training to educate your staff regarding how to handle employee encounters, especially concerning social media. We have years of training and presentation experience, and offer in house supervisor training to companies who want to make sure that their staff is well prepared for the job of supervising, as well as in assisting with policy drafting. Feel free to contact us if you are interested in these services.

Use of social media in employment decisions

Social media can also be a tool for the employer. A recent survey indicates that more than 45% of hiring employers search social networking sites to screen job applicants. While 18% said that they found things that led them to hire a particular candidate, 35% indicated that they found information which caused them to not hire a particular candidate.[4]

But you have to be careful. The information you find there may alert you to things you would rather not have known. Once you know something (such as the fact that the candidate is pregnant or disabled) you cannot unknow it. If it becomes a part of your hiring decision (or can be demonstrated that it might have been a part of your hiring decision) then you may have an issue. Be careful to make sure you use legitimate and legal criteria for your hiring decisions.

For more information, or if you have questions, please contact Craig M. Brooks.

[1] Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s, No. 2:06-cv-05754-FSH-PS (slip op., D.N.J. September 25, 2009). [2] Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J., 2010). [3] City of Ontario v. Quon, No. 08-1332, 560 U.S. ____ (2010). [4] http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?id=pr519&sd=8/19/2009&ed=12/31/2009&cbRecursionCnt=3&cbsid=26ce2808344d4d66a4bc7825c673a65f-307112466-R4-4