Ten years ago, employers struggled to adapt their policies to the Internet and email. Today, the new frontier is social media. With new technology and communication avenues come new obligations to police and regulate those same avenues in the workplace.
Although each workplace is different and there is no one-size-fits-all approach to social media, it is critical for employers to recognize the risks and, at a minimum, provide some reasonable guideposts for employee conduct.
No employer wants to be the “Facebook police,” but employees are increasingly making complaints to human resources departments and management over offensive or harassing statements made online. With the rise of cyber-bullying and “textual harassment,” employees must be made to understand that company policies extend into cyberspace and social media forums, and these policies must be followed.
If an employee makes a complaint about online activity, it should be investigated just like any other complaint of harassment or discrimination. That said, an investigation can often be hampered by the lack of access to social media sites.
Suggestions to work around this problem include requesting that witnesses provide screen shots or copies of offending text messages. The employer can also request that an accused employee provide access to his or her Facebook page for the limited purpose of verifying whether the allegations are true. If such access is refused, consider taking statements from employees who may have seen the relevant statements made on a social media site.
It has become clear that real liability issues are associated with managers “friending” subordinates. It’s unlawful for a manager to inquire in the workplace about certain personal information that’s displayed on social media sites. For example, a manager who discovers on Facebook that an employee has a serious illness may later be accused of unlawful discrimination.
In addition, a supervisor who friends subordinates in a discriminatory fashion (e.g., only members of the same race or ethnic group) is running the risk of being perceived as unfair or, even worse, a racist. Since friending some supervised employees but not others is a risky proposition that could lead to hurt feelings or lawsuits, many companies have advised supervisors to refrain from friending workers who are in a direct line of supervision.
It should go without saying that management must never hack into or gain access to employees’ social media sites in violation of security protections or permissions. If a site is viewable by the public, however, an employee has no right to privacy, and no permission is required.
Gray areas arise where a worker who has access to another worker’s site brings information to management without the other employee’s permission. Most courts agree that employees allow access to their Facebook page at their own peril. If someone shares that information with an employer, that is a risk assumed by the employee who granted the access. Simply put, an employer need not ignore evidence of misconduct because it comes through an indirect source.
Similarly, texts, tweets and electronic communications can become the subject of a workplace investigation if a complaint is made. One thing to keep in mind is that an employer can lawfully search employee-owned cell phones only if the employer provides notice in its policies that employees have no expectation of privacy for information stored on these devices. As long as such notice is provided, an employer has the right to search a cell phone, just as it would to search a vehicle or purse if a violation of policy is suspected.
There are a number of emerging legal issues that have created headaches for employers. First, some postings on social media sites have been deemed by the National Labor Relations Board to be protected activity.
Firing an employee over an online social media complaint about wages, a “jerk” boss or employment conditions, for example, can lead to a lawsuit. Some states also have laws protecting employees from discipline for lawful off-duty conduct. Thus far, it is unclear whether these laws will apply to social media activity.
Also, employers should exercise caution in setting up their own social media pages and allowing nonexempt employees to monitor and update those pages. Blogging, tweeting or posting company-related information online is considered work, and hourly employees must be compensated for this time, including any applicable overtime.
In summary, having a social media policy is no longer relevant only for high-tech companies and large corporations. Employers of all sizes and industries are facing substantial legal risks, and they should review this emerging area to identify what guidelines need to be implemented to avoid lawsuits.
David L. Barron is a labor and employment attorney at Cozen
O’Connor’s Houston office.
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