Social Justice

Set clear, written policies to stay on the right side of privacy laws in the workplace.

For better or for worse, social media like Twitter and Facebook have in many respects replaced the venerable office watercooler as the place where employees go to gossip and offer workplace commentary. But unlike employee discussions held in hushed tones around the water tank, social media comments are very public – and can quickly become a public relations and/or human resources headache for your organization.

“Social media has made it so much easier to comment about the workplace in a public way that everyone can see,” notes Rodney Harrison, an attorney for the St. Louis office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Harrison is an expert on labor and employment law and often educates employers about the limits of using social media to discipline, fire or not hire people.

“Employees seem more prone to discuss workplace issues in an open forum and they have the tools to do it,” he continues. “In addition – and I don’t know why, because I’m not a psychologist – people using social media tend to say things that 10 years ago they would’ve kept to themselves. They say whatever’s on their minds – there’s usually no filter.”

All this very well might make for a fascinating psychological study, indeed. But in a larger context, it raises an interesting question for employers: What happens when employers’ intent on protecting their organizations butts heads with employees’ right to privacy in things they do and say while off the clock? And can employers even use things they find on Facebook, for example, to discipline, fire or not hire employees? These two issues – access and content ­– have become increasingly difficult issues for employers.

“In the past, access issues used to be physical ­ – employers wanted to look in somebody’s desk, locker or briefcase,” Harrison says. “The access issues were relatively easy … employers usually had a policy in place that basically said employees have no reasonable expectation of privacy at work.

“Now you have the computer, servers, cloud computing and electronic devices that employers pay for or that employees pay for, but use for work purposes,” he adds. “Or employees that access information [email or social media] through employers’ networks. Privacy aspects have become so much more complicated … and access is a real hot-button issue.”

So what can employers do to ensure they don’t run into trouble when accessing someone’s work computer or social media? Ironically enough, the answer depends entirely on something decidedly old-fashioned and low-tech – a written policy in an organization’s handbook.

“If an employee uses an employer’s computer or equipment, there should be no expectation of privacy for employees – as long as policies are written properly,” Harrison explains. “Policies are the means by which you tell employees what your expectations are. If you use my server, for instance, there should be no expectation of privacy.”

Lack of a clearly defined policy can create problems. As an example, Harrison points to one invasion-of-privacy case in which an employee was fired for theft of company materials. In this instance, the employer – acting on a tip – used the employee’s work computer to recover the employee’s eBay password, then accessed the employee’s eBay account, where they found stolen company items for sale.

But the court denied the employer a summary judgment in the case. Why? Because there was no specific policy in place regarding employer access to employees’ Web-based accounts.

“The point is that when you’re drafting policies regarding the use of electronic communications, you need to be specific about the things that employees should not expect to be private,” Harrison emphasizes. “The most confusion surrounds Web-based access – employees who use employer-provided or employer-funded devices to access, for example, their social media or gmail accounts. If there’s no policy, employees can come in and say, ‘I had an expectation of privacy.’”

As another example, Harrison recalls a case where an employee denigrated customers on Facebook. A co-worker saw the post and showed it to her supervisor. Later, company officials confronted the co-worker and asked her to log on to Facebook and show them the offending page. She did, but later noted she felt pressured to do it.

“Ultimately, the case turned on whether the employer had authorized access,” Harrison says. “The co-worker had access to the Facebook page because she was a friend [of the employee who posted the comments], but the company did not. So it wasn’t at all about the [social media] content, it was all about access. More and more states now are instituting legislation that limits employers’ access to Facebook and I think you’ll see more legislation there as well.”

But what if a company legally accesses a Facebook account as part of its hiring process and sees something it doesn’t like on a prospective employee’s page – perhaps a photo of the job candidate smoking a cigarette? Or drinking alcohol? Or participating in political activity that the employer doesn’t like?

Or what about a current employee who uses social media to post disparaging comments about a company or its customers? Or can employers discipline employees for what they say on social media about things such as their terms and conditions of employment, salaries or co-workers? In the end, knowledge of federal and state laws is critical.

“Say you’re thinking about hiring someone and you look at their public Facebook page and see a picture of him or her smoking a cigarette,” Harrison theorizes. “And you don’t like to hire cigarette smokers. That could be a problem in some states, depending on the laws.

“These laws are all over the place,” he continues. “Some say you can’t discriminate against someone by not hiring or firing them for engaging in activity that’s lawful, such as smoking or drinking alcohol. Other laws say that political activity can’t be a factor in not hiring or firing employees. Employers should look carefully at the laws in their state.”

The bottom line: Employers must write policies that clearly define what employee information (i.e., social media) is accessible and what is not, then be sure they access that information only in accordance with the policies. In addition, be aware of federal and state laws that prohibit disciplining, firing or not hiring people based on things discovered on social media sites.

“Access and content both present landmines for employers,” Harrison warns. “If your policies are vague – or even nonexistent, which is much more common – you just might be out of luck.”


Comments on this site are submitted by users and are not endorsed by nor do they reflect the views or opinions of COLE Publishing, Inc. Comments are moderated before being posted.