privacy and social media in the workplace

PRIVACY AND SOCIAL MEDIA

IN THE WORKPLACE

Charles R. Bailey

Bailey & Wyant, P.L.L.C.

Charleston, West Virginia

June 28, 2013

1.11 billion monthly active users on

Facebook

(Over 100 million of

those users are pets,

objects or brands)

554,750,000 active registered users on Twitter

200 million registered LinkedIn users worldwide

Source: LinkedIn, Statistic Brain, Huffington Post

27% of total U.S. internet time is

spent on social networking sites

15% of total U.S. mobile internet

time is spent on social networking sites

Source: Media Bistro

SOCIAL MEDIA PLATFORMS

Social Networking – Facebook, Google +, LinkedIn

Micro-blogging Sites – Twitter, Tumblr, Posterous

Publishing Tools – WordPress, Blogger

Collaboration Tools – Wikipedia

Rating/Review Sites – Amazon ratings, Angie’s List

Photo Sharing – Flickr, Instagram, Pinterest

Video Sharing Sites – YouTube, Vimeo

Location Based – Facebook Places, Foursquare, Yelp!

Social Bookmarking – Digg, Delicious

Source: Decidedly Social

SOCIAL MEDIA STATS OF EMPLOYEES

39% have befriended a colleague or business

contact on Facebook or LinkedIn

14% have posted a status update or tweeted

about their work

22% have posted a status update or tweeted

about a work colleague

28% have posted photos of colleagues or business

activities

1% have posted confidential business information

Source: Lexis Nexis

FASCINATING SOCIAL MEDIA STATS

23% of Facebook’s users check their account five

or more times EVERY DAY

President Obama’s victory Facebook post was the

most liked photo with over 4 million likes

25% of Facebook users don’t bother with any

privacy control

There are 175 million tweets sent from Twitter

everyday

More than 2.6 million companies have LinkedIn

company pages

56% of Americans have a profile on a social

networking site

Source: Huffington Post, Media Bistro, Convince & Convert

BALANCING AN EMPLOYER’S RIGHT TO

KNOW VS. EMPLOYEE’S PRIVACY

Technology has greatly increased the ability of employers to

monitor employees both inside and outside of the workplace. At

the same time, technologies such as smart phones have blurred

the lines between personal and business, allowing employees to

work from home and conduct personal matters at work.

Social networking sites such as Facebook and Twitter present

particularly pressing privacy questions because they integrate

several services: e-mail like communication, photographs, and

instant messaging.

Oftentimes, social networking sites allow users to post items

“privately” or to a select list of “friends” or contacts. This further

blurs the line between public and private and creates difficult

questions regarding the reasonable expectations of privacy and

consent for employees.

BALANCING AND EMPLOYER’S RIGHT TO


The Pew Research Center released data in

February 2013 indicating that 67% of online

adults use social networking sites.

In recent years Employers have increasingly

sought to monitor and screen current and

potential employees through private e-mail

accounts and social media networking sites.

BALANCING AND EMPLOYER’S RIGHT TO


Public employees are granted more protections

regarding their privacy rights than private

employees

The First Amendment of the United States

Constitution protects public employees’ right to

freedom of speech.

A public employee’s speech may be protected if it (a)

pertains to a matter of public concern and (2) the employee

is speaking as a citizen rather than an employee.

If these facts have been met, a reviewing court will conduct

a balancing test to determine whether the public employee’s

interest in maintaining an effective, non-disruptive

workplace outweighs the public employee’s right to speak

freely. If these factors have not been met, free speech

protections do not apply.

BALANCING AN EMPLOYEE’S RIGHT TO


The Fourth Amendment of the United States

Constitution protects public employees from

unreasonable searches and seizures.

Searches and seizures by government employers or

supervisors of the private property of their employees

are subject to the restraints of the Fourth

Amendment.

“[T]he touchstone of the Fourth Amendment is

reasonableness.” United States v. Kriesel, 508 F.3d

941, 947 (9th Cir. 2007).

In determining reasonableness, courts look at “the

totality of the circumstances to determine whether a

search is reasonable.” United States v. Kriesel, 508

F.3d 941, 947 (9th Cir. 2007).



Public employees’ expectations of privacy in their

offices, desks, and file cabinets…may be reduced

by virtue of actual office practices and

procedures, or by legitimate regulation.”

O’Connor v. Ortega, 480 U.S. 709, 715 (1987).

Courts have found that the question of whether

an employee has a reasonable expectation of

privacy must be addressed on a case-by-case

basis. O’Connor v. Ortega, 480 U.S. 709, 718

(1987).



Even if an employee has a reasonable expectation of

privacy in the item seized or the area searched, he must

also demonstrate that the search was unreasonable to

prove a Fourth Amendment violation.

Courts have held that “public employer intrusions on the

constitutionally protected privacy interests of

governmental employees for noninvestigatory, work-related

purposes, should be judged by the standard of

reasonableness under all the circumstances.” O’Connor v.

Ortega, 480 U.S. 709, 725-6 (1987).

The search must be “justified at its inception,” and

“reasonably related in scope to the circumstances which

justified the interference in the first place.” O’Connor v.

Ortega, 480 U.S. 709, 726 (1987).

WIRELESS DEVICES AND EMPLOYEE’S AND

EMPLOYER’S PRIVACY VIOLATIONS

Everything an employee does on their wireless devices, i.e. smart phone, tablets, etc., is potentially discoverable materials.

Many employees now use more than one personal wireless device for work-related purposes, adding to potential litigation expenses through discovery and litigation holds.

Employees traveling internationally with such devices are subject to the United States Border Security seizure rules.

Lost and stolen devices add additional privacy and confidentiality concerns along with questions on how to handle such situations.



City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (2010) – the Supreme Court of the United States considered the limits of public-employee monitoring and the effect of employee monitoring practices.

While Quon involved a public employer, and while it involved text messages sent by pager, it is nonetheless instructive for all employers with regard to the reasonable expectation of privacy issue.

In Quon the City of Ontario’s police department issued pagers to its SWAT team members, and warned the members that they would be responsible for any charges incurred in excess of the contractual argeement.



The Official department policy was that the

Department had the right to monitor “network

activity including e-mail and internet use” and

that officers “should have no expectation of

privacy” in those communications.

The Lieutenant who issued the pagers had an

informal policy of not examining officers’

messages as long as they voluntarily paid for

charges incurred for excessive use.

Sergeant Jeff Quon, a member of the SWAT

team, exceeded the permitted use several times,

but voluntarily paid the charges each time.



Reversing a judgment for the City of Ontario at the trial – the Ninth Circuit held that the plaintiffs’ right to privacy under the federal and state constitutions had been violated because the search was not reasonable in scope.

On petition for a writ of certiorari to the Supreme Court of the United States, the City of Ontario asked the Court to decide the scope of the various plaintiffs’ reasonable expectations of privacy in the text messages, including the effects of seemingly contradictory formal and informal policies.

The petition also asked the Court to resolve a conflict among the circuit courts of appeals on whether a “less intrusive means” analysis was appropriate.



The Supreme Court of the United States declined to rule on whether or not Sergeant Quon had a reasonable expectation of privacy in his text messages.

The Court cited swiftly changing technology as a reason for its failure to answer that question, saying “[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.” City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (2010).



Thus, for the purposes of its holding in Quon, the

Court assumed that Sergeant Quon had a

reasonable expectation of privacy in his text

messages, that the City of Ontario’s review of the

transcript constituted a Fourth Amendment

search, and that the principles applicable to a

government employer’s search of an employee’s

physical office apply as well in the electronic

sphere. City of Ontario, Cal. v. Quon, 130 S.Ct.

2619 (2010).



The Quon Court then turned on whether or not

the search itself was reasonable and found that it

was because it was motivated by a legitimate

work-related purpose, and because it was not

excessive in scope.

Thus, the Court found that there were

“reasonable grounds for [finding it] necessary for

a noninvestigatory work-related purpose,” as the

Police Chief had ordered the audit to determine

whether the City of Ontario’s contractual

character limit was sufficient to meet the City’s

needs. City of Ontario, Cal. v. Quon, 130 S.Ct.

2619, 2623 (2010).



Although Sergeant Quon exceeded his monthly allotment of texts a number of times, the City of Ontario requested transcripts only for August and September 2002 in order to obtain a large enough sample to decide the character limits’ efficacy, and all the messages that Quon sent while off duty were redacted.” City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).

Additionally, from the City of Ontario’s perspective, the fact that Sergeant Quon likely had only a limited privacy expectation lessened the risk that review would intrude on highly private details of Sergeant Quon’s life.



Employers are now using Global Positioning Devices (GPS) and Radio Frequency Identification (RFID) technology.

GPS is used to track the whereabouts of employees who travel as part of their job, as well as logging driving for purposes of “time worked” and avoiding unauthorized overtime, and disciplining employees for unauthorized deviations and unproductive activities.

Employer policies for RFID devices are vague and not clearly defined. Employers, however, are using such devices for employee access to buildings, time clocks, investigating allegations of work rule violations (e.g. misreporting time spent working), logistics and costs analysis, and generating government required reports.

MONITORING AND CREATING POLICIES

REGARDING INTERNET, E-MAIL, TEXTING, AND

OTHER ELECTRONIC DEVICES

The Electronic Privacy Communications Act (“EPCA”) (18 U.S.C. §§ 2510 et seq.) protects most electronic communications, including e-mail, from interception, attempted interception, disclosure and unauthorized access.

The application of the statute depends upon the medium of the message, the system upon which the message is located, and whether the message is in transit or stored.

Three exceptions relieve an employer from liability for monitoring its employees’ e-mails: (1) consent (which includes implied consent), (2) the “provider” exception (which applies when a company provides its own e-mail service or communications system), and (3) the “intra company communications” exception (when the employer accesses stored communication files).



OTHER ELECTRONIC COMMUNICATIONS

In Fischer v. Mt Olive Lutheran Church, 207

F.Supp.2d 914 (W.D. Wis. 2002), a senior pastor

overheard a telephone conversation by a

children’s pastor which seemed to indicate

possible homosexual relationships.

The children’s pastor was sent home and the

senior pastor hired a technology consultant to

examine the church’s computers.

The children’s pastor had a password-protected

Hotmail account which was accessed through the

church’s internet connection. The senior pastor

guessed the password and accessed the e-mails.




Eventually the senior pastor terminated the

children’s pastor, and the children’s pastor sued

and asserted a common law invasion of privacy

claim, as well as a claim under the SCA, arguing

his e-mails had not been accessed from employer-

provided servers, but rather from a remote, web-

based server owned by Microsoft.

The Court did not definitively answer the

question whether the SCA was violated, but

indicated it believed the legislative history

behind the SCA showed that actions in that case

should be covered by the Act.



OTHER ELECTRONIC DEVICES

In Pure Power Boot Camp, Inc. v. Warrior Fitness

Boot Camp, Inc., (S.D.N.Y., December 22, 2010),

the Court considered a similar situation.

The employees Pure Power Boot Camp had

signed non-compete agreements, but decided to

set up a competing business.

The employer filed a lawsuit based upon the non-

compete agreement and evidence from 546 e-

mails from the employees’ Hotmail and Gmail

accounts which showed that the employees had

taken customer lists and training materials, as

well as solicited customers.




The computers auto-stored user names and

password fields, so the employer simply logged on

as the employees.

The employees countersued for violations of the

SCA and the Court agreed that violations

occurred.

Each employee was awarded $1,000.00 as

statutory damages per violations.

However, the Court did not grant 546 violations,

instead holding that due to the proximity in time

of the access to the e-mails, there was only one

violation.




In Bland v. Roberts the United States Court of Appeals for the Fourth Circuit is considering whether an employee’s “likes” on Facebook is protected by the First Amendment.

The Plaintiffs alleged the Sheriff of Hampton City terminated their employment following his reelection campaign because they supported his opponent through statements on the opponents Facebook page and “liking” the opponents page.

Each of the Plaintiffs claim they supported Sheriff Roberts’ opponent and Sheriff Roberts had knowledge of this support.

The lower court granted summary judgment to the Sheriff, finding that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

The court further held that in other cases considering First Amendment speech have considered actual statements made on Facebook as opposed to a simple “liking” of a page.

A Facebook like is not substantive speech warranting First Amendment protections.




Gresham v. City of Atlanta, 2012 U.S. Dist. LEXIS 63603; 95 Empl. Prac. Dec. (CCH) P44, 502; 33 L.E.R. Cas. (BNA) 1431.

Gresham was employed as a police officer for the City of Atlanta who investigated and arrested a forgery suspect at Best Buy.

Following the arrest Gresham posted on Facebook “Who would like to hear the story of how I arrested a forgery perp at Best Buy only to find out later at the precinct that he was the nephew of an Atlanta Police Investigator who stuck her ass in my case and obstructed it?? Not to mention the fact that while he was in my custody, she took him into several other rooms alone before I knew they were related. Who thinks this is unethical??




The Office of Professional Standards received a

complaint regarding Gresham’s statements on

Facebook, and an investigation concluded

Gresham violated Work Rule 4.1.06 (“Criticism”)

which prohibited employees from publically

criticizing any employee or any order, action, or

policy of the Department except as officially

required.

While the investigation was ongoing Gresham

was ineligible for promotion.

Gresham filed suit asserting she was retaliated

against for her statements on Facebook.




The Court considered Gresham’s claims that she turned to Facebook when her allegations were not fully investigated.

The Court held this argument was disingenuous because Gresham posted on Facebook just Seven (7) days after her complaint.

Additionally, the Court held Gresham’s free speech interests did not outweigh the government’s interests in “maintaining unity and discipline within the police department and in preserving public confidence in its abilities.”

Gresham’s statements on Facebook were not protected by the First Amendment.




In April 2012, the United States Marine Court discharged a Sergeant Stein for posting on a page used by Marine Corp meteorologist “Screw Obama and I will not follow his orders.”

Sergeant Stein had also created a Armed Forces Tea Party page on Facebook.

The court determined Sergeant Stein violated the Pentagon policy limiting the speech of service members.

Sergeant Stein specifically violated DoD Directive No. 1344.10, prohibiting participation in a partisan political club (for sponsering the Tea Party Marines Facebook page), and for his disparaging statements about President Obama

Sergeant Stein received an other than honorable discharge.



The Stored Communications Act (“SCA”) (18

U.S.C. §§ 2701 et seq.) prohibits unauthorized access to

stored electronic communications, giving a private cause

of action for unauthorized access to stored data found on

a computer’s hard drive or e-mail servers.

There is a “provider” exception which would apply to

employer-provided accounts, equipment, etc.

Generally, an employer may monitor an employee’s use

of company provided e-mail systems, internet usage, and

the like.

USE OF SOCIAL NETWORKING SITES IN THE

EMPLOYMENT CONTEXT: RISKS, BEST

PRACTICES, AND POLICIES

Employers have begun to use social networking

sites as part of their background checks on

applicants. There is a wealth of information

which can be found on an applicant’s Facebook or

Twitter page. This can include job attitude,

political affiliation, age, and marital status.

Because information posted on social networking

sites is generally considered public, and because

information posted on web page profiles generally

consists of voluntary disclosures, employers are

not generally restricted from accessing such

information.

SOCIAL MEDIA STATS OF EMPLOYERS

21% have taken disciplinary action because of

information an employee has posted about a co-

worker


information an employee has posted about their

activities at work


information an employee has posted about the

organization

30% have taken disciplinary action because of the

level of an employee’s social media use at work

Source: Lexis Nexis


EMPLOYMENT CONTEXT: RISKS, BENEFITS,

BEST PRACTICES AND POLICIES.

However, an employer should be aware of two

important caveats:

Authentication—everything on the internet is not

infallibly true and correct.

An employer CANNOT use information gathered

through social networking to screen out applicants

based upon membership in protected classes, such as

racial groups, ethnic groups, religious affiliations, etc.

Additionally, because review of candidate profiles on

social networking sites is likely to retrieve isolated

bits of personal information, the employer who

utilizes a search risks making judgments out of

context.



BEST PRACTICES, AND POLICIES

The United States Congress is currently considering the Social Networking Online Protection Act, which prohibits an employer from requiring or requesting that an employee or prospective employee provide the employer with a user name, password, or any other means of accessing a private e-mail account or social networking website of the employee or prospective employee.

The SNOPA further prohibits the employer from discharging, disciplining, or denying employment or promotion or threatening to take any action against any employee or prospective employee for declining to provide a username and password, or other means for accessing a private e-mail account or social networking website and provides for a civil penalty up to $10,000.00.




Illinois 820 Ill. Comp. Stat. § 55/10 (2012) prohibits employers from requesting or requiring any employee or prospective employee to provide any password or other related account information in order for the employer to access the prospective employee’s account or profile on a social networking website.

The bill does not prohibit an employer from maintaining lawful workplace policies regarding the use of employer’s electronic equipment, including policies regarding internet use, social networking site use, and electronic mail use.

However, an employer is not prohibited from accessing information that is in the public domain or that is otherwise obtained in compliance with the statute.

USE OF SOCIAL NETWORKING SITES IN


BEST PRACTICES AND POLICIES

Maryland Code Ann., Lab. & Empl. § 3-712 provides that an employer may not required an employee or prospective employee to disclose any user name, password, other means of accessing a personal account or service through an electronic communications device.

The employer may require an employee to disclose any user name, password, or other means for accessing nonpersonal accounts or services that provide access to the employers internal computer or information systems.

Additionally, the employer may investigate the use of a personal website, internet website, web-based account, or similar account by employee for business purposes to ensure compliance with applicable securities or financial law or regulatory requirements; or to ensure the employee is not engaging in unauthorized downloading of an employer’s proprietary information or financial data to a personal website, internet website, web-based account or similar account.

USE OF SOCIAL NETWORKING IN THE



Other states with similar legislation includes

Oregon, Washington, California, Michigan, New

Jersey, New Mexico, and Utah.

OFF THE JOB BEHAVIOR, E.G., BLOGGING

AND DATING

Romano v. Steelchase, Inc., NO. 2006-2233, 2010 N.Y. Slip Op. 32645U (Sept. 21, 2010), the Supreme Court of New York, Suffolk County, considered whether a plaintiff alleging permanent physical injuries must turn over to defendants information from her social networking pages relevant to her “activities and enjoyment of life.”

The public portions of the plaintiff’s Facebook and MySpace pages showed content that was in direct contradiction to her claims that she had sustained permanent injuries, and defendants sought access to the private portions of her pages in order to gain further contradictory evidence.

The plaintiff used the available privacy settings on Facebook and MySpace to restrict access to only those “friends” she wanted to share information with, but the court found that she could not shield relevant information from disclosure simply because she had adopted privacy settings to restrict access.


AND DATING

The court found that to deny the defendants an opportunity to access these sites not only would go against the liberal discovery policies in New York favoring pre-trial disclosure, but would condone the plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

The court also considered plaintiff’s argument that production of the “private” portions of her social networking pages would be an invasion of privacy under the Fourth Amendment, and held that production of these portions would not violate her right to privacy, and any such concerns were outweighed by the defendants’ need for the information.


AND DATING

Applying Romano to the employment context,

employees may well lack an expectation of

privacy in what they post to their social

networking sites, regardless of the privacy

settings that they have adopted.

Romano adds to the patchwork of state and

federal decisions addressing the privacy issues

and discovery implications surrounding employee

use of social media.

No clear trend has emerged, and courts continue

to grapple with these issues and may reach

divergent opinions.


AND DATING

In Britain, the Press Complaints Commission, a

voluntary regulatory body for British printed

newspapers and magazines, ruled in February

2011 that material published on Twitter should

be considered public and can be published.

The PCC made its decision based on a complaint

by a Department of Transport official that the

use of her “tweets” by newspapers constituted an

invasion of privacy.

The official’s message used by newspapers

included remarks about her being hungover at

work.


AND DATING

The official said that she had a clear disclaimer that the views expressed by her on Twitter were personal and not representative of her employer.

The official argued that she had a reasonable expectation of privacy in her “tweets” but the PCC found that the potential audience for the official’s “tweets” was much wider than her followers because each message could be forwarded by others, known as “retweeting.”

The PCC also agreed with the newspapers’ argument that Twitter was publicly accessible and that the official had not taken steps to restrict access to her messages and was not publishing material anonymously.

Thus, the PCC held that the newspaper articles containing the official’s “tweets” did not constitute a breach of privacy.


AND DATING

In Targonski v. City of Oak Ridge the United States District Court for the Eastern District of Tennessee is considering the Plaintiff’s harassment, hostile work environment, constructive discharge, disparate treatment, and retaliation claims related to rumors of the Plaintiff’s sexual orientation and comments by fellow employees regarding the same.

Targonski asserted that she informed her superior officer that Officer Thomas was spreading sexual rumors about her.

Additionally, Targonski asserted that Officer Thomas directly told her that her husband was trying to get Officer Thomas and his girlfriend to have an orgy involving Officer Thomas’ girlfriend and Officer Thomas felt she was a lesbian and wanted to be part of it.

Officer Thomas was transferred to a different shift but the rumors continued.

Targonski also complained she received six (6) unwanted telephone calls with heavy breathing. The investigation traced the number to Officer Thomas’ girlfriend whom the department attempted to interview, however Targonski would not allow the girlfriend to be interviewed unless she was in the room.


AND DATING

During this same time period Targonski posted

several messages on her Facebook page.

On February 23, 2010, Targonski posted about

her desire for a female friend to join her naked in

the hot tub.

The previous day Targonski discussed “naked

Twister.”

On May 22, 2010, Targonski discussed female

orgies involving Officer Thomas’ girlfriend and

others to be filed by Targonski’s husband.


AND DATING

Plaintiff eventually filed a Motion in Limine to exclude her Facebook postings, asserting that the documents are “impermissible character evidence” with “essentially zero” relevance and a chance of unfair prejudice of “more than zero.”

The Court ruled the Facebook postings are relevent to a key trial issue: whether Plaintiff was subject to “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Harris v. Forklift Sys., Inc. 510 U.S. 17, 21-22 (1993)).


AND DATING

The evidence was ruled relevant to the source of

the alleged rumors and to whether Plaintiff could

truly have found the alleged rumors offensive.

The Court further found Plaintiff previously

authenticated the Facebook postings.

Additionally, the Court ruled that because the

evidence is unfavorable to the Plaintiff does not

make that evidence “unfairly prejudicial.”


AND DATING

A handful of states have enacted legislation which limits the rights of employers to take employment actions based upon such off-duty conduct as blogging and Facebook posts (California, New York, Colorado, Montana, and North Dakota).

Even in states where no such statutes have been enacted employers face legal liability for employment decisions based upon off-duty blogging or Facebook posts, such as

If the employee blogs or posts about status in a protected class, or a medical condition, or a religious belief – employment decisions based on these could lead to a discrimination claim.

If the employee blogs or posts about alleged harassment or discrimination at work – employment decisions based on these could lead to a retaliation claim.

If the employee “whistleblows” about alleged company wrongdoing – employment decisions based on these could lead to a retaliation claim.


AND DATING

What can, and should, an employer do with

regard to monitoring social networking sites?

Example: A soon-to-be Cisco employee posted the

following “tweet” on Twitter: “Cisco just offered me a

job! Now I have to weigh the utility of a fatty

paycheck against the daily commute to San Jose and

hating the work.” A Cisco supervisor saw the “tweet”

and “tweeted” back, “Who is the hiring manager? I’m

sure they would love to know that you will hate the

work. We here at Cisco are well versed in the web.”

The job offer was rescinded shortly thereafter.


AND DATING

Courts have not defined the contours of the

privacy interest which regard to public

employees’ social networking site information;

thus, public employees should use caution in

their use of social networking sites to make

employment decisions.

Several states have recently passed legislation

granting private employees more privacy

protections in their personal e-mail and social

networking activities.


AND DATING

Employers should not rely exclusively, or almost exclusively on the results from any social network review in making any employment decisions.

Employers should clearly train their managers, and all persons who may be involved in the review and/or decision-making process, of the legal obligation to avoid gathering information which might tend to disclose an applicant’s medical conditions.

Employers should exercise caution when seeking to access information disclosed by employees in social media sites and/or disciplining employees for publishing such information.


AND DATING

Employers must strive to find a balance between

protecting their own legitimate business interests

and allowing employees the freedom to express

their opinions and be themselves, particularly

during “non-work” time.

Policies broadly banning an employee’s

statements concerning the employer should be

carefully evaluated.

Employers should issue policies that provide

forewarnings and accurately describe the higher

expectations that usually apply to public

employees.


AND DATING

Any such policies should be narrowly tailored to

address only legitimate, business-related areas,

such as restricting disclosure of trade secrets,

confidential information, and communications

that may violate the employer’s discrimination

and harassment policies.

Employers should not ask an employee to “friend”

another employee or employment applicant for

the purpose of finding out information about the

other employee or employment applicant.

OFF THE JOB BEHAVIORS, E.G., BLOGGING

AND DATING

Even with these safeguards in place, public employers must be mindful of the employee’s free speech protections and protections from unreasonable searches and exercise caution before disciplining an employee for speech that may be considered protected by the First Amendment of the U.S. Constitution or for conducting a search that may violate the Fourth Amendment of the U.S. Constitution.

Private employers must clearly define internal company policies regarding access to employee’s private e-mail and social networking and avoid violating privacy statutes in states having privacy statutes in place to protect employees.

BUSTED BY THE BOSS

SAY WHAT?

BUSTED BY THE BOSS

NLRB AND SOCIAL MEDIA

Section 7 of the National Labor Relations Act grants employees (with or without a union) the right to engage in “concerted activities for the purpose of…mutual aid or protection.”

This right is enforceable under Section 8(a) of the NLRA, which prohibits employers from interfering, restraining or coercing employees who exercise their rights under Section 7, or from discriminating against employees because of their protected activity.

The NLRB has long held that employee communications amounting to concerted activity for mutual aid and protection, having to do with wages, hours or terms and conditions of employment, is protected under the NLRA and cannot be restricted by the employer.

THE NLRB AND SOCIAL MEDIA

In recent decisions the NLRB has held that

blanket employer restrictions on employees

discussing work are illegal.

The NLRB views such restrictions as infringing

on workers rights to discuss work conditions

freely and without fear of retribution, whether

the discussion takes place at the office or on

Facebook, Twitter, etc.

However, the NLRB has allowed companies to

discipline employees acting as lone worker on the

internet.


In Hispanics United of Buffalo, a nonprofit social services provider in upstate New York, a caseworker threatened to complain to the boss that others were not working hard enough.

Another worker, Mariana Cole-Rivera, posted a Facebook message asking, Lydia Cruz, a coworker feels that we don’t help our clients enough at Hispanics United of Buffalo. I about had it! My fellow co-workers, how do you feel?”

Several colleagues posted angry, sometimes expletive-laden responses. “Try doing my job. I have five programs,”…”What the hell, we don’t have a life as is,”


Hispanics United fired Ms. Cole-Rivera and four

other caseworkers who responded to her saying

they violated company harassment policies.

The NLRB concluded, in a 3-1 decision, the

caseworkers were unlawfully terminated.

The decision was based on the NLRB concluding

the posts were the type of “concerted activity” for

“mutual aid” that is expressly protected by the

National Labor Relations Act.


The NLRB, however, did not find protected

activity for a reporter at the Arizona Daily Star.

After being frustrated by a lack of stories the

reporter posted several Twitter comments. One

said “What!?!?! No overnight homicide. …You’re

slacking, Tucson.” Another began, “You stay

homicidal, Tucson.”

The newspaper fired the reported and the NLRB

found the dismissal legal, saying the posts were

offensive, not concerted activity and not about

working conditions.


The NLRB further considered concerted activity in In re: Tasker Healthcare Group d/b/a Skinsmart Dermatology.

Several employees participated in a private Facebook group message during which one of the employees disapproved of the employer’s rehiring of a former employee.

The employee posted a string of expletives about the employer, said the employer should fire the posting employee.

Another employee who was part of the discussion showed the message string to the employer and determined it was “obvious” the employee no longer wanted to be employed by the company and terminated employment.


The NLRB determined the messages were not protected concerted activity and upheld the termination because the message string contained no shared employee concerns over their terms and conditions of employment.

An employee engaging in “mere griping” without any though of forward action is not protected activity.

Employers should understand that employees’ legitimate complaints about work conditions are protected, and they may not discipline employees for such complaints, even if they are overly critical or ultimately are not well founded.


The NLRB issued a Memorandum OM 12-59

(May 30, 2012), summarizing a series of

memoranda from the Division of Advice involving

social medial policies.

Under this Memorandum a rule will be found to

unlawfully chill-protected activity if: (a)

employees reasonably would construe the rule to

prohibit such activity; (b) the rule was issued in

response to union activity; or (c) the rule has

been applied to restrict protected activity.

PRIVACY AND SOCIAL MEDIA IN

THE WORKPLACE

The end.

Questions?