Social media – particularly web-based social networking sites like Facebook, Twitter, and LinkedIn – have exploded in popularity in recent years. The popularity of such social media is not limited to college students or to the newest generation of workers. Indeed, some recent studies have concluded that adults between the ages of 35 and 44 are the dominant users of most social networking sites. Those statistics mean that a large number of employees are active on social networking sites whether the employer is aware of their activity or not. In fact, recent studies suggest that approximately 60% of employees admitted to visiting social media sites during work hours.
The explosion of social media brings a host of new workplace issues, both good and bad. On the good side, social media offers new and often affordable marketing opportunities. Social media also facilitates networking, recruiting, and professional connections, and allows businesses to stay connected to customers in new ways. On the bad side, social media can present some thorny workplace issues. This chapter addresses some of those issues and provides practical advice about what employers can and cannot do with respect to social media in the hiring, supervision, discipline, and firing of employees.
Note: Given the novelty of social media, how unsettled the law is, and the good chance that a misstep can create substantial legal risk, employers are encouraged to consult with counsel for guidance on the use and regulation of its use with applicants and employees.
Given the popularity of social media, employers increasingly are turning to social networking websites and information on public websites as a way to gain information about prospective and current employees. For instance, studies report that roughly 79% of employers “Google” job applicants or do general Internet searches on job applicants as part of the employers’ hiring process. Thirty-seven percent of employers also review social networking sites to screen job applicants. Employers report that roughly one-third of job applicants are rejected based on information learned from these types of searches.
Having access to information on publicly available websites and social networking sites presents some obvious potential benefits to employers. Accessing this type of information, however, also presents some dangers that may be less obvious.
As a general matter, there is no legal prohibition on employers reviewing publicly accessible information, such as information on public social networking sites or general public websites. Employers may want to review social networking sites to discover whether a job applicant’s use of social media reflects poor judgment, reveals information about illegal drug use, or otherwise contains postings that potentially could be embarrassing to the employer if the applicant were hired. For existing employees, employers may be interested in reviewing an employee’s use of social media to determine whether the employee has engaged in any inappropriate or damaging conduct, such as making harassing statements about co-workers, making defamatory remarks about the employer, or disclosing any confidential or protected information of the employer.
The review of such information, however, does come with some legal risks, as well as some legal limitations. Employers may not make employment decisions – such as hiring, promotion, or termination – based on protected personal characteristics of an employee, including race, familial status, disability, or religion among others. As an outcome to that rule, employers may not seek information about a job applicant’s personal characteristics – such as information about whether the applicant has any disabilities or information about the applicant’s religious views – during the application process.
By using Internet searches or review of social media to screen job applicants, employers may become aware of personal information about the job applicant that the employer may not legally seek or use in the hiring process. For instance, reviewing a job applicant’s Facebook page may reveal that the applicant is disabled or otherwise show that the employee has some protected personal characteristic that the employer may not seek to know or consider in hiring. Reviewing social networking sites for existing employees presents this same issue. By doing these types of searches, one risk for employers is that potential or existing employees may claim that they were the subject of an adverse employment decision – such as not being hired or promoted – because the employer discriminated against them based on the employee’s protected characteristics that the employer learned from reviewing social media or public Internet sites.
In many cases, the NLRB has determined that the employer’s social media polices restricting employee’s social media use were overbroad and violated the NLRA’s rules regarding concerted activity. Even policies prohibiting the disparagement of the employer on company time have been ruled illegal. Employers also must be aware of other potential risks and legal limitations in reviewing social media in the employment process, and in taking disciplinary action based upon an employee’s social media posts. Among other things, employers must be aware of legal privacy interests of employees, of avoiding any discriminatory or potentially discriminatory practices in conducting social media review, of protected activity by employees in the use of social media, and of the potential inaccuracy of information on the Internet. Each of those limitations – along with employees’ duties in using social media – is discussed in more detail below.
In looking at the use of social media in the employment context, it is helpful to start by looking at some of the basic legal limitations and duties applicable in this area for both employers and employees. Remembering these limitations and duties will help evaluate both the appropriateness of disciplinary action for employee conduct in the use of social media and the appropriateness of the monitoring procedures and responses to employee use of social media.
As long as employers limit their review of social media and Internet sites to only those that are publicly accessible, no law prohibits employers from reviewing publicly available information about applicants or employees. At-will employers also have the right to terminate employees for no reason or for any reason that is not discriminatory or otherwise prohibited by law. Employers, however, should be cognizant of the following limitations and duties in using social media as a basis for employment decisions.
Employment discrimination laws prohibit employers from making employment decisions – such decisions about the hiring, promotion, and termination of employees – based on protected personal characteristics of employee, such as:
Employers also may not base employment decisions on certain protected conduct, such as carrying out important societal duties, or conduct protected by well-established public policies.
In Colorado, the lawful off-duty conduct statute prohibits employers from terminating an employee for engaging in lawful conduct off the employer’s premises during non-working hours, unless the conduct is reasonably related to employment or creates an appearance of a conflict of interest. This law could be used to protect an employee for social media activity, and is another reason that employers should seek the advice of legal counsel before terminating an employee because of lawful online activities. The lawful off-duty conduct statute is discussed in more detail in Topic, Discrimination.
In reviewing social media, it is improper for employers to seek to learn information about protected characteristics of potential or existing employees. Employers also should carry out policies and practices for review of social media in a consistent manner to avoid discrimination allegations.
If employers elect to review social media as part of their hiring process, employers should conduct such a review with the following key points in mind.
The Equal Employment Opportunity Commission (EEOC) has issued an opinion letter that serves as a “guidance” regarding Electronic Resumes with Video Clips. In this guidance, the EEOC states that it is not illegal for an employer to learn the race, gender, ethnicity, or disability status of an individual prior to an interview. Nevertheless, the EEOC strongly cautions that the knowledge about race, gender, ethnicity, or disability status of an individual at this stage increases the risk of discrimination, or the appearance of discrimination. If an employer learns about such information, it should focus on the person’s qualifications for the job.
Additionally, with respect to an employer’s equal employment opportunity (EEO) recordkeeping duties, the EEOC has clarified that such duties do not begin until a job seeker becomes an “applicant.” The EEOC and Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFFCP) have drafted a guideline, which is available on line at:
The guideline clarifies that for purposes of recordkeeping the term “applicant” in the context of Internet and related data processing technologies “depends upon the user’s recruitment and selection procedures. The concept of an applicant is that of a person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities.” To be an applicant, the following must have occurred:
Additionally, the EEOC has issued informal guidance regarding Electronic Resumes with Video Clips. It is available at:
Employers should be cautious about potential discrimination claims for targeting certain employees for review of social media use. If an employer elects to review the social networking site for a particular employee because of a belief that the employee has engaged in some misconduct relating to social media, the reasons for that belief and the selective search should be documented to avoid potential discrimination allegations. Employers may not access an employee’s password protected site without specific authorization from the employee to do so. Employers should also be careful about asking other employees who have access to a password-protected site to gain access for the employer. These actions could violate the Stored Communications Act (SCA) or state law.
The National Labor Relations Act (NLRA) was enacted in 1935 to guarantee employees the right to organize and form unions, and to bargain collectively with the employer over terms and conditions of employment. While the statute primarily applies to unionized workplaces, Section 7 of the act also applies to non-union work environments. It provides employees the right to engage in concerted activity relating to the terms and conditions of employment, including:
Employee social networking and blogging may involve speech protected as “concerted activity.” If employees are using social networking sites or blogs to discuss issues relating to their work environment or conditions with other employees, such as:
then that speech could be protected and may not be the basis for adverse employment decisions.
As stated earlier, the National Labor Relations Board (NLRB) has been very active in the last several years in reviewing charges related to disciplinary actions based on an employee’s actions involving social networking. The NLRB has charged employers for violating the NLRA by disciplining and discharging employees for postings on public websites that were found to be protected concerted activity under the NLRA. As a result, employers should exercise caution in making any employment decisions based on employees’ use of social media to discuss workplace issues when that use involves multiple employees. In many cases, the NLRB has concluded that employer social media policies that prohibit employees from discussing work-related issues, posting pictures wearing company logos, or complaining about workplace issues have violated the NLRA.
On August 18, 2011, the NLRB’s General Counsel issued a memorandum to all Regional Directors summarizing the NLRB’s actions regarding social media policies. When broken down, the memo provides guidelines to employers regarding employee activities on social media sites that the NLRB considers a violation of the NLRA. A common thread that runs through the actions that the NLRB found objectionable was that the offending post was a discussion of ongoing disputes that the employee had with the employer, or it was an online continuation of discussions amongst employees. The following is a list of situations where employers should not discipline an employee based on social media posts that involve a discussion amongst employees about workplace conditions:
Employers also should be mindful of privacy rights in reviewing social media. Colorado law recognizes a common-law right to privacy. Employers may be liable to employees for violation of that right. The general test for privacy violations is whether the conduct was an intentional and unauthorized intrusion into private matters that would be highly offensive to a reasonable person.
As a general rule, no invasion of privacy occurs when an employer simply observes information that is “out in the open” or publicly available. Employers, however, may violate an employee’s privacy interests if the employer intrudes on an area for which the employee may have a legitimate expectation of privacy. For that reason, employers should have clear policies reserving their rights to monitor use of employer-owned electronic devices or networks and should enforce those policies consistently. Employers also should limit any review of social media or Internet sites to only those sites that are publicly available.
In addition to privacy interests of employees, employers should limit any searches to publicly available sites to avoid violation of federal law. The SCA prohibits third parties from intentionally accessing electronically stored communications, including emails or entries on private websites, without proper authorization. There are reported cases of employers facing liability for intentionally accessing employees’ private social networking accounts without authorization.
Employers should be careful not to react to an employee’s right to report a violation of law on social media sites. Most states, including Colorado, have strong whistle-blowing laws that protect an employee’s ability to report a violation of law.
Employees also are constrained by legal duties and limitations in their use of social media. Employees generally owe their employers certain basic duties. When an employee’s utilization of social media violates any of these duties, disciplinary action may be warranted. Although this list certainly is not exhaustive, some of the primary duties that employees owe their employers include the following.
It is a longstanding rule that employees owe their employers a general duty of loyalty. Actions that violate this duty – such as acting against the interests of the employer or disparaging the employer on social networking sites or in personal blogs – may be valid grounds for disciplinary action in many circumstances. Caution should be exercised, however, because some types of employee speech – even if disparaging to the employer – are protected and may not form the basis for any disciplinary action. For instance, employees have the right to protest employer actions or policies when the employees reasonably believe the actions or policies violate employment laws (such as, anti-discrimination or wage and hour laws) or safety laws. As noted previously, the NLRA also protects the right of employees to engage in concerted activity relating to the terms and conditions of employment.
An employee’s duty of loyalty includes a duty to protect the confidential information of the employer. Many employers reinforce this general rule with express policies and even contracts prohibiting employees from disclosing confidential information. If employees disclose confidential information from their workplace on social network sites or personal blogs, disciplinary action may be warranted and, indeed, may be necessary to minimize potential liability for the employer for such disclosures. As an example of when disciplinary action is necessary, employers who wish to enforce their written agreements in court by filing a restraining order must show that they took reasonable steps to protect their confidential information. Evidence that the employer disciplined employees based on breaches of confidential information is an example of such reasonable steps.
Trade secrets are a particularly important type of confidential information for many businesses. Because of the importance of trade secrets, employers frequently have specific policies or employment contracts prohibiting trade secret disclosure. Revelation of trade secrets in the course of employee social media use is another area not only warranting employee discipline, but in some cases mandating it, to ensure continued trade secret protection. Evidence that an employer took disciplinary action against employees who breached policies regarding the disclosure of trade secrets will be required if an employer wishes to obtain a restraining order.
Most discrimination laws prohibiting discrimination, harassment, and retaliation against employees apply not only to employers but also to other employees. An employer’s tolerance of such discriminatory conduct by employees, of course, also may lead to liability by the employer for the discriminatory conduct. The employer may face such liability if it is aware of the use of social media, or of any other electronic communication, such as email, or text messaging, by employees to discriminate or harass other employees. As a result, an employee’s use of social media or other forms of electronic communication to harass or express discrimination against other employees is another area in which employers likely will want to take disciplinary action. Even such seemingly innocuous comments such as "Ok, Boomer" and "snowflake" often used on social media can cause discrimination in the workplace and should be monitored closely.
Even more serious than harassment or discrimination are threats of violence by employees against others in their workplace. If an employee is using social media as an outlet to express threats against co-workers or threats of workplace violence, employers should take action.
As is often the case with employment issues, employers can protect themselves best from the potential risks and liabilities involved with social media by adopting sound policies and utilizing best practices. Although each employer should tailor their policies and practices for their unique circumstances and consult legal counsel in uncertain situations, the following list provides some basic guidelines that employers should consider adopting.
Given the prevalence of social media use, it is wise for most employers to adopt written policies for employee use of social networking and Internet sites. Prohibition of social media use generally is not practical, but employers should set out a list of prohibited conduct related to social media and blogging. Policies should remind employees of their duties to:
A primary concern to the NLRB is that offending employers’ social media policies act to repress the rights of employees to speak amongst each other about work conditions. The General Counsel criticized inspected policies because they did not contain an explanation that the policies did not apply to Section 7 of the NLRA. Employers should therefore review social media policies to make sure that the policy provisions:
Over the coming years the NLRB will continue to review employer policies to better define this new legal landscape. As the NLRB further defines this area, employers will learn more about what they can and cannot do. Employers must therefore keep abreast of the new developments. To ensure that specific employment actions will withstand scrutiny, it is highly recommended that employers engage an attorney to update any social media policy and all decisions concerning social media use.
Employers also should adopt written policies that state clearly whether the employer reserves the right to monitor employer-owned or employer-provided electronic devices or networks. Among other things, employers may want to reserve the right to monitor employees’ use of the Internet, instant messaging, email, or text messaging on employer-owned or employer-provided devices. Employees also should be reminded that emails and instant messages are business records that may be used in litigation, audits, and investigations. Employers who already have such policies should consider reviewing their current policies for needed updates. The law in this area has changed dramatically over the last few years and it’s important to make sure that all company policies reflect the current trends in the law.
Employers also should adopt clear guidelines about permissible use of employer-owned electronic devices. For instance, it may be desired to adopt policies prohibiting employees from accessing pornography or other offensive sites from the employer-owned electronic devices. Policies requiring respectful and professional language in all electronic communications also are generally wise. Employers should warn employees that violation of employer policies will lead to discipline, up to and including, termination of employment.
As part of a global electronic communication policy, employers also should include information restricting the use of text messages during the work hours. A well-drafted policy will convey the same restrictions that apply to social media sites regarding not sending sexually explicit emails to co-workers or clients, anti-discrimination warnings, warnings against texting or tweeting about clients, co-workers, sensitive company information, and trade secrets. However, any restrictions on the use of text messaging must be compliant with Section 7 of the NLRA, as discussed previously. Any policies or restrictions must make clear the legitimate purpose of the policy (for instance, to protect confidential trade secrets), and must include a disclaimer that the policy does not seek to restrict the ability of co-workers to lawfully communicate about the terms or conditions of employment.
If employees are made aware that emails, use of the company’s Internet, or text messages on company-provided devices will be monitored an employer must follow through with such statements in order to overcome the employee’s right of privacy in their use of these forms of communication. One suggestion is to develop a process where these devices are checked randomly on an on-going basis. Such decisions on monitoring should be clearly documented in regard to the policy and its enforcement.
In addition to policies regulating employee use of social media, employers also should follow best practices in using social media in the employment context.
Electronic communications – including emails, blogs, text messages, posting on social media sites, and personal websites – are more and more frequently becoming an important part of discovery in litigation for both employers and employees. Be aware of the potential for such materials to be used in litigation and use caution in all electronic communications.