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Social media — Federal

Social media – particularly web-based social networking sites such as Facebook, Instagram, Twitter and LinkedIn – is more popular than ever. The widespread nature of social media brings a host of new workplace issues, both positive and negative. On the good side, social media offers new and often affordable marketing opportunities. Social media also facilitates networking, recruiting, 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.

Employment issues

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. 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 a job applicant’s publicly accessible social networking information to discover whether the 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, gender, color, national origin, age, familial status, disability or religion among others. 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 example, 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. Just as an employer is prohibited from making employment decisions based on information of protected traits obtained in an interview or on a resume or application, employers may not use 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. Therefore, 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.

Reviewing social networking sites for information about existing employees and in the employment context presents these same issues as well as other potential risks and legal limitations. 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.

Limitations and duties in using social media

In looking at the use of social media in the employment context, it is helpful to begin by reviewing some of the basic legal limitations and duties applicable in this area for both employers and employees. Remembering these limitations and duties will help an employer evaluate both the appropriateness of disciplinary action for employee conduct in the use of social media and the appropriateness of the employer’s own monitoring 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.

Duty not to make discriminatory employment decisions

Employment discrimination laws prohibit employers from making employment decisions – such as decisions about the hiring, promotion and termination of employees – based on protected personal characteristics of an employee, such as race, ethnicity, religion, marital status, sexual orientation, pregnancy, genetic information, military service or association with members of protected classes. Employers also may not base employment decisions on certain conduct that is protected by Florida state law, such as voting, jury duty or testifying in court or conduct protected by well-established public policies.

In reviewing social media, it is improper for employers to seek to learn information about protected characteristics of potential or existing employees. Employers should also carry out policies and practices for review of social media in a consistent manner to avoid allegations of discrimination.

At the hiring stage

If employers elect to review social media as part of their hiring process, employers should conduct such a review consistently for all applicants, rather than selectively for only certain applicants. The 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 is important that the employer keep its focus on the person’s qualifications for the job.

Additionally, with respect to an employer’s EEO recordkeeping duties, the EEOC has clarified that such duties do not begin until a job seeker becomes an “applicant.” The issue of who is an “applicant” is a complex legal issue and differs for government contractors. Therefore, it is advisable to consult with legal counsel when determining who is an “applicant” for purposes of recordkeeping requirements.

At the employment stage

In addition to exercising caution in screening applicants using social media and Internet searches, employers should also be cautious about potential discrimination claims for targeting current 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).

Duty not to make employment decisions based on protected conduct under the National Labor Relations Act

Employers should also be aware that employee social networking and blogging may involve speech protected under the National Labor Relations Act (NLRA). One right protected under the NLRA – in both union and non-union settings – is the right of employees to engage in concerted activity relating to the terms and conditions of employment. If employees are using social networking sites or blogs to discuss issues relating to their work environment or conditions with other employees, then that speech is protected and may not be the basis for adverse employment decisions. There are an increasing number of reported decisions where employers having been found liable for violating the NLRA by disciplining or discharging employees for postings on public websites that were found to be protected concerted activity under the NLRA. This area of the law is constantly evolving. As a result, employers should exercise caution in making any employment decisions based on employees’ use of social media to discuss workplace issues – especially when that use involves multiple employees – and consult with legal counsel prior to disciplining or terminating an employee for social media activity.

Duty not to violate privacy rights of employees

Employers also should be mindful of privacy rights in reviewing social media. Some states, such as Florida, recognize a common-law right to privacy and employers may be liable to employees for violation of privacy under those laws. 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 limit any review of social media or Internet sites to only those sites which are publicly available. Employers also should have clear policies reserving their rights to monitor employee use of employer-owned electronic devices or networks and should enforce those policies consistently.

Duty not to access electronic information without authorization

In addition to privacy interests of employees, employers should limit any searches to publicly available sites to avoid violation of federal law. The Stored Communications Act (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.

Duty not to make decisions based on an employee’s report of a violation of law, statute or other regulation

Employers should be careful not to react to an employee’s right to report a violation of law on social media sites. Most states, have strong whistleblowing laws that protect an employee’s ability to report a violation of a law, rule or regulation.

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.

Duty of loyalty

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 business interests of 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 example, employees have the right to protest employer actions or policies when the employees reasonably believe the employer’s actions or policies violate state or federal employment laws (such as anti-discrimination or wage and hour laws) or safety laws. As noted above, the NLRA also protects the right of employees to engage in concerted activity relating to the terms and conditions of employment.

Duty to maintain confidentiality

An employee’s duty of loyalty includes a duty to protect 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 networking sites or personal blogs, disciplinary action may be warranted and, indeed, may be necessary to minimize potential liability for the employer arising from 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. Caution should be exercised, however, because some types of employee speech, such as speech under the NLRA, is protected.

Duty to preserve trade secrets

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.

Duty not to harass, retaliate or discriminate against other employees

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. Such liability may attach if an employer is aware of the use of social media or of any other electronic communication, such as email or text messaging, by employees to discriminate against 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 need to take disciplinary action to avoid liability for the offending employee’s actions.

Duty to maintain a violence-free workplace

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.

Ownership of social media

While many social media sites, such as Facebook, were initially perceived as more “personal” and “social” forms of communication, an increasing number of employers and businesses are using social media as a way of marketing and promoting products and services. Consequently, the question of who owns social media sites, especially those with a more “professional” reputation such as LinkedIn, has recently arisen. Because of the very nature of social media, most employees view their social media accounts as personal, even if they are using the account to promote their professional career either directly (through posting information, which is designed to increase their business or professional reputation) or indirectly (such as listing an employer on a Twitter or Facebook profile).

In recent years, litigation has occurred where employers and employees have disputed who owns information contained on social media sites. For example, in one lawsuit, a company sued its former employee alleging that he had misappropriated company information after he continued to use and maintain a Twitter account that was set up by the company in order to promote the employee. The employee wanted to maintain the account (and his many “followers”) that he had used to provide information to further his professional career. While this matter ultimately settled, it raised the question of whether an employee can continue to use a Twitter account after leaving employment, especially where the purpose of the account is to promote the employer’s business. Similar questions could arise on other social media platforms, such as who “owns” an employee’s LinkedIn contacts, especially if those contacts are customers of the employer.

In order to ensure that a company’s business information (especially that which is proprietary) is maintained by the business, companies may want to consider company Facebook pages where both employees and customers are asked to promote the business.

For those employers that encourage employees to tweet, the employer may want to ask employees who are using Twitter as a marketing tool to create a separate Twitter handle identifying the company and clarifying that the Twitter handle is the property of the company which, like all company property, must be returned at the conclusion of employment. In addition, employers should require that employees sign a policy in which they acknowledge that the company owns the account, all information contained therein and all of its followers.

Of course, all decisions regarding social media should be reviewed constantly given changes in both technology and the law, especially to the extent the National Labor Relations Board continues its Section 7 enforcement activities.

Best practices and policies for social media

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.

Adopt policies for employee use of social networking and Internet pages

Given the prevalence of social media use, it is wise for 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. For a sample Social Media Policy that has been approved by the National Labor Relations Board’s Office of General Counsel, please see:

Employers should also consult with legal counsel prior to adopting a Social Media Policy, as this area of law is rapidly evolving.

Adopt policies for employee use of employer-owned electronic devices and networks

Employers also should adopt written policies that clearly state 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 you should make sure that your policies reflect the current trends in the law.

Employers should also adopt clear guidelines about permissible use of employer-owned electronic devices. For example, employers may want to adopt policies prohibiting employees from accessing pornography or other offensive sites from the employer-owned electronic devices. Employers should warn employees that violation of employer policies will lead to discipline, up to and including, termination of employment.

Don’t forget text messaging

As part of a global electronic communication policy, employers should also include information restricting the use of text messages during those hours of the day that employees are required to perform their work tasks. 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, sensitive company information and trade secrets, yet keeping in mind protected speech under the NLRA.

Apply your policies

If you tell employees that you will monitor emails, use of your Internet/intranet or text messages on company-provided devices, you must follow through with your statement 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 you randomly check these devices on an on-going basis. Whatever you decide to do, document your method and follow-through and apply your policy on a consistent basis.

Follow best practices for your own use of social media in employment decisions

In addition to policies regulating employee use of social media, employers also should follow best practices in using social media in the employment context.

  • Employers should document on-line screening and ensure that all applicants or employees are screened or treated in the same way.
  • To minimize risk of discrimination claims, employers should screen job applicants using social media sites only after meeting the applicant face-to-face and only screening those applicants who already have successfully progressed through the interview process. Alternatively, employers can designate a person to screen social media and that person only forwards relevant information found in social media that does not reveal an applicant’s protected class to the decision maker in charge of hiring or making other employment decisions.
  • Employers who periodically review blogs or social networking sites should inform their employees that it is the employer’s practice to do so and to do so in a uniform manner for all employees. (Again, reviewing such websites has inherent legal risks, as discussed above.)
  • If an employer selects a particular employee for screening or review of online activity or social media use because of concerns of misconduct, the employer should document its reasons for such action (and consider copying in-house or outside counsel to preserve the attorney-client privilege).
  • Be aware that information posted on the Internet is not subject to any accuracy or verification requirements and may be inaccurate.

Be aware of potential use of social media and electronic communications in litigation

Electronic communications – including emails, blogs, text messages, posting on social media sites and personal websites – are an important part of discovery in litigation for both employers and employees. Employers should be aware of the potential for such materials to be used in litigation and use caution in their own electronic communications.