Social media – particularly web-based social networking sites like Facebook, Twitter and LinkedIn – have exploded in popularity over 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 ages 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 the activity or not. In fact, a recent study showed that at least 20% of surveyed 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.
Given the novelty of the social media, how unsettled the law is and the good chance that a misstep may create substantial legal risk, employers are encouraged to consult with counsel for guidance on 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.
Example - Studies report that roughly 35% of employers “Google” job applicants or do general Internet searches on job applicants as part of the employers’ hiring process; and 23% of employers also review social networking sites to screen job applicants. Additionally, 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, age, marital status, disability, or religion, among others. Accordingly, 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 reviewing 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.
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 would otherwise not be known to the employer.
By performing these types of searches, one risk for employers is that a potential or existing employee may claim that he or she was 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.
Additionally, according to a study conducted by the American Chamber of Commerce (the Chamber) in August of 2011, the National Labor Relations Board (NLRB) has reviewed more than 129 cases involving employer reaction to an employee’s use of social media. Of these, the Chamber’s report noted that there were 117 charges, 7 complaints, and 5 settlement agreements. In many cases, the NLRB has determined that an employer’s social media polices restricting employee’s social media use was 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. Consequently, employers must be aware of 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. Potential legal issues include:
- the privacy interests of the employees
- avoiding any discriminatory or potentially discriminatory practices in conducting social media review
- non infringing on employees' rights to engage in protected, concerted conduct
- being realistic about the potential inaccuracy of information on the Internet.
Each of these limitations – along with employees’ duties in using social media – is discussed in more detail herein.
Employers' limitations and duties in using social media
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 an employer evaluate both the appropriateness of disciplinary action for employee conduct in the use of social media, as well as the appropriateness of the monitoring and reactions to employees’ 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, except to the extent that such information may indicate that the employee or applicant is a member of a class of persons protected by law from harassment or discrimination. 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.
- ensure compliance with applicable laws or regulatory requirements
- investigate an allegation of unauthorized transfer of an employer’s proprietary or confidential information to an employee or applicant’s personal account or
- investigate a violation of applicable laws or work-related employee misconduct prohibiting an employee from using a personal account for business purposes or prohibiting an employee or applicant from accessing or operating a personal account during business hours, while on business property using an employer paid for network and resources.
Duty not to make discriminatory 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:
- national origin or ancestry
- physical or mental handicap unrelated to ability
- sexual orientation
- marital status
- arrest records
- genetic information
- concerted activity of employees regarding terms of employment
- assertion of a workers' compensation claim
- military or veteran status
- gender identity and/or expression.
In reviewing social media, it is improper for employers to rely upon information about protected characteristics of potential or existing employees. In addition, employers should always review 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 with the following key points in mind.
- Consistency - Use consistent selection criteria for all applicants. If an employer chooses to review applicants on websites, they must review the same websites for each applicant.
- Consent - If an employer will be reviewing publicly available information contained on social media sites as part of the recruitment process, add a provision to the application, whether on-line or on paper, asking the applicant to consent to the use of information obtained through social media sites. Give examples of the information that will be used.
- Do not friend or require access - Do not attempt to obtain access to an applicant’s private Facebook or LinkedIn profile by “friending” them. Do not request passwords, user names or other identifying information for an applicant’s private social media website or account.
- Impartiality - Assign the duty to review social media to a third person whose job it is to gather consistent evidence and who does not make the hiring decision.
The EEOC has issued an opinion letter that serves as 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 knowledge about the 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 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 Office of Federal Contract Compliance Programs have drafted a guideline, which is available online.
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 considered an applicant:
- the employer has acted to fill a particular position
- the individual has followed the employer’s standard procedures for submitting applications
- individual has indicated an interest in the particular position.
At the employment stage
Employers should be cautious about potential discrimination claims for targeting certain employees for review of social media use. If an employer elects to review a 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 search should be documented to avoid potential allegations of discrimination or of violations of Illinois privacy laws.
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). In addition, in Illinois it is generally unlawful for an employer to ask a current or prospective employee to provide usernames or login information to their social media accounts or profiles or to access his or her account in order to allow the employer to view the content of non-public portions of a profile. The law prohibits employers from:
- requesting or requiring that any employee or applicant provide their passwords or “related account information,” to any social networking site to an employer who wants to gain access to that account
- except for content-based requests, described previously, demanding access “in any manner,” which includes asking an employee or applicant to access his or her personal profile for review by the employer, to an employee’s or applicant’s account or profile on a social networking website.
Duty not to make employment decisions based on protected conduct
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 work places, “Section 7” of the act also applies to non-union work environments. Notably, Section 7 provides employees the right to engage in concerted activity relating to the terms and conditions of employment, including:
- two or more employees addressing their employer about improving working conditions and pay
- one employee speaking to his or her employer on behalf of himself or herself and one or more coworkers about improving workplace conditions
- two or more employees discussing pay or other work-related issues with each other, including issues related to supervision and management.
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:
- benefits, salaries, wages or pay issues
- employee job performance
- staffing levels
- protests of supervisory actions
- criticisms of an employer's promotional event that employees believed would negatively impact their sales commissions
then that speech could be protected and may not serve as a lawful basis for an adverse employment decisions.
The NLRB has been very active 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. 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. More recently, however, the NLRB has taken the position that it will review restrictions that may be contained in an employer’s social media policy by balancing the employer’s legitimate business interests against the employee’s protected rights. The NLRB stated that the following rules would generally be considered lawful:
- civility rules, including prohibitions against disparaging co-workers or offensive language
- restrictions on photography or recordings
- prohibitions on insubordination or uncooperative behavior
- prohibitions on disclosing confidential information, customer information or non-public proprietary information
- restrictions on employees making inaccurate statements about the employer’s products or services
- prohibitions on using company logos or trademarks
- prohibitions on employees acting as spokespersons or representatives of the company, without authorization
- prohibitions on using social media to engage in competition with the company or other disloyal behavior.
The NLRB will continue to review broader restrictions on speech and social media use, based on the context surrounding the rules, to determine whether such rules created an unlawful chilling effect on protected speech. While not exhaustive, the following is a list of situations where employers should not discipline an employee based on social media posts that involve a discussion among employees about workplace conditions:
- DO NOT discipline employees who discuss workplace responsibilities and performance online, regardless of the use of poor language in the discussion.
- DO NOT discipline employees who seek input on a social media site from a co-worker about a problem at work.
- DO NOT discipline employees who discuss feelings about co-workers online.
- DO NOT prevent employees from discussing the company, their co-workers or the company’s competitors online, even if the discussion is negative.
- DO NOT restrict employees from using social media in a way that “may violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of that person."
- DO NOT restrict employees from posting pictures of themselves online even if the pictures depict the employer’s logo, if the picture is related to work activities or if the picture is related to activities protected under the NLRA.
Example - An employee’s post of himself wearing a shirt with a company logo while demonstrating against the employer for better workplace conditions is legitimately related to the employee’s rights under the NLRA and an employer could not discharge or otherwise discipline, the employee based on that post, even if it violated an employer prohibition about posting pictures online in a company uniform or showing the company logo.
On the other hand, an employer could legitimately take action against an employee’s post of himself wearing a company uniform and participating in offensive conduct that does not relate to workplace conditions.
Duty not to violate privacy rights of employees
Employers should also be mindful of privacy rights in reviewing social media. 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 this 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 should also limit any review of social media or Internet sites to only those sites which are publicly available.
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. “Without authorization” may include situations in which the employee has saved passwords into a work computer in a manner that allows a supervisor or manager to gain access to an employee’s account without actually knowing the password.
In order to reduce the risk of violating Illinois law, employers should also have policies in place that prevent employees or managers from asking a current or prospective employee to provide login information to their private social media accounts or profiles. Make sure all employees are aware of this law and the limitations on obtaining information from social media.
Duty not to make decisions based on a violation of law, statute or 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 law.
Employees' limitations and duties in using social media
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 which 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 by law and may not qualify as the basis for disciplinary action.
Example - Employees have the right to protest employer actions or policies when the employees reasonably believe the actions or policies violate employment laws (i.e., 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.
Duty to maintain confidentiality
An employee’s duty of loyalty includes a duty to protect confidential information of the employer. Many employees 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. Consistent with the concerns raised above regarding the NLRA, employers should be careful to draft their confidentiality policies and agreements narrowly and with specificity, in order to reduce the chance that these restrictions would be invalidated as impinging on protected employee rights.
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. Revealing 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 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 investigate carefully in order to take disciplinary action to prevent future occurrences.
Duty to maintain a safe 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, which may require the involvement of law enforcement.
Best practices and policies for use of social media in an employment context
As is often the case with employment issues, employers may 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 written policies for employee use of social networking and Internet pages
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. Outright prohibition of social media use is generally not practical or lawful, but employers should set out a list of prohibited conduct related to social media and blogging. Policies should remind employees of their duties to:
- refrain from disclosing confidential or proprietary information about sensitive company information
- refrain from engaging in behavior that would violate the company’s anti-discrimination or harassment policies
- refrain from using social media to post or to display comments about co-workers, customers, vendors, suppliers and members of management that are obscene, physically threatening or intimidating
- refrain from posting or displaying content that is an intentional public attack on the quality of the company’s products and/or services in a manner that a reasonable person would perceive as calculated to harm the company’s business and reduce its income and is unrelated to any user concern involving wages, benefits and conditions of employment
- refrain from posting company logos, images or any comments in a manner suggesting that the employee is representing the company.
Of primary concern to the NLRB are social media policies that act to repress the rights of employees to speak amongst each other about work conditions. The General Counsel for the NLRB has criticized policies because they do not contain an explanation that the policies do not apply to concerted, protected activity under Section 7 of the NLRA. Employers should therefore review social media policies to make sure that the policies:
- emphasize the legitimate purpose that the policy attempts to achieve
- are narrowly tailored to articulate and meet a legitimate purpose (policies should not categorically restrict employees from engaging in activities that could be deemed to include concerted activity)
- contain a specific disclaimer that the employer will not apply the policy in a such manner as to restrict an employee’s rights under the NLRA, including the right to communicate with coworkers regarding terms and conditions of employment
- are enforced consistently.
Policies for employee use of electronic devices and networks
Employers should also adopt written policies that state clearly whether the employer reserves the right to monitor employer-owned or employer-provided electronic devices or networks. Employers should also adopt policies to state clearly that employees may not use their own devices to misuse employer resources or engage in misconduct. 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 necessary updates. The law in this area has changed dramatically over the last few years and employers want to make sure that policies reflect current trends in the law.
Employers should also adopt clear guidelines about permissible use of employer-owned electronic devices.
Example - An employer 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 these policies will lead to discipline, up to and including termination of employment.
As part of a global electronic communication policy, an employer may also seek to restrict text messaging during working hours. A well-drafted policy will convey the same restrictions that apply to social media sites, including warnings not to send sexually explicit emails to coworkers or clients, warnings against discrimination and harassment and warnings against texting or tweeting about clients, coworkers, 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 earlier. 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 coworkers to lawfully communicate about the terms or conditions of employment.
Apply your policies
If an employer tells employees that they will monitor emails, use of internet or text messages on company-provided devices, they must follow through with that 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 the employer randomly checks these devices on an on-going basis. Whatever is decided should be documented regarding method and follow-through.
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 gotten through the interview process.
- If an employer intends to periodically review blogs or social networking sites, employees should be informed that it is its practice to do so and to do so in a uniform manner for all employees.
- If an employer selects a particular employee for screening or review of on-line activity or social media use because of concerns of misconduct, the employer must document any and all reasons for that action.
- If an employee asks management to review the content of a social media site in response to having seen harassing statements or inappropriate content involving a co-worker, for instance, document that the employer received access to this content in a lawful manner.
- Be aware that information posted on the internet is not subject to any accuracy or verification requirements and may be inaccurate.
Potential use of social media and electronic communications in litigation
Electronic communications – including emails, blogs, text messages, posting on social media sites and persona 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, including those made by the employer.