Social media has become so engrained in people’s lives that they may not realize that they may be subject to different expectations when they enter the workplace. As a result, an employer should set clear expectations at the beginning of the employment relationship to minimize risk of future conflict or even litigation.
Indeed, studies now indicate that a majority of employers have implemented workplace social media policies. It is important to note, however, that employers are subject to limitations on the scope and implementation of such policies.
In Nebraska, one such restriction is the Workplace Privacy Act adopted by the Unicameral Legislatures in 2016. And, on the federal level, the National Labor Relations Act has been interpreted to restrict employer policies even in non-union workplaces.
Therefore, it is important for employers to put standards in place, but also be aware of the potential pitfalls. In general, an employer should develop a sound social media and technology policy that:
(1) defines the boundaries of the employees’ expectations of privacy;
(2) protects the employer’s online reputation without running afoul of federal labor law;
(3) ensures productivity is not affected;
(4) protects the employer’s confidential information and data;
(5) governs the use of the employer’s technology and/or “bring your own device” policies; and
(6) addresses the extent to which the employer will access an applicant’s social media during the hiring process.
The best social media and technology policies include the consequences of rule infractions and define what actions lead up to and include termination. That leaves no room for equivocation. And, prior to taking any action in enforcing their policies, employers may want to consider seeking legal advice first.
Employee Privacy. Nebraska’s Workplace Privacy Act provides a new set of protections for employees, which may not be the basis for any adverse action by an employer. Such protections include:
- Not being required to provide a user name or password to the employer in order to gain access to the employee or applicant’s personal internet account;
- Not being required to lot into any account in order to enable the employer to view the contents; and
- Not being required to add anyone to a list of contacts or to change the settings on any account which affects the ability to others to view the content.
Despite the foregoing, the Workplace Privacy Act does not prevent an employer from limiting use of the employer’s equipment and devices, or from monitoring the employee’s use of such.
Online Reputation. Many employers do not realize that the National Labor Relations Act (NLRA) can strictly limit the ability to adopt social media policies. The National Labor Relations Board (NLRB), which is charged with enforcing the NLRA, has concluded that employers can violate the NLRA if an employer policy has a “chilling effect” on the right of employees to discuss wages, hours and other terms of employment with fellow employees and non-employees.
Such rights of employees are protected under the NLRA as part of the right to potentially organize a union, but apply to any employer whether there is a union involved at the workplace or not.
The NLRB has concluded that many policies intended to protect an employer’s online reputation can be “unlawfully overbroad” under the NLRA. In order to avoid being “overbroad,” policies need to be limited to protection of confidential and proprietary information. Policies can require employees to be “respectful,” but cannot preclude any and all negative comments about the employer or workplace.
In light of the restrictions, language used in such policies must be carefully drawn. By giving real-life examples, employers can avoid confusion and minimize risk. On the other hand, company social media platforms can also provide an excellent forum for showcasing employee creativity and personality. Employers need to designate a clear policy about who is permitted to post on company platforms and how non-posting employees can forward their ideas on for consideration.
Productivity. One area in which the courts and policymakers generally have not restricted employers is in the ability to limit use of the employer’s equipment and devices in order to ensure workplace productivity. Nevertheless, employers often recognize that some level of personal internet and email use is almost inevitable. It is important to craft policies that are tailored to the employer’s particular workplace and workforce, and can be enforced with consistency.
Cybersecurity. Employers also generally have wide latitude to act to protect confidential and proprietary information and data. Employees generally do not have the right to jeopardize the employer’s legitimate interests by their use of equipment and devices. Employers need to work with their information technology experts to craft policies that ensure that security risks do not result from the use of email and social media by employees.
Devices. In the current landscape, it is also commonplace for an employee’s personal smartphone, tablet or home computer to interact with workplace equipment and devices at some level. Some employers and employees prefer a “bring your own device” environment. Yet employers may have duties to protect and preserve information and communications that could be preserved on the employee’s device. Employers – again working with their information technology experts – should anticipate potential issues and develop proactive policies.
Hiring Process. Finally, an area requiring sensitive analysis is the extent to which the employer should examine an applicant’s social media presence during the hiring process. Obviously, as noted, the employer cannot require the applicant to provide access to any non-public areas of social media. But to what extent – and at what stage of the process — should an employer investigate an applicant’s publicly accessible online information?
Although it may have become second nature to many to “google” anyone and anything, those involved in the hiring process must take into account the potential for employment discrimination claims, and so the use and timing of investigations into an applicant’s online presence should be scrutinized and subject to policy. Again, consistency will be crucial.