Employee Privacy in the Age of Facebook

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Electronic media has given us many new ways of communicating in recent years.  It’s important for employers and employees to know their privacy rights as it relates to social media.

A common misperception some employees have about their employment rights revolve around their expectations of workplace and personal “privacy”.  It is possible personal conduct may affect professional prospects.  Private sector employees enjoy little protection from being disciplined by their employers for inappropriate or disparaging comments that they make about their peers, employers or workplace.

The manner in which an employer learns of an employee’s comments or conduct may determine whether disciplinary action may be taken. While employees may enjoy some protection from truly private conduct and communications, employees that use employer provided computers, networks and mobile devices for personal communications or activities are not typically entitled to presume that these communications are private or confidential.

The most important factor to be considered when deciding whether an employer may access or discipline an employee for supposedly private communications and activities is the employer’s substance of policies that clearly limit the extent of an employee’s privacy expectations. Employers must make it clear that all communications on employer provided computers and networks are subject to monitoring. While employers may monitor private communications that take place on its computers and networks under certain circumstances if this disclosure is not made, the circumstances under which monitoring is only permitted are limited.

However, just because an employee is using employer owned computers, networks, or devices does not mean that every communication is properly subject to monitoring. Communications made through the use of private email accounts or password protected remote data storage networks may not be accessed by an employer, unless the communicated data is saved to an employer owned networks.  An employer may not use key stroke counters to learn employee email passwords and surreptitiously access those emails. Moreover, a recent Supreme Court decision calls into question whether employers may access private communications contained upon employer issued cell phones.

An employer may only access an employee’s private accounts or social networking profiles if the employee provides un-coerced access. For example, an employer may not require its employees to provide them password protected access to their Facebook or Twitter accounts. While it is not clear whether an employer may require their employees to friend them, it is best for an employer to not compel their employees to give them access to social networks that the employee intends to keep private.

This is not to say that an employer may not take action when its employees have made public postings that threaten an employer’s legitimate business interests, although how the employer learns of the post does matter. Employers that gain knowledge of something they consider to be damaging often get caught up in gaining direct evidence of the posts, which is not necessary. If an employer learns of a post, they may ask the person informing them of it to print a screen capture. The employer may then use this evidence against the employee.

While an employer may take disciplinary action based upon an employee’s use of private social media, such action should only be taken when the post violates a clearly defined and narrowly focused social media policy. Policies should lay out the types of damaging social media activity that are prohibited.  However, the type of prohibited activity must be related to protecting the employer’s legitimate business interest, including the preservation of trade secrets, the prevention of defamatory statements that may be imputed to the employer, co-worker harassment, breach of client confidentially, and employer or client disparagement. Enforcement of these policies must be uniform and consistent. Also, when responding to private use of social media, employers must be mindful of the fact that their actions or failures to act may have state and federal discrimination implications.  Additionally, an employer must ensure that they are not retaliating against an employee for engaging in legally protected activity.

As electronic media continues to provide us with new ways to communicate with one another and social media continues to thin the boundaries between private and public life, employers and employees will continue to face new challenges. Employers and employees that are mindful about their response to these new communication tools and media outlets will be in the best position to protect both their reputations and their business interests.

Patrick Kelly is an attorney with Glenn Feldmann Darby & Goodlatte – visit www.gfdg.com