Balancing Employee and Employer Rights
In the past few years, there has been an explosion in the use of social networking technologies. While these technologies represent tremendous opportunities for employers, they also contain the potential for various legal pitfalls. It is important for employers and their counsel to understand the benefits of social media, such as using it for recruiting; the disadvantages, such as lost productivity; as well as the legal issues that can arise when using social media. The following sections will provide: (1) an overview of the most popular social networking sites and technologies; (2) a look at their use in the workplace; (3) a discussion of the potential legal issues employers face when utilizing these tools; (4) a look at recent cases before the U.S. Supreme Court and the NLRB; and (5) suggestions for implementation of an appropriate social networking policy.
I. Commonly used social networking technologies
Facebook (www.facebook.com) is a social networking website where users can add friends, send messages, and update their profiles to notify others about themselves. Users have the ability to join networks organized by city, workplace, school, and region, as well as groups for common interests. This social networking website was initially launched in 2004 by Harvard undergraduates and it quickly spread worldwide. Facebook currently has over 300 million active users. Notably, the trend is no longer unique to the younger generation as the 35-49 year old age group has recently experienced the largest growth.1
Myspace (www.myspace.com) is one of the world's largest social networks with over 125 million users. Myspace is considered the music network, connecting millions of bands with millions of music lovers. Along with music, Myspace is similar to Facebook where users can add friends, send them messages, and comment on their profiles. Users can customize their profiles, add music, and there are even several independent websites offering Myspace customized layout designs for profiles.2
Twitter (www.twitter.com) is a social networking service that enables its users to send and read messages known as "tweets." Tweets are posts of up to 140 characters displayed on the author's profile page and delivered to subscribers who are known as "followers." Launched in 2006, Twitter asks one question: "What are you doing?" This service is recognized by celebrities and corporations for its self-promotion. Twitter grew 1,382% between February 2008 and February 2009. A February 2009 compete.com blog entry ranked Twitter as the third most used social network based on their count of 6 million monthly visitors.3
LinkedIn (www.linkedin.com) is a
social networking website focused on professional networking. This
website allows registered users to maintain a list of contact
details of people they know and trust in business. The people in
the list are called "connections" and users can invite
anyone to become a connection. Launched in 2004, LinkedIn currently
has over 50 million members in over 200 countries
worldwide.4 These connections can help members find
jobs, list jobs, and search for potential
candidates.5
Meettheboss (www.meettheboss.com) is a
business networking tool for business executives around the world.
Members of Meettheboss have individual profiles with listed
business interests. This site features weekly interviews with
industry leaders heading large global companies. Discussion groups
are set up with Question and Answer sessions to provide
opportunities for users to make contacts and gain insight from
industry leaders.6
Plaxo (www.plaxo.com) is another social
networking service and online address book that provides automatic
updating of contact information. Users store their information on
the servers and when this information is edited by a user, the
changes appear in the address books of all those listed as a
contact. In 2008, Plaxo reported 20 million
users.7
Chamber (www.chamber.com) is a business
networking site connecting 2000+ local business communities
worldwide. According to the site, it is an online chamber of
commerce "on steroids." It allows members the ability to
(1) market products and services; (2) network quickly and easily in
local chambers and around the world; and (3) access specialty
webinars.
Employers and their counsel must be familiar with these social
networking websites and especially their prevalence. According to a
Nielson Report, time spent on these social networking sites
accounted for one in every eleven minutes spent on the internet
around the world in 2008.8 Additionally, 35% of hiring
managers "google" applicants, while 23% check social
networking sites and approximately 1/3 of these searches results in
a job rejection.9 Moreover, 79% of employees use social
networking at work for "business
reasons."10
Texting is the exchange of brief written
messages (140 characters or less) between mobile and portable
devices (iPhones; Blackberries; pagers; etc.).
Blogs are a type of interactive website,
usually maintained by an individual with regular entries of
commentary, description of events, or other material such as
graphics or video. A typical blog combines text, images, and links
to other blogs, as well as links to other websites and other media
related to this topic. Blogs also typically provide their readers
the ability to post comments for an interactive
dialogue.11
II. Social networking technologies in the workplace
Social networking sites are great resources for employers for
marketing and advertising purposes. Additionally, social networking
sites provide a good resource for recruiting. As many as 47% of
employers state that they use social networking sites to look at
candidate profiles. Indeed, social networking sites can provide
insight into whether a candidate will fit with the company culture.
A list of justifications for screening applicants through these
tools is extensive and the number of employers who are taking
advantage of it continues to grow. Even the Obama administration
required candidates seeking positions in the administration to
disclose any potentially damaging or embarrassing emails, blogs,
and text messages they had produced, as well as provide a link to
their social networking sites so that they could be
inspected.12
A story reported on MSNBC.com provides a real world example of
social networking as a tool in recruitment. The story concerned a
corporate recruiter charged with hiring physicians. The recruiter
would log into Facebook to view a candidate. In one particular
incident, the recruiter found pictures of a candidate taking hers
shirt off at parties, and called the candidate to request an
explanation. He was unimpressed and did not offer her the position,
stating "[H]ospitals want doctors with great skills to provide
great services to communities. They also don't want patients to
say to each other, 'Heard about Dr. Jones? You've got to
see those pictures.'"13
Employers have also found social networking technologies useful
during litigation and in conducting investigations. In addition,
there are sometimes advantages to allowing employees to use social
networking technologies in the workplace – some employers
even encourage it. Business justifications for allowing
on-the-clock use of social networking include (1) strengthening of
professional relationships; (2) promoting the company; and (3)
allowing employees to share information with each other.
Along with the benefits, there are disadvantages in using social
networking websites in the workplace. One disadvantage for
employers is in the form of lost productivity resulting from the
time employees spend on these sites.
- 79% of employees admit to using social media at work for "business reasons"
- 82% of employees admit to using such media during work time for "personal reasons"
Various groups have conducted surveys to inquire as to employee
opinions on the use of social networking technologies in the
workplace:
- 74% of employees say it is easy to damage a company's reputation via social media
- 24% of employees say they do not know if their employer even has a formal policy regarding social networking
- 15% of employees admit that they would comment about their employer online if they disagreed with something the employer did
- 27% of employees say they do not consider the ethical consequences of posting online
- 37% of employees say they rarely or never consider what their boss or colleagues would think, and 34% say they rarely or never consider what their clients would think
Of course, employers have disciplined and discharged employees
based on their use of social media. In March 2009, the Philadelphia
Eagles fired an employee for criticizing the Eagles on his Facebook
page. Dan Leone, a gate worker at the team's stadium, posted an
angry, expletive-laced complaint about the team's failure to
re-sign safety Brian Dawkins. Management found out and fired him
for making the team look bad.
III. Legal issues
There are, of course, a number of legal issues that arise with
the use of social media in the workplace. Significantly, employers
and their counsel must be cognizant of privacy, confidentiality,
and privilege concerns.
One issue that arises with using social networking websites to
pre-screen candidates is the possibility of discrimination claims.
By screening an applicant's Facebook or Myspace page, for
instance, an employer may become aware of a candidate's race,
religion, gender, sexual preference, age, nationality, marital
status, and/or disability. Through these searches, employers may
become aware of information which they would not have otherwise
known - or be legally entitled to know - through a simple
interview. The issue then becomes proving that this information was
not the basis for the employer's decision not to hire a
candidate.14 Employers can take actions to protect
themselves from these types of discrimination claims, however.
First, they should have in place a policy regarding the use of
social networking in conducting background checks. Second, they
should consistently apply the policy. Third, they should limit such
screenings to a few well-trained individuals and have non-decision
makers search and filter information.
Another issue that arises with social networking in the workplace
is privacy. Employers must be cognizant of invading employees'
privacy through monitoring the use of these sites. Employees have a
privacy interest in the content of information if the employee has
taken reasonable efforts to keep the information private and the
employee derives economic, personal, emotional, or other value in
keeping the information private. An employer infringes upon this
employee privacy if the employee's interest in keeping the
information private from the employer outweighs the employer's
interest in obtaining the information and the employer nevertheless
requires that the employee provide the information to the
employer.15
To have a privacy interest in the information, an employee must
take reasonable efforts to keep the information private. If an
employee has not restricted access to the information, then the
employee arguably did not take reasonable steps to keep the
information private from the employer. An example is if an employee
has a web page that is accessible and open to internet users where
the employee posts personal pictures and information on the web
page. The employee has not taken reasonable steps to keep the
information private. In contrast, if an employee has a personal web
page that is accessible only to those who enter a proper username
and a password, and the employee only provides passwords to her
friends and family, then the employee has taken reasonable steps to
keep the information private. Therefore, in the second example, the
employee has a privacy interest in the information on her web
page.16
Along with common law privacy, the Stored Communications Act
("SCA") also comes into play for employees' use of
social networking sites. The SCA is a federal statute that
prohibits third parties from accessing electronically stored
communications (e.g., e-mail or Facebook entries) without proper
authorization.17 Pursuant to the SCA, an offense is
committed by anyone who: "(1) intentionally accesses without
authorization a facility through which an electronic communication
service is provided;" or "(2) intentionally exceeds an
authorization to access that facility; and thereby obtains . . .
[an] electronic communication while it is in electronic storage in
such system."18 "Electronic storage" is
defined in an earlier part of the Wiretap Act as: "(A) any
temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission thereof;
and (B) any storage of such communication by an electronic
communication service for purposes of backup protection of such
communication."19 The SCA aims to prevent hackers
from obtaining, altering, or destroying stored electronic
communications.20
Konop v. Hawaiian Airlines, Inc. provides an example of
the applicability of this statute on this issue. Konop, a
case from the United States Court of Appeals for the Ninth Circuit,
concerned the denial of summary judgment to an employer on the
employee's SCA claim.21 In Konop, an
airline pilot sued his employer, alleging that the airline viewed
the pilot's secured website in violation of the SCA. The pilot
maintained a website, in which he criticized the airline, the
airline's officers, and the union. Airline employees were
eligible to access the site by logging in with a username and
password created by the individual employees. Management employees
were expressly excluded and were not eligible to create usernames
or access the site.22
The vice president of the airline was concerned that the pilot was
making untruthful allegations on the website. The vice president
asked an eligible employee to assist him with accessing the
website. The vice president was upset by the pilot's
accusations on the website and contacted the union regarding the
website.23 Regarding the pilot's SCA claim, the
Court found that there was an issue of fact as to whether the
eligible employee was a "user" of the website -- in other
words, whether the eligible employee has the power to
"authorize" the vice president, a third party, to access
the website. If the vice president is authorized to access the
website, then the employer would be exempt from liability under the
SCA.24
In addition to the SCA, employers also need to recognize potential
issues under the National Labor Relations Act
("NLRA").25 An employer monitoring
employees' social networking sites may have a chilling effect
on employees' communications regarding the terms and conditions
of their employment. In Endicott Interconnect Technologies,
Inc., the National Labor Relations Board ("NLRB")
found that the company had violated Section 8(a)(1) of the NLRA. In
Endicott, the NLRB found an employee's posting on a
public-forum website -- in favor of union representation at the
company, and criticism of recent management of the company -- was
protected conduct under the NLRA. The company was found to have
violated 8(a)(1) by threatening, and then discharging, the employee
for his statements on the website.26
In a similar case, the NLRB held that the company's policy
prohibiting employee use of the company e-mail system for "non
job-related solicitations" did not violate Section 8(a)(1) of
the NLRA. In The Guard Publishing Company d/b/a The
Register-Guard, the company implemented a policy that
communications systems, including e-mail, are not to be used for
non job-related solicitations. The company was aware that employees
sent personal e-mails such as baby announcements, party invitations
and sports tickets, but there was no evidence employees used e-mail
to solicit support for any outside cause or organization other than
the annual United Way fundraiser. An employee received two written
warnings for sending e-mails to employees at their company e-mails
soliciting union support.
The union filed a charge alleging the company violated Section
8(a)(1) by maintaining its policy and discriminatorily applying it
against union-related e-mails. The Board compared e-mail systems to
other types of employer-owned property -- such as bulletin boards,
telephones and televisions -- and found that there was no statutory
right to use an employer's equipment or media as long as the
restrictions are not discriminatory. The Board also found that the
employee's e-mails soliciting union support were different than
the occasional emails about baby announcements, and that the
e-mails supported an outside group or organization. Ultimately, the
Board found that employees have no statutory right to use the
company e-mail system for Section 7 purposes under the NLRA (the
rights of employees to form, join, or assist labor organizations,
and other concerted activities for other mutual aid or
protection).27
Along with these potential legal issues, employers must be aware of
issues that arise during litigation after accessing information
from employees. Some courts have found that employers violate state
professional conduct ethics rules by retaining and using emails
protected under the attorney-client privilege
doctrine.28 For example, in Nat'l Econ. Research
Assoc. v. Evans, a Massachusetts Superior Court ruled that an
employee did not waive the attorney-client privilege for personal
e-mails sent and later accessed by his employer.29 The
court denied the company's motion to compel disclosure of
attorney-client communications between a past employee and his
attorney.
Many of these emails were on the employee's work computer using
his personal e-mail account, not his company account. The court
held that the employee did not waive the attorney-client privilege
because he did not use the company intranet or e-mail, and he did
not forward the communications to his company intranet or save them
in a file on his company laptop. Therefore, the court found that
the employee took adequate steps to protect the confidentiality of
his privileged communications.30 The law on this issue
depends on the employer's specific jurisdiction. However, the
lesson for employers is to have a properly drafted e-mail policy
that is clearly disseminated to employees and updated as
appropriate.31
IV. The Supreme Court's reluctance to provide guidance on employees' privacy rights in the use of new communications technologies in the workplace
Employment lawyers awaited with curiosity last year as the U.S.
Supreme Court considered the case of City of Ontario,
California v. Quon, 130 S. Ct. 2619 (2010), where the employer
terminated an employee for transmitting sexually-explicit text
messages on an employer-owned pager. The employer paid for the
pager's service plan, but the employee reimbursed the employer
for his personal use of the pager beyond the allotted minutes of
the plan. When the employer performed an audit of pager use, to see
if the service plan needed changed, it discovered the explicit
messages and terminated the employee. The trial court upheld the
termination, but the Ninth Circuit Court of Appeals reversed. Both
courts ruled that the employee had a reasonable expectation of
privacy, but disagreed on whether the employer's interests were
sufficient to override the employee's right. During the
subsequent appeal, many hoped that the Supreme Court would shed
some light on how to balance an employee's right to privacy
with an employer's right to run its business. The first warning
sign that this would not happen occurred during oral argument of
the case. In discussing the concept of text-messaging, Chief
Justice Roberts commented "I thought, you know, you push a
button; it goes right to the other thing." Justice Scalia
replied "You mean it doesn't go right to the other
thing?"
Indeed, the Supreme Court eventually ruled that the case could be
resolved without determining the extent of the employee's
privacy rights. Assuming that the employee did have a reasonable
expectation of privacy, the Court held that the employer's
interest in auditing the pager records overrode that right. Thus,
the Court declined to rule on what it called an issue of
"far-reaching significance," stating that such a decision
would be premature because it is "uncertain how workplace
norms, and the law's treatment of them, will evolve."
According to the Court:
The Court must proceed with care when considering the whole concept
of privacy expectations in communications made on electronic
equipment owned by a government employer. The judiciary
risks error by elaborating too fully on the Fourth Amendment
implications of emerging technology before its role in society has
become clear. . . . Prudence counsels caution before the facts in
the instant case are used to establish far-reaching premises that
define the existence, and extent, of privacy expectations enjoyed
by employees when using employer-provided communication
devices. . . . Cell phone and text message
communications are so pervasive that some persons may consider them
to be essential means or necessary instruments for self expression,
even self-identification. That might strengthen the case for an
expectation of privacy. On the other hand, the ubiquity of those
devices has made them generally affordable, so one could counter
that employees who need cell phones or similar devices for personal
matters can purchase and pay for their own. And employer policies
concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such
policies are communicated. . . . A broad holding
concerning employees' privacy expectations vis-à-vis
employer-provided technological equipment might have implications
for future cases that cannot be predicted. It is preferable to
dispose of this case on narrower grounds.
Quon, 130 S. Ct. at 2629-30 (emphasis added).
Consequently, the Quon decision shed little light on the
extent of an employee's privacy rights when texting on an
employer-owned device.
And, employment counsel should not hold their breath waiting for
the Supreme Court to take its analysis of social networking
technologies any further. Justice Breyer admitted in November 2010
that he simply does not understand technologies such as Facebook.
While giving a speech at Vanderbilt University, he said "If
I'm applying the First Amendment, I have to apply it to a world
where there's an Internet, and there's Facebook. And there
are movies like The Social Network, which I couldn't
even understand." While the highest court in the land may not
be very eager to tackle the issue of Facebook and other
technologies in the workplace, unions may force the NLRB to do
so.
V. NLRB files complaint over "Facebook firing"
In late 2010, the NLRB filed a Complaint against AMR of
Connecticut, an ambulance company that had fired an employee for
comments she made about her supervisor on Facebook. The Complaint
alleged that AMR's Facebook policy illegally restricted
employees' rights to engage in concerted activity regarding the
terms and conditions of employment. The case quickly settled, with
the employer agreeing to revise its social networking policies to
ensure that it did not interfere with employees' rights to
discuss their wages, hours, and other conditions of employment.
Because of the settlement, the NLRB never had to render an actual
decision in the case. Thus, there will be no review by a court and,
while the case provides some guidance, it has no
precedential value. While we know the NLRB thought the case on its
particular facts warranted the issuance of a complaint, we know
little else.
The AMR case seems to have sparked additional charges, however. On
February 4, 2011, the Connecticut State Employees Association /
SEIU filed an unfair labor practice charge (No. 34-CA-12906)
against Student Transportation of America, a Connecticut bus
company, alleging that the employer violated the NLRA by
maintaining and enforcing a policy that prohibits the use of
electronic communication and/or social media in any manner that may
"target, offend, disparage, or harm customers, passengers, or
employees," or violate any other company policy. The charge
does not allege any improper discipline – it simply
attacks the policy itself. Likewise, the Communications Workers of
America have filed an unfair labor practice charge against T-Mobile
pertaining to its "restrictive and overly broad policies
against employees' freedom to discuss workplace issues on
social networking sites." Again, it appears that it is the
policy itself that is under attack. Whether these cases will
proceed to actual decisions by the NLRB remains to be seen.
VI. Creating a social networking/social media policy
It is essential for employers to develop a social networking policy, especially in light of the many legal issues that may arise. Employers must consider the many goals that the policy intends to cover, such as:
- Protecting the company's trade secrets, confidential, proprietary and/or privileged information;
- Protecting the company's reputation;
- Protecting the privacy of employees; and
- Establishing guidelines for whether use of social networking sites during working hours is permitted, and if so, under what circumstances.
Employers must also consider the parameters in developing a new
policy, such as:
- Urging employees to go to Human Resources with work-related issues and complaints before blogging about them;
- Setting forth the potential for discipline, up to and including termination, if an employee misuses social networking sites relating to employment;
- Establishing a reporting procedure for suspected violations of the policy;
- Enforcing the policy consistently and with regard to all employees;
- Reiterating that Company policies, including harassment and discrimination policies, apply with equal force to employees' communications on social networking sites;
- Reminding employees that the computers and e-mail system are Company property intended for business use only, and that the Company may monitor computer and e-mail usage; and
- Arranging for employees to sign a written acknowledgment that they have read, understand, and will abide by the policy.
VII. Conclusion
Employers should embrace social media as a useful resource. Employers and their counsel must also be cognizant, however, of the legal issues that arise when taking advantage of this resource. Technology will continue to develop, as will the law regarding its implementation in the workplace.
Footnotes
(1) See www.facebook.com; see also Global Faces and
Networked Places: A Nielson Report on Social Networking's New
Global Footprint (2009) (hereafter "Neilson Report"),
available at
http://scribd.com/doc/13112459/Global-Faces-And-Networked-Places-A-Nielson-Report-On-Social-Net-Workings-New-Global-Footprint
(last visited December 18, 2009).
(2) See www.myspace.com; see also Myspace, Wikipedia,
http://en.wikipedia.org/wiki/myspace (last visited December 18,
2009).
(3) See www.twitter.com; see also Twitter, Wikipedia, available at
http://en.wikipedia.org/wiki/Twitter (last visited December 18,
2009).
(4) See www.linkedin.com; see also LinkedIn, Wikipedia, available
at http://en.wikipedia.org/wiki/LinkedIn (last visited December 18,
2009).
(5) Id.
(6) See www.meettheboss.com; see also MeettheBoss, Wikipedia,
available at http://en.wikipedia.org/wiki/meettheboss (last visited
December 18, 2009).
(7) See www.plaxo.com; see also Plaxo, Wikipedia, available at
http://enwikipedia.org/wiki/plaxo (last visited December 18,
2009).
(8) Neilson Report, surpa note 1.
(9) Karen Glickstein, Social Networking and Employment Law (2008),
available at
http://forthedefense.org/articles/Social%20Networking%20and%20Employment%20Law.pdf>
(last visited December 18, 2009).
(10) Chris Crum, Is Social Media Good or Bad for Business?,
WebProNews, October 28, 2008, available at
http://www.webpronews.com/topnews/2008/10/27/is-social-media-good-or-bad-for-business.
(11) See Blogs, Wikipedia, available at
http://en.wikipedia.org/wiki/Blogs (last visited December 18,
2009).
(12) Jackie Calmes, For a Washington Job, Be Prepared to Tell All,
N.Y. TIMES, November 12, 2008, available at
http://www.nytimes.com/2008/11/13/us/politics/13apply.html.
(13) Glickstein, supra note 10.
(14) This pre-screening issue potentially implicates a number of
federal employment statutes inclduding the Americans with
Disabilities Act ("ADA"), Title VII of the Civil Rights
Act of 1964 ("Title VII"), the Age Discrimination in
Employment Act ("ADEA") and the Uniformed Services
Employment and Reemployment Rights Act ("USERRA"), among
other statutes providing protection for employees and
applicants.
(15) Restatement of Privacy, § 7.03 Privacy Interests in
Content Information.
(16) Id.
(17) 18 U.S.C. § 2701.
(18) Id.
(19) 18. U.S.C. §§ 2510(17), 2711(1) (definitions of
Wiretap Act are applicable to Store Communications Act).
(20) In re DoubleClick Inc. Privacy Litigation, 154 F. Supp.2d 497
(S.D.N.Y. 2001).
(21) Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir.
2002).
(22) Id. at 872-73.
(23) Id. Note that the Court first dismissed the pilot's claim
under the Electronic Communications Protection Act
("ECPA"), known as the Wiretap Act, because the vice
president's act of logging into the site did not constitute an
"interception" of an electronic communication and was
therefore not prohibited by the ECPA. Id. at 879.
(24) Konop, supra note 21, 302 F.3d at 880; See also Pietrylo v.
Hillstone Restaurant Group d/b/a Houston's, No. 06-5754, 2008
U.S. Dist. LEXIS 108834 (D.N.J. July 25, 2008)(upholding a jury
verdict with punitive damages in which the company was held liable
under the SCA for intentionally accessing a chat group on an
employee's myspace account without having received
authorization from the myspace member to join the group).
(25) 29 U.S.C. § 157.
(26) 345 NLRB No. 28 (Aug. 27, 2005).
(27) 351 NLRB No. 70 (Dec. 16, 2007).
(28) Sean Carnathan, Attorney-Client Privilege Trumps Workplace
Regulations, ABA Section of Litigation, Fall 2009, Vol. 35 No.
1.
(29) No. 04-2618 BLS2, 2006 Mass. Super. LEXIS 371 (Mass. Super.
Aug. 2, 2006).
(30) Id. at *11.
(31) Carnathan, supra note 27.
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