Overview: Social media in the workplace is one of HR's greatest challenges at the moment, given the almost daily changing legal and technological landscape. First, there is the issue of whether and when an employer may monitor employee use of social media. It is critical for employers to develop and implement a social media policy which guides employees with respect to proper use of social media. Employers should aim to strike a balance between monitoring employee activity and respecting employee privacy rights as well as the right of union and non-union employees under Section 7 of the National Labor Relations Act (NLRA) to engage in protected concerted activity.
Social media policies should clearly articulate the legitimate business interests the employer seeks to protect as well as provide clear definitions of prohibited conduct and private and confidential information and specify the consequences for violations of the policy. While employers have a valid interest in prohibiting the disclosure of confidential information and trade secrets over social media and prohibiting discriminatory and obscene conduct, employers should avoid interfering with the employee right to improve their wages, hours and working conditions and engage in protected activity.
Further, employers may be interested in using social media in the workplace as a tool in recruiting and hiring and management in order to gain more information about job applicants and employees.
Trends: There is a growing movement among state and federal lawmakers to pass legislation that would prevent employers from requiring that employees and applicants provide their user names and passwords to social media networks. This would essentially prohibit employers from seeking personal and private information about employees and applicants which could then be used as a basis for an adverse employment action.
In addition, the National Labor Relations Board has shown a clear willingness strike down social media policies that could be reasonably interpreted to chill the right of union and non-union employees to engage in protected concerted activity under Section 7 of the NLRA. Further, employers should be cautious about disciplining employees for social media use when they are engaging in protected concerted activity.
Author: Beth P. Zoller, JD, Legal Editor
Wisconsin has become the latest state to enact a social media privacy law prohibiting an employer from requesting that employees or applicants disclose access information to a personal internet account so that the employer may obtain access to an employee's or applicant's nonpublic personal internet account.
The Federal Financial Institutions Examination Council (FFIEC) released guidance to help its members' regulated financial institutions (e.g., banks, savings associations, credit unions and nonbank entities supervised by the Consumer Financial Protection Bureau and state regulators) understand its expectations regarding their use and management of social media.
The use of social media in the workplace by both an employer and an employee is rapidly expanding as technology is evolving and becoming ever more present. As a result, an employer needs to understand how to develop effective social media policies and properly monitor employee use of social media.
In a recent federal district court case, an employee who engaged in abusive, harassing and offensive behavior via social media lacked a First Amendment claim against her private employer because constitutional claims are only permitted against public entities.
To provide employers with guidance and advice on how to manage and monitor Google Glass in the workplace, XpertHR has added six FAQs.
HR guidance on creating policies on social media in the workplace. Support on creating enforceable, useful policies on social media at work.