By Francine Esposito, Esq.
Managing employees’ social media use can be very tricky, but the modern employer cannot afford to ignore the challenge. In today’s Advisor, Francine Esposito, Esq., partner at Day Pitney LLP, elaborates on some of the challenges that surround social media management and training, along with the consequences of taking improper actions.
Employees’ social media use can undoubtedly be damaging to employers, including when employees publicly post embarrassing comments about them, disparage their competitors, unknowingly disclose or even purposefully attempt to steal their confidential information, threaten or harass others, or engage in other undesirable conduct that affects a company’s image and reputation.
In addition, employers may be liable under various laws for accessing and/or taking action based on information employees disclose—as well as for failing to take action based on such information. The following offers insight into the consequences surrounding employees’ social media use.
Consequences of Improper Action
The National Labor Relations Act (NLRA): Section 7 of the NLRA guarantees employees, whether or not represented by a union, the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Such conduct may include public complaints about wages and other terms of employment and supervisor conduct—even when they include vulgar or derogatory terms. Employers, unaware of employees’ rights, often maintain overbroad policies and/or discipline employees for such conduct in violation of the law.
Antidiscrimination laws and the Fair Credit Reporting Act (FCRA): Although employers have long known that they cannot discriminate against applicants or employees on the basis of their membership in a legally protected classification, they now have much greater access to such personal information through social media—whether through snooping or just “friending” their subordinates.
Moreover, employers that hire third parties to check the social media presence of an applicant or employee without providing prior notice and receiving prior consent may violate the FCRA and associated state laws.
Stored communications and prohibited access laws: Federal and state computer use laws may create liability for employers as well. For instance, in 2009, a jury awarded back pay and punitive damages to employees who were discharged for their rants about their supervisors and customers on an invitation-only Myspace page.
The employer in that case was found to have unlawfully coerced the employee who had come forward to report her coworkers’ conduct to provide access to the private site, and to have surreptitiously monitored employees’ postings in violation of the federal Stored Communications Act and the parallel state law. Similarly, many states have enacted laws prohibiting employers from requiring applicants and employees to provide access to their personal social media accounts.
In tomorrow’s Advisor, Esposito addresses a different set of consequences from a lack of proper social media management, namely, the consequences of not taking action at all.