We use social media all the time. Make it a point during the day to notice how often you see a friend or colleague checking a Facebook update or sending a tweet (or giving you a three-star rating on the new Peeple app). People are on social media all day; on the phone at a bus stop, in class during a lecture, killing time before a meeting, and sometimes even on a computer in the office. Indeed, the office water-cooler talk has effectively been replaced with the office Instagram page. Some businesses even have their own social media page as an attempt to grow business and connect with a larger market share. Other businesses routinely use social media for research, recruiting, and facilitation of multi-office workplaces. But with the many benefits social media can provide, employers must be incredibly careful when navigating the web of laws that could impact social media privacy during workplace investigations.
Social media, for all of its benefits, provides employees additional ways to engage in inappropriate conduct. An employee may contribute to a hostile work environment if he or she posts a discriminatory statement, racial slur, or sexual innuendo directed at a co-worker, manager, customer, or vendor. Employee postings of gossip and false statements about co-workers could create unrest in the workplace and lead to a defamation claim. Finally, because social media can broadcast to a large audience, employees could create significant legal troubles for the company by inadvertently (or in the case of a disgruntled employee, purposely) revealing proprietary or confidential information. And the consequences are not limited to just employee activities; similar activities by management can cause even more legal concerns.
When dealing with social media in the workplace, employers must take note of the laws governing social media use in their particular state. With each passing day, states enact new legislation regarding social media privacy. Currently, fifteen states have passed laws addressing whether and how employers may access employees' social media accounts. The laws vary. Some prohibit employers from requiring employees and job applicants to provide access to their social media accounts through a username and password disclosure. Others prohibit managers from requiring employees and applicants to open their personal page in the manager's presence or friending the manager. Indeed, some laws prohibit a company from requiring an employee to use their personal social media account as a billboard for the company.
Companies should be mindful of privacy protections for employee use of social media, and develop an office social media policy accordingly. Such a policy should educate employees of potential risks associated with social media use, and make the employees aware of the employer’s expectations. Employees should clearly be informed that the employer will not tolerate an individual’s posting proprietary and confidential company information; discriminatory statements regarding management, customers, vendors, or co-workers; and defamatory statements regarding the company, its employees, customers, competitors, or vendors.
In addition, a good social media policy should make clear that mentions of the company must include a disclaimer noting that any opinions expressed are the employee’s own, and do not represent those of the company. Such a policy should clarify that these restrictions apply to social media use at any time on any computer. A social media policy should also address whether an employee can access social media at work, and if so, address restrictions on access and usage at work.
Finally, companies should invest in training both employees and management on social media use. Employees should be trained on how to comply with the office’s social media policy to better ensure that employees are mindful of their social media use. Further, management should be trained on how to address social media in the workplace so that employers do not open the company up to invasion of privacy claims.
Because employees’ social media activities often play a key role in workplace investigations, companies are wise to consult an attorney in drafting a workplace policy and compliance program for the office. With proper training and education, employers can respect employee privacy rights while maintaining a productive and safe working environment.
