Can the employer monitor, access, review the employee’s electronic communications?
While there is no specific rule prohibiting employers from restricting employees’ social media use during working hours, there are certain laws, discussed below, that employers should consider, particularly with respect to any type of monitoring of employees’ social media use.
Accessing the online account of another without that individual’s consent is generally prohibited. Similarly, simply asking employees for the passwords to access their social media or online account generally is impermissible in a number of states. In addition, employees have common law “privacy rights” which are enforced through tort claims based on invasion of privacy theories. Further, employees have a right to use their employers’ email systems for nonbusiness purposes, including communicating about union organising. Specifically, “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted.”
While different employers can reach different conclusions about whether to monitor employees’ social media use, in all cases, employers should avoid efforts to gain unauthorised access to an employee’s social media account information and should carefully consider any employment decisions it intends to implement on account of information obtained through social media.
Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information
Employers must tread carefully in situations where an employee disparages the employer or divulges confidential information using social media. An employee who reports alleged securities fraud on a company blog monitored by management to detect improper activities within the workplace could be protected, for example, under SOX. Employees (even those who are not unionised) are also afforded the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticise their employers—with co-workers and outsiders. However, these protections can be lost where the employee’s outbursts about a supervisor are too “opprobrious”. Protection also could be lost where the communication is disloyal or has the tendency to damage an employer’s business and are made with reckless disregard of the truth or are maliciously untrue. What exactly constitutes protected concerted activity requires further examination and analysis of the facts at issue on a case-by-case basis.
The Acting General Counsel found a social media policy that prevented “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” to be lawful “since it prohibit[ed] plainly egregious conduct, such as discrimination and threats of violence.” Additionally, the Acting General Counsel determined that an employer’s social media policy preventing the dissemination of trade secrets and confidential information was lawful where the policy provided numerous examples of what specifically should not be disseminated, such as system development information, processes and internal reports.