Restrictions in the Workplace
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.
Can the employer monitor, access, review the employee’s electronic communications?
The Stored Communications Act generally prohibits accessing the online account of another without that individual’s consent. In the context of monitoring, accessing or reviewing the employee’s electronic communications, the SCA has been interpreted to allow employers to access employee communications stored on their own electronic communications services (e.g. a company provided email service), as long as access is authorised under the employer’s policies, and the employer has a valid business purpose for doing so. Employee notice of the company’s monitoring policies is critical.
Regarding private email accounts (e.g. gmail, yahoo, etc.) on a company provided device, generally courts have held that an employer cannot access an employee’s private email account. That said, some courts have concluded that an employer can monitor an employee’s private email account, if the employee is using a company provided device or network, and has provided written consent to an employer’s policy authorising broad monitoring practices on company provided devices/networks.
When organisations decide to engage in any level of search or surveillance of their employees, they should consider what their employees’ expectations are concerning privacy. In general, it is best practice to communicate to employees a well-drafted acceptable use and electronic communication policy that informs employees on what they can expect when using the organisation’s systems, whether in the workplace or when working remotely.
On 1 January 2020, the California Consumer Privacy Act took effect, with some data privacy requirements paralleling the EU’s General Data Protection Regulation, as applied to consumer information. Under the privacy notice provision, covered businesses are required to inform employees, as described above, with respect to the categories of personal information they collect and the purposes for which the information will be used. In addition, employees are permitted to commence a private right of action, if affected by a data breach caused by a failure of the employer to maintain reasonable safeguards.
Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information
Employers may prohibit the employee’s use of social media to disparage the employer or divulge confidential information, and may discipline employees for violating such a prohibition, but must tread carefully for two main reasons: First, the employee may be protected under a federal or state whistleblower law, which generally protects employees who complain about certain company activities or conditions affecting public health and safety or violating public policy standards, as well as employees who report potential securities fraud violations. Second, employees (even those who are not unionised) have 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 communication is disloyal or has the tendency to damage an employer’s business and has been made with reckless disregard of the truth or are maliciously untrue.