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Nyemaster Goode Top 10 List: No. 6 – Social Media and the Workplace: 2014 Trends

By Randy Armentrout

One of the hottest areas in employment law in 2013 was how employers dealt with employees’ use of social media in the workplace. This trend will continue in 2014 as more employees go online to social media websites while working and courts struggle to balance the interests of employers and employees. The following is a list of issues we will continue to track in 2014:

Can employers require employees to provide social media website passwords to permit employers to conduct background checks or monitor current employees?

In 2013, seven states passed Internet Employment Privacy Acts. Under the various versions of the Acts, employers were prohibited from requiring employees to provide access to accounts on social media websites. A similar bill was introduced in Iowa, but did not pass in 2013. An Iowa employer should ask whether obtaining an employee’s private accounts on a social media website is job related and consistent with business necessity. There are many personal things about an employee that may be revealed if social media is searched that the employer does not want to know, such as an employee’s private medical conditions.

Can employers monitor employees’ communications at work?

Most courts have held that an employee does not have a legitimate privacy interest in communications initiated, received, or stored on an employer’s system, particularly if the employer has a written policy that gives notice to the employee that such communications may be monitored. Under the proposed Internet Employment Privacy Act in Iowa, there is a provision that permits employers to monitor and review communications stored on the employer’s electronic communications devices or network. The question that arises is where is the line drawn when the employee is using the employer’s system to access social media websites?

Should managers “friend” or link with employees on social media websites?

An employer’s managers are its eyes and ears for detecting problems in the workplace, such as sexual harassment. A manager who is linked with an employee may spot potential harassment in a social media post and take immediate steps to prevent it. In addition, there are many cases in which managers detect employee misconduct by simply reading employee posts on social media. Courts have upheld terminations based on this information. On the other hand, an employer have imputed knowledge of harassment or an employee’s protected class if a manager is linked with an employee who revealed such information in a post. If the manager fails to report the information to human resources or take other action, the employer could face liability.

Does it matter who sends the “friend” request? In states which passed Internet Employment Privacy Acts, a manager who sends a “friend” request to an employee may run afoul of the Act as it is means for the employer to gain access to the employee’s social medial account. The interesting question is what about employees who send “friend” requests to managers? This could be considered volunteering information. Whether information learned by the employer under this circumstance violates the Act may come down to whether the manager perused the employee’s entire account after the voluntary link or simply read new posts by the employee in an ongoing news feed.

Can employers have a written policy that prohibits employees from posting negative information about the employer on social media websites?

In the numerous cases issued by the NLRB recently, it is clear that a blanket policy prohibiting all negative information would violate Section 7 of the NLRA. Under Section 7, employees “have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For example, an employee has the right to post information about her wages or other terms and conditions of her employment for the purpose of communicating with other employees who may have similar issues. Employment policies that deal with social media should be carefully scrutinized to avoid a clear unfair labor practice.



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