Increasing numbers of workers use social media on the job. If you use social media on employers’ computers or on your own device using the employer’s Wi-Fi network, you should be aware that you may not have a strong expectation of privacy. Your privacy interests are particularly compromised if your employer has an express policy in place regarding your expectation of privacy on work devices.
Many employers scan social networks to see what their employees or job applicants are posting or to recruit new employees. A number of employers have asked employees to turn over their user names and passwords. Is this legal? It depends on your state. There are a few states that have enacted legislation to prevent employers from requesting passwords from employees, and other states have laws pending on this issue.
Some employers believe that the use of sites such as LinkedIn or Facebook will allow them to search for employees with specific qualifications and recruit them. However, the Equal Employment Opportunity Commission (EEOC) has noted that the increased use of social media may have an impact on anti-discrimination laws.
Most of these sites reveal individuals’ race, gender, approximate age, and possibly ethnicity or national origin. The EEOC has taken the position that personal information from these sites may not be used to make employment decisions on prohibited bases.
Social media can also have an impact on workplace harassment. For example, if your coworker posts sexually harassing or derogatory information about you away from the workplace, your mutual employer can be liable for a hostile work environment if it knew of the posts or if the harassing party used work equipment, such as a work laptop, to do the harassing.
Social media is also playing an increasingly strong role in litigation, including employment discrimination litigation. For example, a coworker’s Facebook postings have been used to substantiate an employee’s claim of workplace racial harassment.
The National Labor Relations Act (NLRA) is a federal law that was enacted in 1935 to protect the rights of employees and employers and to encourage collective bargaining. Enforced by the National Labor Relations Board (NLRB), the law protects the rights of employees to act together to address work conditions, whether or not they are part of a union. The protection covers work-related conversations conducted on social media.
For example, if you are part of a group of five employees that participates in Facebook postings about a coworker who plans to complain to management about the group members’ work performance, you are likely to be found to be engaging in protected concerted activity under NLRA.
An employer’s social media policies should not be so broad that they prohibit the discussion of wages or working conditions among employees. If posts or comments on posts are not work-related, they are not likely to be considered “protected activity” under NLRA. Moreover, an employee’s gripes on social media about an employer or coworker are not protected activity unless they are made in relation to group activity among employees. If you post a malicious rumor to Facebook about a supervisor having a sexually transmitted disease and a number of your Facebook friends are coworkers, this is not likely to be found protected concerted activity. It also may open you up to civil liability in a defamation or privacy suit. For example, when a BMW salesman posted photos of an embarrassing incident at a dealership near his workplace, which did not involve fellow employees, the NLRB agreed with the administrative law judge that this was not protected concerted activity.