Article of the Week
“Legal Land Mines of Social Media in Employment Issues” by Jessica A. Braverman
With resources limited at the work place, employers continue to struggle with all the legal ramifications of social media. Whether it concerns an employee who decides to view pornography during his lunch hour, or a supervisor who posts specific names and details on the LinkedIn legal section searching for help with her direct reports, employers walk a fine line between enforcement and privacy infringement on all social media issues. The lines once fairly drawn, today appear more blurry, yet the employer must always beware.
PRIVACY DICTATES IN CALIFORNIA
Under Article I, Section I of the California Constitution, all employees have an express right to privacy at the workplace. This means the employer must advise the employees in writing that the right to privacy may be restricted and monitored by the employer (and there are exceptions to the exceptions) if the employer wishes to view the employee's company email or monitor the employee's company telephone calls. Case law has narrowly drawn the time, place and manner (requirements) when an employer can set up hidden cameras or surveillance at the workplace. Private sector employees must be notified in advance of the employer's right to view and intrude (with some exceptions) and public sector employees are still afforded 4th amendment protections along with the right to privacy.
Thus, the employer must almost anticipate all of the ways employees misbehave in order to provide them of notice of how the employer may monitor and supervise the employee's activities. When the employer does not monitor and supervise, there are California cases that suggest in dicta that the employer may be liable for negligent supervision. With text messaging, instant messaging, tweeting, posting and cell phone cameras, employees have a lot more ways to get into trouble and cause third-party issues. Accessing the internet is only one of the many nightmares employers have to contend with along with all of the information sharing that goes on today via text messages on the cell phone, iPhone, smart phone, etc. With cameras and recording devices on the employee's personal cell phones, employees can be posting photographs, revealing proprietary information and sharing live conversations at work without easy detection.
We have not even addressed the em¬¬ployee who works from home on either company-issued equipment or on his/ her own personal equipment. Can the employer monitor such employee during "work hours" on their phone calls and computer work? Case law suggests that the employer has very limited access and rights to view the home-based employee owned and controlled equipment, but it appears liability may still be imposed on the employer in certain circumstances.
Balancing the employee's right to privacy with the employer's right and duty to know what the employees are doing during work-related activities is delicate and can definitely become a legal land mine for the unaware.
NOTICE AND MONITORING
Are employers on perpetual notice that at any moment an employee might be posting an offensive or discriminatory remark about a co-worker, a supervisor or, worse yet, a customer on Facebook or Twitter?
Case law on this subject is divided, but the prevailing view so far seems to be that the employer may be on notice if the employer becomes aware that employees are communicating with each other via social media during working hours and even after working hours. It does not appear (yet) that employers must be monitoring all possible social media to detect any inappropriate postings by employees. But if the employer does become aware (i.e. the offended employee makes a complaint to a supervisor or to human resources that a co-employee posted something discriminatory or offensive), the employer must treat social media like any other investigation into allegations.
Employees should be made aware that consequences will result if evidence comes forward that he/she posted something that is likely to trigger a claim or a lawsuit. Again due process rules apply, so employers must investigate these claims just as non-social media allegations.
Defamation. Employers can be held liable for defamatory statements made by supervisors, managers and other employees that are made "in the course and scope of their employment."
Defamation can take place on the employee's cell phone during work hours via text messages or from the employee's own home phone while away from work. The blurry line is that, generally, if the defamatory statements are taking place at the job site and/or from company issued equipment, liability is easier to impose on the employer; but if the defamation takes place from the employee's home or the employee's own computer/equipment, liability is going to be harder to impose on the employer, yet the employer may still have a duty to take action depending on the circumstances.
Gathering the evidence may be more difficult (and more costly) for the employer if the defamation takes place off work premises and with the employee's own equipment (obtaining third-party records from cell phone providers for example).
Harassment. Social media has enabled unlawful harassment issues to come up at the work place in a myriad of ways. Consider posted remarks about one's race, religion, sexual orientation and marital status — not to mention dating and flirting via Facebook and other social media gathering sites. Sexual harassment, unwarranted advances, and innuendo are on the rise via social media. Often written policies and procedures do not cover every type of social media issue that can arise.
Think about how stray remark issues could play out on social media sites. Stray remark cases are still divided in California. Posting that someone is an old fuddy duddy, for example, may or may not be used as evidence in an age discrimination or age harassment case, but employers must be aware of how social media interfaces with such allegations.
Again, employers must plan ahead and should consider policies and possible advance signing "consent" forms from employees to be able to obtain the supporting evidence/documentation for alle-gations that may come forward. Perhaps even a waiver of privacy on private equipment if the allegations are made by an employee, supervisor or customer that harassment has been viewed on a social media site. How far the employer must go to avoid liability in this area has not yet been fully outlined or determined in the California courts. Privacy issues still appear to weigh more heavily and notice requirements in advance by the employer still scrutinized and evaluated. (Consider the recent United States Supreme Court ruling in Quan v. Arch Wireless.1)
Communication to / from employees with social media. There is a new trend of employees communicating with human resources and management via texting, instant messaging and email. Employers must beware that allowing employees to communicate via social media does raise the issue about whether social media communication is accepted by the employer regarding leave of absence issues, worker compensation issues, and termination.
Consider, for example, the employee who takes pregnancy leave and communicates to her employer via text message that she is ready to return to work. The employer, not expecting communication to take place from this employee via text message, does not check the text messages timely and thus the employee considers the lack of employer response as bad faith. She then deems the lack of communication as a termination or a failure by the employer to reasonably accommodate her pregnancy return, if accommodation was requested.
Other trends seen are employees who quit via text message, or post their constructive discharge notice to the employer on an instant message to the manager. Employees use social media to communicate directly with their manager and with human resources. This creates a number of potential legal land mines if the employer enables this type of communication method on a regular and consistent basis.
Employers should consider bolstering their employee handbook to write clear communication expectations (i.e. all human resource communications must be done via fax or regular / express mail options only).
There is no erase or shred on social media. Because there is no erase or shred button on social media sites (and no attorney client privilege), both employers and employees must be on heightened awareness that evidence is preserved for a long time and thus it might be best if work related issues are avoided on social media entirely. Employees should be reminded about their duties and responsibilities and notified that breaches of any kind will trigger consequences. Further, employers should say explicitly that monitoring will take place and employee privacy rights curtailed as it pertains to the employer's legal duty to protect against unlawful harassment, discrimination, defamation and other legalities — which include social media issues both within and outside the workplace.
Legal land mines in social media are present everywhere, but the balance of privacy versus liability imposes greater awareness and advance preparation on the employer to avoid legal problems. This area of law continues to evolve; so all readers need to stay updated.
Jessica A. Braverman, Esq. owns the California Employment Law Training Center, a division of Braverman Mediation and Consulting where the focus is on preventative employment law advice, earlier dispute resolution intervention and employment law training.
1Ontario v. Quon (US Supreme Court) originally cited as Quan (sic) v. Arch Wireless via the 9th Circuit Ct. of Appeals.