Social Media’s Use In Employment Practices - Part II

Part II:
          The use of social
media in employment practices

Social media has a major impact on a myriad of issues for a
company’s workforce. Issues include longstanding social media topics –
monitoring an employee’s personal email use, for example – to newer social
media subjects – such as, does a company have a duty to monitor its employees’
off-duty use of social media? This article looks at four of those issues.

          Monitoring employee
email and text messages

An employee’s email may be monitored if it is done pursuant
to a clear, written policy that communicates that the employee has no
reasonable expectation of privacy. In contrast, a company may not monitor an
employee’s email if its policy is vague and the employee took significant steps
to ensure his or her communications were confidential.

For example, a doctor’s emails to his lawyer via his work
computer were neither confidential nor privileged where the hospital
specifically informed all employees that personal use of email was prohibited.  In contrast, where a company failed to
disclose to its employees that the company captured all internet use on company
computers, including an employee’s access to her Yahoo mail, the employee’s
emails were confidential.

While employers have long been comfortable with the need to
preserve email, the sanctions for falling to do so and its relevance to
employment-related disputes, many employers are less familiar with the fact
that text messages, an increasingly common form of business communication, are
subject to the same rules. Courts have routinely found that employers can monitor
text messages and have imposed a duty upon companies to preserve them where
they contain relevant information.

          Limiting employee use
of social media

Whether a company may limit its employees’ use of social
media and whether such restrictions implicate the National Labor Relations Act is
a fact-specific inquiry. The Act permits employees to organize and engage in
“concerted activities” for the purpose of bargaining, aid or protection
and it prohibits employers from interfering with those rights. Banning
employees completely from blogging or texting about the company, or social
media policies which contain overly broad “non-disparagement”
provisions, may violate the Act if those actions discourage or interfere with
the employee’s rights under the Act.

          Duty to monitor
employees’ use of social media

A company does not have an affirmative duty to monitor its
employees’ use of social media, absent a reason to do so. But if the company is
aware that its employee is engaging in harassing, discriminating or retaliatory
activities through social media, then a company has a duty to take remedial
action.

Thus, for instance, a company cannot ignore its employees’
use of an electronic bulletin board or forum in which a co-worker is being
harassed. Once a company is placed on notice of the improper conduct, the
company has a duty to take appropriate action.

          Discoverability of
social media in New York litigation

Social media may be discoverable in New York where it is
potentially relevant to the issues being litigated and likely to lead to the
discovery of admissible evidence. Courts will not permit discovery, however, if
the request is overly broad or amounts to a fishing expedition.

For example, in a personal injury case, the mere speculation
that the plaintiff’s photos and postings on Facebook might contradict
plaintiff’s positions was rejected as a “fishing expedition.” In contrast,
social media information that may undercut a plaintiff’s injury claims may be
discoverable, if properly limited in subject matter and time.

Employees’ social media use raises several considerations.

First, employers should have a clear policy concerning an
employee’s use of company computers, phones, email, as well as an employee’s
use of non company email like Gmail and Yahoo from company computers so that an
employee has a reasonable expectation as to what is and is not private.

Second, the policy should not infringe on an employee’s
protected activity, such as collective action, and should not be so broad as to
prohibit all employee social media activity.

Third, an employer may not avoid liability for an employee’s
improper activity on social media where that activity impacts the employer’s
other employees. If the employer is on notice of the improper activity, the employer
should take appropriate remedial action.

Fourth and finally, a party seeking discovery of social
media in New York will need a factual predicate – for example, a social media
posting demonstrates a contradiction or inconsistency with a litigation
position – to obtain the discovery of social media communications.