Can Social Media Be Used Against Employees?
By guest blogger Pat Richter of
Shannon, Gracey, Ratliff & Miller, L.L.P.
prichter@shannongracey.com
Can employers use social media like Facebook and Twitter against employees?
The short answer is – yes.
The longer answer is that in Texas employers generally are free to monitor employee social media postings and other online activity. However, an employer’s use of the information obtained from monitoring is not 100% risk-free.
The most common legal issues associated with employers monitoring (and taking action based upon) their employees’ use of social media are:
• Invasion of privacy: In most states a person has a right to be free from invasion of privacy and an employer’s viewing of online activity could cross that line. However, to maintain a claim an employee or candidate would have to show that she had a reasonable expectation of privacy – something that might be hard to show given the public nature of online activity. Nonetheless, privacy is an issue that employers should consider before using an employee/candidate’s online activity in the decision-making process.
• Discrimination: An employer should be careful not to create a claim of discrimination on the basis of age, ethnicity, gender, etc. by its use of an employee/candidate’s online activity. In fact, an employer might learn information simply by browsing a candidate’s Facebook page that it would be prohibited from asking about in an interview. Combine that knowledge with an adverse action (e.g., not hiring a candidate) close in time, and you have a recipe for a potential claim.
• Protected concerted activity: The National Labor Relations Act protects all employees – even those not in unions – from retaliation by employers for engaging in protected concerted activities. “Protected concerted activity” is group activity seeking to modify working conditions.1 And the National Labor Relations Board says that includes 2 or more employees discussing pay or other work-related issues with each other.2 An employer taking action needs to be careful not to run afoul of the NLRA.
• Legal off-duty activity: Some states (Texas is not one of them) have specific statutes limiting employers’ rights to take action based on an employee’s lawful, off-duty activities. Check to see if your state has such a statute before taking action based on online activity.
The best advice for employers is to tread cautiously. You might satisfy your curiosity, only to get information about an employee/candidate that you’d rather not have. While the odds of creating liability may be slim, the useful information you get may not be worth the potential hassle.
And, for employees/candidates, the best advice is to not put anything online that you wouldn’t your employer/prospective employer to see. There might be some legal recourse available, but it would be better to keep/get the job than have a fight.
1 See nlrb.gov/workplace_rights/employee_rights.aspx (last visited 5/17/2010).
2 See nlrb.gov/workplace_rights/i_am_new_to_this_website/what_are_protected_concerted_activities.aspx (last visited 5/17/2010).