This post was co-authored by Elizabeth Arce

The popularity of social media websites such as Facebook and Twitter have created new and unprecedented challenges for employers.  The New York Times reported recently that even commanders in our Armed Forces have expressed concern about troops playing with iPhones and BlackBerrys when they should be working.  Because the law has not caught up with the use of social media, navigating through issues raised by this technology can be a difficult, complicated and frustrating process for employers.  Further, as we recently reported, employment law enforcement agencies such as the National Labor Relations Board will continue to scrutinize employer social media policies.  Thus, employers can no longer afford to ignore social media.  Both employers and employees should be aware of the following 10 issues raised by this growing medium.  

1.   The Internet is a Public Place.  Employees need to be aware that everything posted on the Internet is either public or can be made public.  For example, although you may set your Facebook account privacy settings as accessible to “friends only,” there is no guarantee that a “friend” will not download the picture, show your page to a “non-friend” or disseminate the picture via email or other social media. at a recent conference addressing social media issues in law enforcement, our partner Melanie Poturica reminded the audience, “Never put in electronic form what you wouldn’t want to be received by at least one million people.”  Employees should exercise common sense and good, ethical judgment when using social media.  They should also consider the power of words and images and think about how they will be viewed by others, including current and future employers. 

2.   The First Amendment Does Not Protect All Internet Speech.  Employees generally believe everything they say on the Internet is protected under the First Amendment.  This is a common misconception.  First, the First Amendment only applies to government employers, thus, employees working for private entities are not protected by the First Amendment.  Second, the First Amendment only protects speech made by an individual acting as a citizen on matters of public concern.  Speech made by employees as part of their job duties or speech that is not about a matter of public concern is not protected.  Additionally, speech that violates the law is not protected.  For example, false or harassing speech can give rise to defamation or harassment claims.  Disclosing confidential information can lead to invasion of privacy claims.  

3.   Social Media May Be Reviewed as Part of Pre-Employment Background Checks.  A prospective employer may legally use social media if the information obtained is publicly available (i.e. not password protected) and is posted by the job applicant (e.g. on Facebook).  However, employers should never create an alias or provide false information to gain access to a website as doing so violates federal and state law.  Employers should also keep in mind that the information is unverified.  Importantly, employers must refrain from using the information for discriminatory purposes.  Employers should only consider information that relates to the applicant’s ability to perform the job, and that could have been legally elicited during an interview.  The best practice is to use a third party or designated individual to conduct the background check and to identify specific job related criteria that will be covered by the background check. 

4.   Content May Be Subject to a Public Records Act Request.  Pubic employers are subject to the Public Records Act (“Act”) in California.  The Act provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.”  The term “public records” is broadly defined to include “any writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Thus, employees must not open a social networking account using their agency issued email without agency authorization.  Any information related to the conduct of the public agency’s business communicated by a public agency or employee via a social networking site may potentially be subject to the public records act.  Although the Act exempts personnel, medical or other information that would constitute an unwarranted invasion of privacy, no court has yet examined the issue whether information communicated via social networking sites sent through agency-owned property falls within this exemption.    

5.   Separate Work Related Social Media Use from Personal.  Employers should also encourage employees to separate their work related use of social media from their personal use by using privacy settings to restrict access to personal information on private websites.  Both employers and employees should also consider whom to invite or accept into their social network.   These individuals will have access to “private” information that they can easily print, save, or forward to others.  

6.   Personal Electronic Communications May Be Subject to Monitoring.  If an employer provides employees access to its electronic communications resources, such the Internet, computers, and email, it should adopt a policy putting employees on notice that communications on those resources are agency property, are not private and are subject to monitoring.  

7.   Employee Off-Duty Social Networking Use May Give Rise to Discipline.  An employer may discipline employees for social networking conduct that undermines its mission, purpose and credibility with the public.  This can include harassment, bullying or other conduct that affects the agency.  Employees may also be disciplined for social media conduct that violates agency rules or policies or that discloses proprietary information. 

8.   Improper Use of Social Media May Lead to Liability.  Employee postings of confidential information on the Internet such as third party (other employees, personal employee and student information could open employers up to liability for violating privacy laws.  In addition, employees who post negative comments about one another on social networking sites may give rise to harassment, defamation or discrimination claims against the employer.  Finally, information obtained from social networking sites, workplace emails and Internet usage can be used as evidence against the employer. 

9.   Posting Content Anonymously Does Not Necessarily Protect One’s Identity.  Posting anonymously or under a pseudonym will not necessarily protect an author’s identity.  A person seeking the identity of an anonymous user can serve a subpoena on the user’s Internet service provider (ISP), email provider, or web hosts that ask for documents or information that will reveal the user’s identity.  Although the user can attempt to block or quash the subpoena, courts have discretion to allow the disclosure of identifying information. 

10. Social Media Policies Should Be Narrowly Tailored.  Employees have the right to discuss their wages, hours and working conditions.  Thus, social media policies should not be overly broad and must balance the employer’s needs with the right of employees to discuss working conditions.  Properly worded policies may prohibit employees from making disparaging comments unrelated to work, abusive, libelous or obscene statements, and anticompetitive, disloyal behavior.

A session will be conducted on this topic at the annual LCW Public Sector Employment Law Conference to be held March 17-18, 2011 in Newport Beach, CA.  Please click here to view the conference brochure. Additionally, the conference binder, containing all conference handouts, will be available for purchase following the conference. Please visit our website after the conference, or email us if you would like to purchase the materials in either binder or CD format.