Column: The use of social media in employment practices

By Myles Bartley and Jeffrey I. Carton

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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 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 failing 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 plaintiff’s photos and postings in 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.

Myles Bartley and Jeffrey I. Carton are partners at Denlea & Carton LLP, a boutique litigation law firm in West Harrison serving clients in New York, Connecticut, New Jersey and Massachusetts. Bartley can be reached at mbartley@denleacarton.com or 914-331-0107. Carton can be reached at jcarton@denleacarton.com or 914- 331-0100.

This is the second of three articles examining legal and business issues associated with using social media in hiring, during an employee’s tenure and in termination decisions. This article was adapted from a presentation by the attorneys to the Association of Corporate Counsel.

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