Employer Monitoring of Employees’ Social Networking Activities
by Stephen M. Darden, Esq. and Joseph B. Harvey, Esq.
March 2010 (published in the Johnson City Business Journal)
In 2008, a Burger King employee filmed a co-worker taking a bath in a dish sink at the restaurant. The video was promptly posted on MySpace and viewed by untold thousands of MySpace users. One of those viewers forwarded the video to the local health department. Needless to say, the health department was not amused and neither was Burger King’s corporate headquarters. Burger King issued a statement saying: “We have sanitized the sink and have disposed of all other kitchen tools and utensils that were used during the incident. We have also taken appropriate corrective action on the employees that were involved in this video. Additionally, the remaining staff at this restaurant is being retrained in health and sanitation procedures.” Even though the company took prompt action to remedy the situation, the incident was a public relations debacle.
This incident at Burger King, while unusual and very upsetting, is not the only one of its kind. There are numerous examples of employees “blogging” about work and their employers. The use of social media sites such as Facebook, MySpace, YouTube and others has exploded. Not only has the number of people using social networking sites increased significantly in the past few years, the amount of time people of all ages spend on social media has increased exponentially.
Employees often bring their use of social networking into the work place. In fact, some employers use social networking sites to their benefit as a vehicle to market their brand to a wide audience without significant cost. Social networking sites are also an effective tool in creating and maintaining relationships with customers. However, social media can be a double edged sword. These technologies pose significant dangers and risk to an employer’s interests, including disclosure of trade secrets and internal procedures, off-duty harassment, and posts of unflattering incidents like the Burger King example, not to mention the lost time and productivity that results from employees who spend too much time on these sites.
What can and should employers do to monitor employees’ use of social media and how can and should employers respond to problems when they occur? As is the case with many employment-related issues, the key to avoiding problems is to be proactive and to manage employee expectations: have a policy that is known by employees.
Employers have no legal duty to monitor employees’ off-duty activities, including what employees post on social media sites. However, off-duty employee misconduct, including misuse of social media, may be legitimate grounds for discipline or discharge. Given the “at will” status of most employees, it is perfectly lawful to discipline or discharge an employee based on conduct or statements made in public on a social media website.
Some companies require employees to sign broad waivers allowing the company to access social media sites as a part of the hiring process. This practice carries some risk because employees or juries may see this as overreaching. Additionally an employer may be creating the potential for liability where none exists. For example, an employer may learn about things they do not want to know such as an employees’ religious beliefs, disability, or genetic information the employer is either prohibited from gathering or prohibited from using in making employment decisions.
For these reasons, many employers do not choose to monitor employees’ off-duty activities such as social networking until a problem has been brought to their attention. When problems arise, there are three things that will help keep an employer out of hot legal water. The first is to have clear policies that prohibit harassment of co-workers, regardless of where such behavior occurs. The second is a policy that notifies the employee that computer equipment is company property and may be accessed and monitored by the company at its discretion. Third, a policy should clearly explain that employees have no expectation of privacy with respect to company computers or in other settings, at or away from work. These policies work on two levels. They both set up defenses for the employer and provide a deterrent effect. Employees who know that their conduct could be monitored may not engage in conduct that would lead to discipline in the first place.
Additionally it is important for employers to ensure that their response to a reported incident is proportionate to the allegations involved. For example, in one case an employer mounted hidden web cameras in two employees’ office without their knowledge to determine who was accessing pornographic material on the computers after hours. The court denied the employer’s motion to dismiss the case. The court noted there were far less intrusive means for the employer to determine who was using the computer after hours. For example, the employer could have password-protected the computers to prevent access, or could have notified other employees (who were not suspected to be involved) that the camera had been installed.
Another issue that often comes up in this context is employees’ right of privacy. Obviously, employees should have no expectation of privacy with respect to publicly accessible websites. In contrast, however, some courts have found that employees do have an expectation of privacy in password-protected or other sites where access is restricted. Employers should obtain the employee’s consent before accessing such sites, or, again, make it clear by policy that such sites are fair fame for employer scrutiny.
This is a rapidly changing area of the law. New technology inevitably raises new issues that employers must address and manage in the modern electronic workplace.
Steve Darden and Joe Harvey practice labor and employment law with Hunter, Smith & Davis, LLP. Certification as a labor and employment law specialist is not currently available in Tennessee.