As a result, lawyers are often asked the following question by EMS providers: “Is there any recourse available when my employees (or former employees) post negative information about my company online?” This inquiry touches on several burgeoning areas of the law, and has no simple answer. One thing is clear however; there are many legal issues and potential pitfalls to consider when treading in these developing waters.
Privacy
In some states, employees enjoy a constitutional right to privacy that extends to the workplace. As a general proposition, if an employee has a reasonable expectation of privacy in a particular communication and the employer violates that right, liability could ensue.
For example, let’s say that an employee criticizes his employer on a social media site on his own time, away from the workplace, and only to those he has selected as “friends” (which do not include any co-workers or anyone affiliated with his employer). This employee might have a reasonable expectation of privacy regarding the post given these specific facts.
If the employer learns about the post by impersonating a “friend” and hacking into the employee’s social media account and then disciplines or terminates the employee, the employer might face a privacy-based legal claim.
On the other hand, let’s say that an employee posts critical comments about her employer during the work day, while she is on the clock, using a company computer, in full sight of her co-workers, and despite a clear policy informing the employee she has no expectation of privacy in information posted using the company’s computers and/or during working hours. This employee also is “friends” with all of her co-workers, including her boss and the human resources manager.
If the employer learns about the post and disciplines the employee, a privacy violation claim would likely be unsuccessful. Moreover, in that case, the employee no doubt would be in violation of company policies relating to personal use of company computers and attending to personal business during the work day, all of which could independently justify disciplining the employee.
In between these two extreme examples are many gray areas. Thus, employers are well-advised to consult with legal counsel before taking an adverse employment action against an employee based on information learned from a social media site.
Protected concerted activity
To the extent an employee’s social media posts complain about the terms and conditions of the employee’s work, the posts could be considered an attempt to engage in “protected concerted activity”–employees acting together to try and improve their pay or job conditions. This type of conduct is protected by the National Labor Relations Act even if the employees are not unionized. This means that employers run afoul of the Act if they penalize employees for engaging in such activity.
The National Labor Relations Board (NLRB) has been closely scrutinizing prohibitions of online activity in social media policies that could be considered to prohibit protected concerted activity. For this reason, employers should have counsel draft or review their social media policies to ensure compliance with the NLRB interpretation of protected concerted activity as it applies to online activity.
Disclosure of a protected status
If an employer monitors an employee’s social media use, the employer could learn information it would be better off not knowing. For example, the employer could learn that the employee suffers from a disability that has not been voluntarily disclosed, or the employer could learn about the employee’s religion or sexual orientation. Once the employer is aware of an employee’s protected status, if the employer disciplines or terminates the employee or takes any other adverse employment action, the employee might allege the employer unlawfully discriminated against the employee because of the employee’s protected status (i.e., disability or religion).
Lawful off-duty conduct
Many states have laws prohibiting employers from terminating employees for engaging in “lawful off-duty conduct.” These laws are invoked when an employee is terminated because of the employee’s legal activities outside of the workplace.
Terminating an employee because of information posted on a social media site could violate this type of law if the post is made on the employee’s own time and is not illegal.
What’s an employer to do?
Despite these potential liability traps, there are many legitimate reasons for employers to be concerned about employees’ social media activities. For instance, employers must be able to prohibit employees from posting trade secrets or other proprietary information regarding the employer’s business. Employers also must be able to prohibit employees from harassing co-workers online. In the EMS industry, patient privacy rights and the protection of confidential patient information comes into play as well.
One important tool in navigating the balance between employees’ online rights and employers’ legitimate concerns is the institution of clear policies addressing these issues. Such policies should include a social networking policy that prohibits disclosure of trade secrets or other confidential or proprietary information, references the company’s anti-harassment policy (and specifically prohibits harassment online), and prohibits employees from using social media during working hours or on company computers or other electronic devices.
A separate policy specific to use of company electronic communication devices that allows the company to monitor use and clearly informs employees they have no expectation of privacy regarding company-owned property and regarding any information posted (even on their own devices) during work hours also is important.
An additional and often overlooked piece of advice: cross reference the company’s social media and electronic communications policies in the harassment policy so that there is no question regarding the impropriety of posting inappropriate or harassing content regarding co-workers, nor is there any question about the employer’s right to discipline and/or terminate an employee who engages in such activity.
