SOCIAL MEDIA AND THE EMPLOYER/EMPLOYEE RELATIONSHIP: TRAPS FOR THE UNWARY
Social media is now a ubiquitous part of our lives. People freely provide information on social media accounts for all to see. Employers, however, must be especially cautious when using social media in employment decisions.
The overwhelming majority of employees in today’s workplace are known as “at-will” employees. An “at-will” employee in California is someone whose length of employment is not for a specified period and is not subject to a written contractual agreement. The arrangement benefits both the employer and employee: the employer can fire the employee for any lawful reason, and the employee can quit for no reason at all. However, there are limitations when it comes to an employer’s rights to terminate an employee, especially when posting on social media.
Social Media and the Employee
The California Legislature enacted a law to protect an employee who uses social media as a means of communication. California Labor Code Section 980 protects employees from an employer’s intrusions’ into their social media accounts. Social media, as defined by Section 980, includes a lengthy list of electronic communications. Interestingly, text messages and email are included in this sweeping definition. An employer is prohibited from requesting or demanding, as a condition of employment, passwords or access to employees’ social media accounts. Furthermore, the law prohibits an employer from terminating an employee or applicant for refusing to comply with a demand that violates this Section. The law does not, however, state what the potential damages and/or appropriate relief may be for an aggrieved person.
The statute does provide an employer with some, albeit, limited protection. An employer may request access to an employee’s social media accounts if it is “reasonably believed to be relevant to an investigation into employee misconduct or a violation of a law or a regulation…” or “for the purpose of accessing an employer-issued electronic device.” Furthermore, an employer is prohibited from expanding the scope of their review to any information beyond the limited intrusion the law allows.
Social Media and Federal Law
The National Labor Relations Board (“NLRB”) is the federal agency created by Congress to enforce the National Labor Relations Act (“NLRA”). The NLRB released memoranda from its General Counsel in 2011 and 2012 which summarized recent findings from litigation relating to discharging employees because of social media posts. In the majority of cases reviewed by the General Counsel, the employer was found liable for unlawful discharge of the at-will employee based upon work-related social media posts because the employers’ practices and policies had a “chilling effect” on employees’ rights to communicate in an effort to improve working conditions.
However, not every case has been decided in favor of the employee. An employer successfully defended its decision to fire an employee who posted pictures on Facebook relating to an embarrassing event that occurred in a competitor’s business. The decision was upheld because the social media post was not concerted employee activity protected by the NLRA.
Employers Who Have Questions Must Seek Help Immediately
Social media and employment decisions are an exceedingly difficult area to navigate. The conscientious employer will contact an experienced employment attorney to draft an employment policy and/or to advise them in making employment decisions relating to social media that complies with both state and federal laws and regulations.