Regulating Social Media in the Workplace

POSTED BY Marissa E. Buck and Jennifer E. Douglas

The proliferation of social media creates new and difficult situations for employers. Many employers wonder to what extent they can regulate their employee’s social media activities or legally take an employment action based on an employee’s off-duty conduct.

For better or worse, most of us carry smart phones with the capacity to text, email, comment, and upload photos and videos instantaneously. Platforms like Facebook, Twitter, Instagram and YouTube allow us to easily share our personal, and potentially controversial, opinions publicly. In addition, our viewpoints or activities can easily be disseminated by others. Take, for example, an employee is recorded saying something offensive outside of work and the video is published on someone else’s social media account.

Navigating these situations is not simple. While the First Amendment’s right to free speech generally does not apply to actions taken by private employers, there are other privacy laws in California that do. For example, the California Constitution, at Article I, Section 1, gives every citizen a right to privacy, and California Labor Code Section 980 prohibits employers from asking employees for their social media log-ins and passwords or asking them to access their social media accounts on demand. However, depending on the circumstances, once an employee publishes on social media, the right to privacy may be considered waived.

California law, found at Labor Code Section 96(k), protects employees’ rights to engage in lawful off-duty conduct, and provides remedies when employment is adversely affected in violation of these laws. However, off-duty conduct that harms or potentially harms the employer’s business interests or involves a crime may be a valid basis for an employment decision. Since these are tricky situations, the individual facts must be considered and an employer may want to consult with legal counsel before taking action.

We recommend employers adopt a standard policy to handle these situations. Below are some guidelines to keep in mind when adopting a social media policy.

What Employers Can Regulate
Employers can restrict an employee’s social media behavior in the following ways:

• Use of personal social media during work time or on the employer’s equipment (company computers, phones)

• Use of the employer’s name, logos, brand names, slogans or trademarks and appearing to speak on behalf of the employer

• Communications about confidential or proprietary employer information including non-public information that may be valuable to competitors, such as client lists, product information, and pricing

• Posts about co-workers, supervisors, or the employer, competitors or suppliers that are vulgar, obscene, threatening, harassing, libelous, or discriminatory based on a protected class (but be careful about regulating negative posts made in the context of discussing terms and conditions of employment protected by the National Labor Relations Act, discussed below)

• If the employee chooses to identify themselves as an employee of the employer on any social media network, you can require them to state in clear terms that the views expressed on the social media network are theirs alone and that they do not necessarily reflect the views of the company

• Unlawful conduct, even when it occurs off-duty

What Employers Can’t Regulate
Employers should not prohibit or restrict the following:

• An employee’s communications about wages, hours, or other terms and conditions of their employment as these may be protected under the National Labor Relations Act

• Disclosure of facts related to sexual harassment in the workplace, as these may be protected depending on the circumstances

• An employee’s communications about their political beliefs, political associations or affiliations, engaging or participating in politics, and/or becoming candidates for public office

Before taking any adverse action against an employee based on a social media post or other off-duty conduct, employers should consider the following:

• Does the activity negatively affect the employer’s business? How?

• Does the activity violate the employer’s social media policy?

• Is the employer enforcing the policy uniformly? For example, have other employees posted similar content or about similar topics without being disciplined?

• Can the employer legally take action, or is the activity in question protected under the law? Consult legal counsel if you have any doubts.

• How did the employer learn of the posting or conduct? Did they learn in a way that could be considered an invasion of privacy?

• How will taking action affect employee morale?

• How will the action be perceived by the employer’s customers, community and the public if it is publicized?

Taking action based on an employee’s off-duty conduct or social media activity can be challenging for employers, and there are many factors to consider. Employers should think about the legal risks involved and adopt a legally compliant policy. As always, we recommend employers work with legal counsel when handling these sensitive issues.

For questions about this or other employment matters contact DP&F’s Employment Team, Jennifer Douglas, Marissa Buck or Sarah Hirschfeld-Sussman.