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If you have questions about employment law and social media, we’re happy to offer references to attorneys who specialize in these areas. If this is the case, make sure employees are aware of and consent to any monitoring that is taking place of their personal social media profiles. In the workplace, almost any consumer privacy law can be waived. In fact, it’s been interpreted that according to the NLRA, an employer may generally not take action against an employee who posts items critical of the employer’s employment practices, subject to the posts being joined in by co-employees, or if the posts are for the purpose of urging, preparing for, or carrying out concerted complaints or actions. 48, par. Under the NLRA, employees in the United States have the right to conduct union or labor-related activities on their personal social media accounts. In the United States, more than 2/3 of online adults use a social networking site. Social media can also have an impact on workplace harassment. Social media is literally booming all over the internet. In the United States, any employer monitoring of employees must comply with individual state employee privacy laws, as well as the rights of workers to engage in certain “collective activities” related to labor conditions. Employee privacy laws can be grouped into the following categories: We’ll take a look at these seven different categories and examine how each might impact your workplace social media policy. Since this information is deemed “protected”, an employer that collects or uses any of this information may run the risk of being accused of discrimination. Shutting down social media access at the office is not a cure-all to social media risks. By blocking all access to social media by employees, an employer may run the risk of violating federal labor laws. A compilation of states that have introduced or passed legislation that would restrict employers from requiring employees or job applicants to provide usernames and passwords to personal social networking accounts. Given such a huge social impact, it is also necessary to keep such a force in check. An employer also may not discriminate against an employee or applicant based on posts which indicate previous support of or involvement in union or protected concerted activities. These are just two of the circumstances that could force employers to invade employees’ privacy. See Monitoring Use of Social Media … Examples of protected concerted activities include: An employee may choose to organize, complain or protest about their workplace on social media. People often share a great deal of highly personal information on their social media profiles. Some of the laws also forbid an employer from requiring you to change your privacy settings or add a person from the company as a friend or contact. They post photos of company events, local volunteering efforts and visiting colleagues in hospital. For example, a company recruiter may look in their personal LinkedIn network for colleagues who might be a good fit for a new job posting at the company. In the United States, and for global companies, employee privacy laws significantly impact the use of social media in the workplace. Often, employers don’t have a social media policy in place at all. Privacy implications for employees Most individuals view their personal social media pages as private. While the the U.S. Supreme Court issued a decision in the landmark 1996 case Reno v. ACLU that specifically extended the First Amendment to written, visual and spoken expression posted on the Internet, this does not mean that anything said online is protected by “free speech”. As stated above, UK employment law does not directly deal with social media (particularly beyond disciplinary matters). Make sure that your company has an approach and policy for your employees’ personal use of social media in addition to work-related use. If you think that, as an employer, you can insist on access to your employees’ social media accounts so you can monitor their behavior, think again. However there are some aspects of wider UK legislation that crossover into employment law, particularly in relation employers monitoring employees. The most important federal statute that prohibits workplace discrimination is Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex and national origin. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law. In the United States, the National Labor Relations Act plays a pivotal role on the issue of employee privacy laws. Your voluntary posting of personal and intimate information waives any reasonable expectation of privacy, at least as to that information. (e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. (2) Nothing in this subsection shall limit an employer's right to: (A) promulgate and maintain lawful workplace policies . Where do employees’ rights to privacy end and the employer’s right to protect its business begin? Last updated September 2018 Also the Regulation of Investigatory Power… In the United States, various employment discrimination laws are in... #2 Free Speech and Employee Privacy. They may also use social media at work, to look up professional information about a colleague, to provide customer service or to market their business. In Michigan, the Internet Privacy Protection Act outlines an employer’s duties with regard to requesting information from an employee about their personal Internet account: INTERNET PRIVACY PROTECTION ACT (EXCERPT) What happens when a senior attorney decides to follow a junior colleague on Twitter? Currently, posted privacy policies—rather than specific federal or state laws—typically determine your privacy rights concerning the personal data that Internet-based companies collect on you. Employee Privacy Laws Related to Social Media #1 Employment Discrimination and Employee Privacy. By leaving important questions unanswered, both employee and employer are exposed to all kinds of risks. Additionally, any other restrictions related to an employee’s use of social media should be narrowly tailored to serve those specific business interests. Media is a social instrument that is powerful enough to mould a society, to develop or destruct it. The use of social media in the workplace raises privacy implications for both employees and employers. It is a force that could be put to much constructive use in the right hands. T… (a) “Personal social media account” means a social media account that is used by an employee or applicant for employment exclusively for personal purposes unrelated to any business purpose of the employer or prospective employer and that is not provided by or paid for by the employer or prospective employer. This is an outline of some of the issues that should be taken into consideration when a company thinks about employee privacy laws in the context of social media. The decision has prompted debate about American workplace privacy laws that currently grant U.S. employers the ability to monitor all communication performed on … Employee privacy laws also vary across industries. In both these cases, the boundaries between the employee’s personal and professional lives is blurred. Vermont, Texas, Missouri, and California (to apply to public employers) are considering social media privacy legislation. As a result of those conflicting needs and interests, employers can find themselves with unhappy or rogue employees, ugly, time-consuming and expensive employment disputes and even lawsuits, fines and sanctions. Employee privacy laws vary region to region, country by country. Some of the laws also forbid an employer from requiring you to change your privacy settings or add a person from the company as a friend or contact. The following examples include excerpts from California, Michigan and Oregon state laws and illustrate the differences between states’ laws. As such, employers would be wise to use caution when searching for or screening candidates on social media. There are many issues to consider including free speech, privacy, monitoring, advertising and state-specific laws. Oregon’s employment discrimination laws with respect to social media are very specific and contained within Chapter 659A — Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement: 659A.330 Employee social media account privacy. What kind and extent of monitoring do you believe should be allowed? However, before […] Problems can and do arise when employees’ social media activities are not in line with their employer’s expectations. (3) Divulge any personal social media, except as provided in subdivision (c). According to an interview by Consumer Reports, Gordon suggests that  “A string of birthday wishes might reveal an applicant’s age”. What if the employer needs to protect its company from employee theft? In the United States, the National Labor Relations Act (“NLRA”) plays a pivotal role on the issue of employee privacy laws. Like the Maryland legislation, the Bill prohibited employers from seek-ing login information for the private social media accounts of its employees. Organizations should develop policies on the appropriate use of social media in the workplace. Employers with employees in multiple states, regions or countries should ensure that any rules, regulations, guidelines, standards and policies related to social media take local employee privacy laws into consideration. The United States Supreme Court has held that the government can limit both the content of speech and the ability to engage in speech as long as the government has a “substantial justification”. The result is a complicated web of employee privacy laws that must be untangled by employers even as social media and related laws and regulations evolve rapidly. The Bill failed in committee. Most importantly, a well-written, detailed social media policy is an essential foundation in managing the risks for both employees and employers. Note: This article is not legal advice and should not be taken as such. If an employer prohibits social media use too broadly, it can be interpreted as too restrictive. Employees can and do use their personal social media profiles to vent about poor management or working conditions, difficult customers and confidential company strategies. The California Labor Code has a specific provision related to Employer Use of Social Media (Chapter 2.5 Section 980). In the United States, the first amendment to the Constitution states that the following rights belong to its citizens: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – First Amendment, U.S. Constitution. Different countries, states and regions have established various laws related to employees’ rights to personal privacy, data protection and labor-related rights. (b) An employer shall not require or request an employee or applicant for employment to do any of the following: (1) Disclose a username or password for the purpose of accessing personal social media. Equal Employment Opportunity Commission (EEOC), Sexual Orientation Discrimination in the Workplace, Transgender Discrimination in the Workplace. The concept of privacy itself can also vary in different parts of the world. As a result, many employees have made comments and posted media to these websites about their employer, their employment status, and workplace issues. For example, the Human Rights Act 1998 provides that people have the right to private and family life, a right that can be extended to include privacy in the workplace. Many businesses now regularly engage in marketing and public relations, customer service and sales, commerce and other business activities on social media. In a decision issued December 14, 2012, the NLRB found that it was unlawful for a non-profit organization to fire five employees who participated in Facebook postings about a coworker who intended to complain to management about their work performance. In the digital world, where private stuff gets jumbled … The National Labor Relations Act (NLRA) is a federal law that was enacted in 1935 to protect the rights of employees and employers and to encourage collective bargaining. Employees can use their Smartphones, social media accounts, and even personal Email to do what they need to do to get their work deliverables done on time. Employees who want to engage in these types of “protected” activity on social media are doing so under their rights as outlined in the NLRA Section 7 & 8(a)(1). Mississippi recently proposed House Bill 165. Social media can be challenging in the workplace, especially when it comes to the rights of employees. Here’s the full text of the relevant Section: (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. In general, an employer usually has a desire to both promote and protect the business. Employer access to social media usernames and passwords, National Conference of State Legislatures, 2019. However, in the United States, employers should proceed with caution on prohibiting employees’ social media use, even on employer-provided devices. In 1992, the Illinois General Assembly passed the Right to Privacy in the Workplace Act to prevent employers from requesting information about their employees' previously filed claims for … Unfortunately, it’s all fun and games until your privacy gets stolen and you’re left with problems. Employee privacy laws often include rules on monitoring employees’ use of social media. Billions of people have their own social media pages and share a wide range of information with the world. while guiding and protecting your employees and company at the same time. Increasing numbers of workers use social media on the job. Social media has become one of the most prominent forms of communication. governing the use of the employer's electronic equipment, including policies regarding Internet use, social networking site use, and electronic mail use; and (B) monitor usage of the employer's electronic Employees and employers are charting new territory as they try to balance employee rights with a company’s legitimate business interests. With this new fast becoming the norm in the workplace, employees feel that they have unlimited freedom when they use work-issued equipment, hardware, and software. How does social networking and social media relate to the workplace? on-the-job protests, picketing and strikes. (5) Nothing in this section prohibits an employer from accessing information available to the public about the employee or applicant that is accessible through an online account. Regional and country-specific laws directly affect employees’ rights to use social media in the workplace and employer’s rights to monitor those employees’ activities. For example, if your coworker posts sexually harassing or derogatory information about you away from the workplace, your mutual employer can be liable for a hostile work environment if it knew of the posts or if the harassing party used work equipment, such as a work laptop, to do the harassing. The amendments, which go into effect January 1, 2017, significantly expand the scope of the law, but in doing so, also offer clarity regarding when an employer can and cannot insist upon information in a private social media account. There are a few states that have enacted legislation to prevent employers from requesting passwords from employees, and other states have laws pending on this issue. Employees may use social media for personal activities to stay in touch with family and friends. California “employee privacy rights” refers to the rights that protect employees from employers intruding on their personal affairs and probing into their personal matters.These inalienable rights are largely guaranteed by Article 1, Section 1 of the California Constitution.They are also established via the State’s Labor Code and other … Monitoring should also be conducted using specialized social media monitoring tools, with the capability of storing, searching and retrieving information and data as needed. You can protect your privacy by being aware of, and actively using, the privacy settings of these platforms and your devices, as well as understanding your legal rights. (f) Fail or refuse to hire an applicant for employment because the applicant refused to: (B) Disclose, or provide access through, the applicant’s user name and password, password or other means of authentication that is associated with a personal social media account; (C) Add the employer to the applicant’s list of contacts associated with a social media website; or. In 1928, Supreme Court Justice Louis Brandeis observed that the right most valued by Americans was “the right to be left alone.” This is also known as the constitutional right to privacy. For example, in Brazil, individual privacy is a constitutionally guaranteed right, whereas in India, there are no specific legal or inherent constitutional rights related to internet or social media privacy. Employers that use social media to hire, recruit or screen potential job candidates or to monitor current employees must be particularly cautious about collecting any of these types of personal information from their employees. 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