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Knowing Your Rights Regarding Workplace Social Media Policies

Author Yuriy Moshes

There’s no mistake about it. Social media is a permanent fixture of not only New York City’s social fabric, but of the world’s. Everywhere you turn, everybody, young and old, are using social media to communicate, learn, entertain themselves, advertise, and express themselves. Everybody has a cellular phone now, which means everybody finds themselves turning to social media, both on and off the clock.

However, using social media at work could draw criticism from your employer. Not all posts have free reign and your employer has certain rights too when it comes to employees using social media while on the job. This article shall address social media rules for employees and social media use in the workplace.

Social Media Policy in the Workplace

When it comes to using social media in the workplace, both the employer and employees have certain rights available to them. These rights are established by both federal and New York law. Accordingly, just as the employer cannot restrict all forms of social media and what is said by the employee, at the same time, the employee does not have a free for all either and can say whatever is on the top of their mind. The employer has the right to certain internal social media policies, and the employee has the right to express themselves in a certain way too.

Employment Law Social Media Policy

Although common sense would dictate that an employee has some level of privacy in regards to emails and their usage of social media, New York does not have any specific laws in place preventing employers from accessing an employee’s social media account. Accordingly, an employee’s emails and posts may not be confidential information, particularly if your employer has an express company policy in place regarding an expectation of privacy on work devices. One of the chief reasons for this is that social media, by its very nature, is considered a very public and not private action.

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Accordingly, employers are legally permitted to peruse an employee social media account to determine the activities of their employees or job applicants, view what they are posting, or to recruit new employees.

Currently, employers in New York are even allowed to ask employees to turn over their usernames and passwords. Although New York has no laws in place preventing access to such social media accounts, legislation is currently underway, in which several bills have been proposed that would limit an employer’s ability to request an employee to release their personal password information.

In addition to privacy, social media policy in the workplace also allows the employer to limit what employees post online, though such prohibitions usually must be specific and relevant to business purposes only. From a company liability perspective, since most employees are accessing their social media accounts during the workday on a daily basis, it is imperative from the employer’s perspective that these posts be monitored, controlled, and regulated since employers can be held liable for actions their employees take within the course and scope of their employment.

If an employer makes a post on Facebook and makes a derogatory statement about somebody that is not a public figure and does so using the employer’s computer equipment, such a statement could be defamatory in nature and the employer could also be held liable.

If the employer finds such statements online, they may then terminate that employee for posting such statements in the first place.

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However, such behavior is not so open and shut, and if an employee is terminated for reasons along those lines, it is always best to consult with a social media lawyer who focuses on employment law social media policy to determine what the best course of action is and if the employer had legitimate grounds to respond the way they did.

The NLRA on Employees’ Use of Social Media

Under the federal National Labor Relations Act (NLRA), employees are permitted to organize with each other and form a union. Specifically, the NLRA provides that employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This means that if an employee makes online posts about union activity or about forming a union or collective bargaining, such speech and posts are protected, and the employer has no right to modify or stop such communication. So when it comes to the use of social media for union purposes, such corporate social media usage is protected under the NLRA.

For example, if a group of employees participate in Facebook postings about a coworker who plans to complain to management about the group members’ work performance, such social media postings would, most likely, be found to be engaging in protected concerted activity under NLRA. Accordingly, an employer’s social media policies should not be so broad that they prohibit the discussion of wages or working conditions among employees.

However, if an employee’s posts on social media fall outside that part of conduct which constitutes “concertedness and mutual aid or protection,” some employers, particularly those in the private-sector, reserve the right to regulate what their employees can post on their own personal accounts.

If a customer service employee, for example, makes social network posts that are not work-related, they are not likely to be considered “protected activity” under NLRA. This would include an employee’s rants on social media about an employer or coworker; these are not protected activities unless they are made in relation to group activity among employees. In fact, in all likelihood, the employer may then become civil liable for defamation or subject to a privacy suit.

Such legislation by the NLRA then encourages employees to be able to communicate with each other about organizing and forming a union.

Anti-Discrimination Laws

Although employers have the right to search online and inspect and review their employees as well as potential job applicants posts, thereby giving the employers the right to determine which employee’s social media posts are grounds for termination and which job applicant’s posts would be an aggravating factor in not hiring that person, according to both federal and New York State laws, particularly New York State Human Rights Law signed into law on 08/12/19, which states that such online posts cannot be used as a means to fire or not hire an employee on the basis of their race, gender, age, or disability. Furthermore, companies may be found in violation of such discrimination laws if they are found to penalize certain employees who participate in the same behavior, but not other groups of employees.

social media policy in the workplace

It is worth noting that the Equal Employment Opportunity Commission, (EEOC) has specifically noted that the increase usage of social media has provided employers the tools to discriminate and that with increasing popularity, the usage will have a direct impact on anti-discrimination laws. Since most social media websites display an individual’s race, gender, age, ethnicity, or national origin, it is a violation of the EEOC if an employer uses this personal information from these sites to make employment decisions.

Accordingly, due to the highly suspicious nature of such allegations, it is very important to consult with an experienced employment law attorney to analyze the facts and to determine how strong a case one has regarding that employee’s social media policy in the workplace.

Employees Social Media Rights

Just as the employer has certain rights when it comes to their social media policies, the employee also has certain rights too. First off, the 1st amendment does not automatically protect any form or expression of speech because it only prevents the federal or state government from interfering; it does not protect the private sector, which consists of most employers. New York, like most states, is an employee at-will state, which means that unless such posts are a form of speech that is legally protected, the employer can terminate that person for a good reason, bad reason, or no reason at all. So if any of these online statements are made while on the clock, the employer can terminate that person without any repercussion.

However, New York does prohibit employers from taking adverse employment actions against employees based on lawful off-duty conduct who use social channels. New York provides social media guidelines which prohibits employers from firing or retaliating against employees for any off-duty lawful activity, including speech, in which both the employer and co-workers may find offensive. However, online speech that attacks protected characteristics protected by law, such as age, race, sex, religion, etc., constitutes workplace harassment and would not necessarily be protected under New York law.

Due to the factual nature of social media complaints, it is important to discuss your case with a social media lawyer who is familiar with employees social media rights.

Legal Implications of Social Media

In addition to social media rights for both employees and the employer, it is also important to understand the legal implications that social media possesses and its role.

Social Media and Termination of Employment

Since employers are legally able to peruse social media posts and seek out which posts are actionable for termination, for the employee, it is very important to be conscious of that fact and that anything they may post, unless it is protected under the NLRA or is protected under federal and New York anti-discrimination laws, may be looked at by your employer and is then fair gain as a basis for termination.

Since New York is an employee at-will state, in which the employer can terminate the employee for virtually any reason, any post that the employer may find offensive, could be grounds for termination. This may include a post in which the employee posted a picture of themselves engaged in a night out drinking with their friends. It may include a post of the employee at a Cos-Play convention in which they are dressed up as a superhero. Or it may include a post as ridiculous or as common as the employee at a buffet about to indulge themselves in eating a bunch of lobsters. The post can be very offensive or not offensive at all, and the employer would be in their right to terminate the employee.

That does not mean, however, that such termination would disqualify the employee for qualifying for New York state unemployment benefits. It does mean, however, that such posts, no matter how innocent, offensive, or just plain ordinary, could act as fodder for the employer to learn more about you and then terminate you.

The lesson to be learned here is not to live in fear and not to post anything online, but just be conscious that what is posted may end up being viewed by your employer, which may then result in your social media and termination of employment.

Social Media as Evidence

Along those lines, if termination or retaliation is made upon the employee by the employer, social media is the first base that employment lawyers run toward to try to dig up evidence of what happened. Any and all posts may be subject to being used as evidence as the basis of an illegal discrimination on behalf of the employer or a legal basis for a termination. This is why many attorneys will turn to Facebook, Twitter, and Instagram to try to come up with evidence.

However, even though you would think that such social media posts are permanent, if not properly preserved and authenticated, the social media evidence may not be legally admitted in court and would therefore be inadmissible. Under U.S. Federal Rule of Evidence 901(a), the person offering such exhibits into evidence must offer “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Accordingly, unless there is evidence of uncontroverted and cooperative witness testimony, there will have to be other means to establish a proper foundation. In fact, courts routinely rule that a page printed from a website or online is insufficient to authenticate social media evidence.

In response, software tools have been designed to specifically collect, preserve, and analyze social media in order to address evidentiary authentication requirements. Such tools establish a social media strategy defensible chain of custody and provide the authentication required to establish proper foundation that the courts require.

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Since there can be drastic legal implications of social media, it is important to discuss your specific case with a social media lawyer.

Court Cases Involving Social Media in the Workplace

Social media in the workplace is all around us. Below are some real life examples of court cases involving social media in the workplace.

In NLRB v. Pier Sixty, LLC, the employee was terminated by his employee, Pier Sixty, a catering company in New York, after he made the following post on Facebook about this supervisor:

“Bob is such a NASTY [expletive] don’t know how to talk to people!! [Expletive] his mother and his entire [expletive] family!!! What a LOSER!!! Vote YES for the UNION.

Although the post was deleted 3 days later, the employer then terminated the employee. The employee filed a charge with the NLRB alleging that he had been terminated in retaliation for “protected concerted activities.” The Administrative Law Judge found that Pier Sixty violated the NLRA due to the fact that the post dealt with union organizing activities.

In Jones v. Gulf Coast Health Care of Delaware, the employee had asked his employer to come back to work light duty, but the employer required a fitness-for-duty certification prior to his return and required the employee to take an additional one-month non-Family Medical Leave Act (FMLA) leave. The employee then went on vacation for a month and posted pictures of his vacation. When he returned, the employer terminated for arguing that the employee was well enough to return to work from the very beginning. The employee filed suit against his employer alleging that his termination was in retaliation for taking the additional one-month leave. The employer argued that the employee’s Facebook posts violated its social media policy, which stated that employees may be terminated if their social media posts have an adverse effect on co-workers. The court sided against the employer, and said that the employer never mentioned the policy when it terminated the employee and that the posts were entirely unrelated to the purpose of the policy. The court held that the employee could proceed with his case.

Like all court cases, each case is dependent upon the individual facts that make up each case. It is important to discuss your case with an employment law attorney to analyze your facts.

FAQ

Q: Can an Employer be Held Liable for Email Harassment?

Yes, an employer can be held liable. For example, suppose your coworker posts sexually harassing or derogatory information about you away from the workplace. If this happens, your 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.

Q: Can My Employer Require Me to Post on Social Media?

The newly amended Right to Privacy in the Workplace Act makes it illegal for companies to ask or require employees to use personal social media profiles to join their employer’s online accounts. Rulings by the National Labor Relations Board state employers cannot restrict what employees post on their own accounts.

Q: Is Social Media Harassment Illegal?

Yes. In New York, you can be charged with harassment for engaging in a course of conduct or committing acts that place a person in reasonable fear of physical injury. Social media is a medium that can be used to commit this act.

Q: What Should Be in a Social Media Policy?

Enforcement. Social media policies must be enforced in order to effectively justify its corporate code of conduct. This requires effective monitoring and evidence collection capabilities, the absence of which renders such policies empty and unenforceable then. If the policy is not enforced, that is evidence that it is not a valid company social media policy.

Q: What Are 3 Risks of Social Media?

● Lack of Privacy by Employer
● Posts are not protected by 1st Amendment if working in Private Sector
● Posts are permanent and may be used as future evidence

What Can a Social Media Lawyer Do for Me?

Social media is a beast that is here to stay and is not going anywhere. It has not only affected our daily lives, but also our lives in the workplace. If you are an employee and have been terminated due to social media, you need to talk with a qualified social media lawyer from the Law Office of Yuriy Moshes, who can provide you assistance and knowledge about social media rules for employees, social media use in the workplace, and who most of all practices employee advocacy.

Law Office of Yuriy Moshes

Their offices help employees in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.

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