The Evolution of Social Networking Technologies in the Workplace: Balancing Employee and Employer Rights
In the past few years, there has been an explosion in the use of social networking technologies. While these technologies represent tremendous opportunities for employers, they also contain the potential for various legal pitfalls. It is important for employers and their counsel to understand the benefits of social media, such as using it for recruiting; the disadvantages, such as lost productivity; as well as the legal issues that can arise when using social media. The following sections will provide: (1) an overview of the most popular social networking sites and technologies; (2) a look at their use in the workplace; (3) a discussion of the potential legal issues employers face when utilizing these tools; (4) a look at recent cases before the U.S. Supreme Court and the NLRB; and (5) suggestions for implementation of an appropriate social networking policy.
I. Commonly used social networking technologies
Facebook (www.facebook.com) is a social networking website where users can add friends, send messages, and update their profiles to notify others about themselves. Users have the ability to join networks organized by city, workplace, school, and region, as well as groups for common interests. This social networking website was initially launched in 2004 by Harvard undergraduates and it quickly spread worldwide. Facebook currently has over 300 million active users. Notably, the trend is no longer unique to the younger generation as the 35-49 year old age group has recently experienced the largest growth.1
Myspace (www.myspace.com) is one of the world’s largest social networks with over 125 million users. Myspace is considered the music network, connecting millions of bands with millions of music lovers. Along with music, Myspace is similar to Facebook where users can add friends, send them messages, and comment on their profiles. Users can customize their profiles, add music, and there are even several independent websites offering Myspace customized layout designs for profiles.2
Twitter (www.twitter.com) is a social networking service that enables its users to send and read messages known as “tweets.” Tweets are posts of up to 140 characters displayed on the author’s profile page and delivered to subscribers who are known as “followers.” Launched in 2006, Twitter asks one question: “What are you doing?” This service is recognized by celebrities and corporations for its self-promotion. Twitter grew 1,382% between February 2008 and February 2009. A February 2009 compete.com blog entry ranked Twitter as the third most used social network based on their count of 6 million monthly visitors.3
LinkedIn (www.linkedin.com) is a social networking website focused on professional networking. This website allows registered users to maintain a list of contact details of people they know and trust in business. The people in the list are called “connections” and users can invite anyone to become a connection. Launched in 2004, LinkedIn currently has over 50 million members in over 200 countries worldwide.4 These connections can help members find jobs, list jobs, and search for potential candidates.5
Meettheboss (www.meettheboss.com) is a business networking tool for business executives around the world. Members of Meettheboss have individual profiles with listed business interests. This site features weekly interviews with industry leaders heading large global companies. Discussion groups are set up with Question and Answer sessions to provide opportunities for users to make contacts and gain insight from industry leaders.6
Plaxo (www.plaxo.com) is another social networking service and online address book that provides automatic updating of contact information. Users store their information on the servers and when this information is edited by a user, the changes appear in the address books of all those listed as a contact. In 2008, Plaxo reported 20 million users.7
Chamber (www.chamber.com) is a business networking site connecting 2000+ local business communities worldwide. According to the site, it is an online chamber of commerce “on steroids.” It allows members the ability to (1) market products and services; (2) network quickly and easily in local chambers and around the world; and (3) access specialty webinars.
Employers and their counsel must be familiar with these social networking websites and especially their prevalence. According to a Nielson Report, time spent on these social networking sites accounted for one in every eleven minutes spent on the internet around the world in 2008.8 Additionally, 35% of hiring managers “google” applicants, while 23% check social networking sites and approximately 1/3 of these searches results in a job rejection.9 Moreover, 79% of employees use social networking at work for “business reasons.”10
Texting is the exchange of brief written messages (140 characters or less) between mobile and portable devices (iPhones; Blackberries; pagers; etc.).
Blogs are a type of interactive website, usually maintained by an individual with regular entries of commentary, description of events, or other material such as graphics or video. A typical blog combines text, images, and links to other blogs, as well as links to other websites and other media related to this topic. Blogs also typically provide their readers the ability to post comments for an interactive dialogue.11
II. Social networking technologies in the workplace
Social networking sites are great resources for employers for marketing and advertising purposes. Additionally, social networking sites provide a good resource for recruiting. As many as 47% of employers state that they use social networking sites to look at candidate profiles. Indeed, social networking sites can provide insight into whether a candidate will fit with the company culture. A list of justifications for screening applicants through these tools is extensive and the number of employers who are taking advantage of it continues to grow. Even the Obama administration required candidates seeking positions in the administration to disclose any potentially damaging or embarrassing emails, blogs, and text messages they had produced, as well as provide a link to their social networking sites so that they could be inspected.12
A story reported on MSNBC.com provides a real world example of social networking as a tool in recruitment. The story concerned a corporate recruiter charged with hiring physicians. The recruiter would log into Facebook to view a candidate. In one particular incident, the recruiter found pictures of a candidate taking hers shirt off at parties, and called the candidate to request an explanation. He was unimpressed and did not offer her the position, stating “[H]ospitals want doctors with great skills to provide great services to communities. They also don’t want patients to say to each other, ‘Heard about Dr. Jones? You’ve got to see those pictures.’”13
Employers have also found social networking technologies useful during litigation and in conducting investigations. In addition, there are sometimes advantages to allowing employees to use social networking technologies in the workplace – some employers even encourage it. Business justifications for allowing on-the-clock use of social networking include (1) strengthening of professional relationships; (2) promoting the company; and (3) allowing employees to share information with each other.
Along with the benefits, there are disadvantages in using social networking websites in the workplace. One disadvantage for employers is in the form of lost productivity resulting from the time employees spend on these sites.
- 79% of employees admit to using social media at work for “business reasons”
- 82% of employees admit to using such media during work time for “personal reasons”
Various groups have conducted surveys to inquire as to employee opinions on the use of social networking technologies in the workplace:
- 74% of employees say it is easy to damage a company’s reputation via social media
- 24% of employees say they do not know if their employer even has a formal policy regarding social networking
- 15% of employees admit that they would comment about their employer online if they disagreed with something the employer did
- 27% of employees say they do not consider the ethical consequences of posting online
- 37% of employees say they rarely or never consider what their boss or colleagues would think, and 34% say they rarely or never consider what their clients would think
Of course, employers have disciplined and discharged employees based on their use of social media. In March 2009, the Philadelphia Eagles fired an employee for criticizing the Eagles on his Facebook page. Dan Leone, a gate worker at the team’s stadium, posted an angry, expletive-laced complaint about the team’s failure to re-sign safety Brian Dawkins. Management found out and fired him for making the team look bad.
III. Legal issues
There are, of course, a number of legal issues that arise with the use of social media in the workplace. Significantly, employers and their counsel must be cognizant of privacy, confidentiality, and privilege concerns.
One issue that arises with using social networking websites to pre-screen candidates is the possibility of discrimination claims. By screening an applicant's Facebook or Myspace page, for instance, an employer may become aware of a candidate's race, religion, gender, sexual preference, age, nationality, marital status, and/or disability. Through these searches, employers may become aware of information which they would not have otherwise known - or be legally entitled to know - through a simple interview. The issue then becomes proving that this information was not the basis for the employer's decision not to hire a candidate.14 Employers can take actions to protect themselves from these types of discrimination claims, however. First, they should have in place a policy regarding the use of social networking in conducting background checks. Second, they should consistently apply the policy. Third, they should limit such screenings to a few well-trained individuals and have non-decision makers search and filter information.
Another issue that arises with social networking in the workplace is privacy. Employers must be cognizant of invading employees' privacy through monitoring the use of these sites. Employees have a privacy interest in the content of information if the employee has taken reasonable efforts to keep the information private and the employee derives economic, personal, emotional, or other value in keeping the information private. An employer infringes upon this employee privacy if the employee's interest in keeping the information private from the employer outweighs the employer's interest in obtaining the information and the employer nevertheless requires that the employee provide the information to the employer.15
To have a privacy interest in the information, an employee must take reasonable efforts to keep the information private. If an employee has not restricted access to the information, then the employee arguably did not take reasonable steps to keep the information private from the employer. An example is if an employee has a web page that is accessible and open to internet users where the employee posts personal pictures and information on the web page. The employee has not taken reasonable steps to keep the information private. In contrast, if an employee has a personal web page that is accessible only to those who enter a proper username and a password, and the employee only provides passwords to her friends and family, then the employee has taken reasonable steps to keep the information private. Therefore, in the second example, the employee has a privacy interest in the information on her web page.16
Along with common law privacy, the Stored Communications Act ("SCA") also comes into play for employees' use of social networking sites. The SCA is a federal statute that prohibits third parties from accessing electronically stored communications (e.g., e-mail or Facebook entries) without proper authorization.17 Pursuant to the SCA, an offense is committed by anyone who: "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;" or "(2) intentionally exceeds an authorization to access that facility; and thereby obtains . . . [an] electronic communication while it is in electronic storage in such system."18 "Electronic storage" is defined in an earlier part of the Wiretap Act as: "(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication."19 The SCA aims to prevent hackers from obtaining, altering, or destroying stored electronic communications.20
Konop v. Hawaiian Airlines, Inc. provides an example of the applicability of this statute on this issue. Konop, a case from the United States Court of Appeals for the Ninth Circuit, concerned the denial of summary judgment to an employer on the employee's SCA claim.21 In Konop, an airline pilot sued his employer, alleging that the airline viewed the pilot's secured website in violation of the SCA. The pilot maintained a website, in which he criticized the airline, the airline's officers, and the union. Airline employees were eligible to access the site by logging in with a username and password created by the individual employees. Management employees were expressly excluded and were not eligible to create usernames or access the site.22
The vice president of the airline was concerned that the pilot was making untruthful allegations on the website. The vice president asked an eligible employee to assist him with accessing the website. The vice president was upset by the pilot's accusations on the website and contacted the union regarding the website.23 Regarding the pilot's SCA claim, the Court found that there was an issue of fact as to whether the eligible employee was a "user" of the website -- in other words, whether the eligible employee has the power to "authorize" the vice president, a third party, to access the website. If the vice president is authorized to access the website, then the employer would be exempt from liability under the SCA.24
In addition to the SCA, employers also need to recognize potential issues under the National Labor Relations Act ("NLRA").25 An employer monitoring employees' social networking sites may have a chilling effect on employees’ communications regarding the terms and conditions of their employment. In Endicott Interconnect Technologies, Inc., the National Labor Relations Board ("NLRB") found that the company had violated Section 8(a)(1) of the NLRA. In Endicott, the NLRB found an employee's posting on a public-forum website -- in favor of union representation at the company, and criticism of recent management of the company -- was protected conduct under the NLRA. The company was found to have violated 8(a)(1) by threatening, and then discharging, the employee for his statements on the website.26
In a similar case, the NLRB held that the company's policy prohibiting employee use of the company e-mail system for "non job-related solicitations" did not violate Section 8(a)(1) of the NLRA. In The Guard Publishing Company d/b/a The Register-Guard, the company implemented a policy that communications systems, including e-mail, are not to be used for non job-related solicitations. The company was aware that employees sent personal e-mails such as baby announcements, party invitations and sports tickets, but there was no evidence employees used e-mail to solicit support for any outside cause or organization other than the annual United Way fundraiser. An employee received two written warnings for sending e-mails to employees at their company e-mails soliciting union support.
The union filed a charge alleging the company violated Section 8(a)(1) by maintaining its policy and discriminatorily applying it against union-related e-mails. The Board compared e-mail systems to other types of employer-owned property -- such as bulletin boards, telephones and televisions -- and found that there was no statutory right to use an employer's equipment or media as long as the restrictions are not discriminatory. The Board also found that the employee's e-mails soliciting union support were different than the occasional emails about baby announcements, and that the e-mails supported an outside group or organization. Ultimately, the Board found that employees have no statutory right to use the company e-mail system for Section 7 purposes under the NLRA (the rights of employees to form, join, or assist labor organizations, and other concerted activities for other mutual aid or protection).27
Along with these potential legal issues, employers must be aware of issues that arise during litigation after accessing information from employees. Some courts have found that employers violate state professional conduct ethics rules by retaining and using emails protected under the attorney-client privilege doctrine.28 For example, in Nat'l Econ. Research Assoc. v. Evans, a Massachusetts Superior Court ruled that an employee did not waive the attorney-client privilege for personal e-mails sent and later accessed by his employer.29 The court denied the company's motion to compel disclosure of attorney-client communications between a past employee and his attorney.
Many of these emails were on the employee's work computer using his personal e-mail account, not his company account. The court held that the employee did not waive the attorney-client privilege because he did not use the company intranet or e-mail, and he did not forward the communications to his company intranet or save them in a file on his company laptop. Therefore, the court found that the employee took adequate steps to protect the confidentiality of his privileged communications.30 The law on this issue depends on the employer's specific jurisdiction. However, the lesson for employers is to have a properly drafted e-mail policy that is clearly disseminated to employees and updated as appropriate.31
IV. The Supreme Court’s reluctance to provide guidance on employees’ privacy rights in the use of new communications technologies in the workplace
Employment lawyers awaited with curiosity last year as the U.S. Supreme Court considered the case of City of Ontario, California v. Quon, 130 S. Ct. 2619 (2010), where the employer terminated an employee for transmitting sexually-explicit text messages on an employer-owned pager. The employer paid for the pager’s service plan, but the employee reimbursed the employer for his personal use of the pager beyond the allotted minutes of the plan. When the employer performed an audit of pager use, to see if the service plan needed changed, it discovered the explicit messages and terminated the employee. The trial court upheld the termination, but the Ninth Circuit Court of Appeals reversed. Both courts ruled that the employee had a reasonable expectation of privacy, but disagreed on whether the employer’s interests were sufficient to override the employee’s right. During the subsequent appeal, many hoped that the Supreme Court would shed some light on how to balance an employee’s right to privacy with an employer’s right to run its business. The first warning sign that this would not happen occurred during oral argument of the case. In discussing the concept of text-messaging, Chief Justice Roberts commented “I thought, you know, you push a button; it goes right to the other thing.” Justice Scalia replied “You mean it doesn’t go right to the other thing?”
Indeed, the Supreme Court eventually ruled that the case could be resolved without determining the extent of the employee’s privacy rights. Assuming that the employee did have a reasonable expectation of privacy, the Court held that the employer’s interest in auditing the pager records overrode that right. Thus, the Court declined to rule on what it called an issue of “far-reaching significance,” stating that such a decision would be premature because it is “uncertain how workplace norms, and the law’s treatment of them, will evolve.” According to the Court:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . . Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . . Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are communicated. . . . A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. Quon, 130 S. Ct. at 2629-30 (emphasis added). Consequently, the Quon decision shed little light on the extent of an employee’s privacy rights when texting on an employer-owned device.
And, employment counsel should not hold their breath waiting for the Supreme Court to take its analysis of social networking technologies any further. Justice Breyer admitted in November 2010 that he simply does not understand technologies such as Facebook. While giving a speech at Vanderbilt University, he said “If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook. And there are movies like The Social Network, which I couldn’t even understand.” While the highest court in the land may not be very eager to tackle the issue of Facebook and other technologies in the workplace, unions may force the NLRB to do so.
V. NLRB files complaint over “Facebook firing”
In late 2010, the NLRB filed a Complaint against AMR of Connecticut, an ambulance company that had fired an employee for comments she made about her supervisor on Facebook. The Complaint alleged that AMR’s Facebook policy illegally restricted employees’ rights to engage in concerted activity regarding the terms and conditions of employment. The case quickly settled, with the employer agreeing to revise its social networking policies to ensure that it did not interfere with employees’ rights to discuss their wages, hours, and other conditions of employment. Because of the settlement, the NLRB never had to render an actual decision in the case. Thus, there will be no review by a court and, while the case provides some guidance, it has no precedential value. While we know the NLRB thought the case on its particular facts warranted the issuance of a complaint, we know little else.
The AMR case seems to have sparked additional charges, however. On February 4, 2011, the Connecticut State Employees Association / SEIU filed an unfair labor practice charge (No. 34-CA-12906) against Student Transportation of America, a Connecticut bus company, alleging that the employer violated the NLRA by maintaining and enforcing a policy that prohibits the use of electronic communication and/or social media in any manner that may “target, offend, disparage, or harm customers, passengers, or employees,” or violate any other company policy. The charge does not allege any improper discipline – it simply attacks the policy itself. Likewise, the Communications Workers of America have filed an unfair labor practice charge against T-Mobile pertaining to its “restrictive and overly broad policies against employees’ freedom to discuss workplace issues on social networking sites.” Again, it appears that it is the policy itself that is under attack. Whether these cases will proceed to actual decisions by the NLRB remains to be seen.
VI. Creating a social networking/social media policy
It is essential for employers to develop a social networking policy, especially in light of the many legal issues that may arise. Employers must consider the many goals that the policy intends to cover, such as:
- Protecting the company’s trade secrets, confidential, proprietary and/or privileged information;
- Protecting the company’s reputation;
- Protecting the privacy of employees; and
- Establishing guidelines for whether use of social networking sites during working hours is permitted, and if so, under what circumstances.
Employers must also consider the parameters in developing a new policy, such as:
- Urging employees to go to Human Resources with work-related issues and complaints before blogging about them;
- Setting forth the potential for discipline, up to and including termination, if an employee misuses social networking sites relating to employment;
- Establishing a reporting procedure for suspected violations of the policy;
- Enforcing the policy consistently and with regard to all employees;
- Reiterating that Company policies, including harassment and discrimination policies, apply with equal force to employees’ communications on social networking sites;
- Reminding employees that the computers and e-mail system are Company property intended for business use only, and that the Company may monitor computer and e-mail usage; and
- Arranging for employees to sign a written acknowledgment that they have read, understand, and will abide by the policy.
Employers should embrace social media as a useful resource. Employers and their counsel must also be cognizant, however, of the legal issues that arise when taking advantage of this resource. Technology will continue to develop, as will the law regarding its implementation in the workplace.
(1) See www.facebook.com; see also Global Faces and Networked Places: A Nielson Report on Social Networking's New Global Footprint (2009) (hereafter "Neilson Report"), available at <http://scribd.com/doc/13112459/Global-Faces-And-Networked-Places-A-Niels... (last visited December 18, 2009).
(2) See www.myspace.com; see also Myspace, Wikipedia, <http://en.wikipedia.org/wiki/myspace> (last visited December 18, 2009).
(3) See www.twitter.com; see also Twitter, Wikipedia, available at <http://en.wikipedia.org/wiki/Twitter> (last visited December 18, 2009).
(4) See www.linkedin.com; see also LinkedIn, Wikipedia, available at <http://en.wikipedia.org/wiki/LinkedIn> (last visited December 18, 2009).
(6) See www.meettheboss.com; see also MeettheBoss, Wikipedia, available at <http://en.wikipedia.org/wiki/meettheboss> (last visited December 18, 2009).
(7) See www.plaxo.com; see also Plaxo, Wikipedia, available at <http://enwikipedia.org/wiki/plaxo> (last visited December 18, 2009).
(8) Neilson Report, surpa note 1.
(9) Karen Glickstein, Social Networking and Employment Law (2008), available at <http://forthedefense.org/articles/Social%20Networking%20and%20Employment... (last visited December 18, 2009).
(10) Chris Crum, Is Social Media Good or Bad for Business?, WebProNews, October 28, 2008, available at <http://www.webpronews.com/topnews/2008/10/27/is-social-media-good-or-bad...
(11) See Blogs, Wikipedia, available at <http://en.wikipedia.org/wiki/Blogs> (last visited December 18, 2009).
(12) Jackie Calmes, For a Washington Job, Be Prepared to Tell All, N.Y. TIMES, November 12, 2008, available at http://www.nytimes.com/2008/11/13/us/politics/13apply.html.
(13) Glickstein, supra note 10.
(14) This pre-screening issue potentially implicates a number of federal employment statutes inclduding the Americans with Disabilities Act ("ADA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), among other statutes providing protection for employees and applicants.
(15) Restatement of Privacy, § 7.03 Privacy Interests in Content Information.
(17) 18 U.S.C. § 2701.
(19) 18. U.S.C. §§ 2510(17), 2711(1) (definitions of Wiretap Act are applicable to Store Communications Act).
(20) In re DoubleClick Inc. Privacy Litigation, 154 F. Supp.2d 497 (S.D.N.Y. 2001).
(21) Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002).
(22) Id. at 872-73.
(23) Id. Note that the Court first dismissed the pilot's claim under the Electronic Communications Protection Act ("ECPA"), known as the Wiretap Act, because the vice president's act of logging into the site did not constitute an "interception" of an electronic communication and was therefore not prohibited by the ECPA. Id. at 879.
(24) Konop, supra note 21, 302 F.3d at 880; See also Pietrylo v. Hillstone Restaurant Group d/b/a Houston's, No. 06-5754, 2008 U.S. Dist. LEXIS 108834 (D.N.J. July 25, 2008)(upholding a jury verdict with punitive damages in which the company was held liable under the SCA for intentionally accessing a chat group on an employee's myspace account without having received authorization from the myspace member to join the group).
(25) 29 U.S.C. § 157.
(26) 345 NLRB No. 28 (Aug. 27, 2005).
(27) 351 NLRB No. 70 (Dec. 16, 2007).
(28) Sean Carnathan, Attorney-Client Privilege Trumps Workplace Regulations, ABA Section of Litigation, Fall 2009, Vol. 35 No. 1.
(29) No. 04-2618 BLS2, 2006 Mass. Super. LEXIS 371 (Mass. Super. Aug. 2, 2006).
(30) Id. at *11.
(31) Carnathan, supra note 27.