iThe use of social media is a rapidly evolving fact of life in today’s workplace that is changing the ways people communicate with each other, providing new ways to spend (and waste) time and new avenues for employees to get themselves—and their employers—into trouble. Many employers today are still struggling with basic questions such as whether or not to monitor their employees’ use of social media, deciding what types of social media should be monitored and wondering what to do when misuse occurs.
To Monitor or Not to Monitor: That Is the Question
The answer may depend on the type of social media in question. Monitoring employee use of the Internet (e.g., the amount of time spent on non-work-related websites) appears to be a no-brainer. If an employee is spending all day updating his or her status on Facebook, or checking scores on espn.com, the employer will want to know and address it.
Reviewing e-mails and/or text messages sent by employees is a different situation. Monitoring simply to monitor can alienate employees. A more prudent course may involve checking whether an unproductive employee spends too much time sending and receiving personal e-mails. Most employers allow limited use of work e-mail for personal reasons, so it is essential that a monitoring practice be carried out consistently. Monitoring is also appropriate, and often essential, when responding to complaints of harassment in the workplace.
Whether to monitor other electronic media, such as Internet message boards, blogs, and the like, will often depend on the nature of an employer’s business, and whether employees can create problems for the employer by what they say in the forum. Employers are quick to react when they fear their reputation may be sullied, but should consider whether disciplining (or terminating) an employee for something he or she posted online may create a much bigger firestorm than the comments initially made by the employee.
We Want to Monitor. What’s Next?
Any employer who wishes to monitor employee use of social media, whether it be e-mail, Internet usage, or blog postings, should have a comprehensive policy that is disseminated to all employees. The policy should make clear that the employer will be monitoring communications, what is prohibited and what the consequences will be if the policy is violated. The policy should also explain what communications will be monitored and why. Each employee should be required to sign a stand-alone acknowledgment form, just like many employers use for antiharassment and/or EEO policies.
Both management and staff should be trained on the policy and given an opportunity to ask questions so that their obligations and the company’s expectations are understood.
Because social media are constantly changing, an employer’s policy should change with it.
What Are the Courts Saying About These Issues?
The courts are playing catch-up in this area. However, more and more courts are weighing in.
In City of Ontario v. Quon, the U.S. Supreme Court held that a public employer acted reasonably when it reviewed an employee’s private text messages sent and received on a device issued by the employer. The City had issued a policy addressing employee use of work computers, e-mail and the Internet, stating in relevant part that the City “reserves the right to monitor Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” An audit later revealed that Quon’s work-related text messages constituted approximately ten percent of his total usage. Many of the remaining were sexually explicit messages between either Quon and his wife or Quon and his mistress. The City determined that Quon had violated Police Department rules.
Quon filed suit, alleging that the City had violated his Fourth Amendment right against unreasonable search and seizure.
The Supreme Court found that the City had not violated Quon’s Fourth Amendment rights, primarily because Quon had been put on notice that his text messages were subject to audit and the City had a legitimate purpose behind its investigation of Quon’s messages.
In reaching its conclusion that the City had acted reasonably, the Court assessed whether Quon had a reasonable expectation of privacy in his text messages. Finding that he did not, the Court emphasized that Quon had been put on notice that electronic communications on his employer’s devices were subject to review, explaining: “[U]nder the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used.”
While the employer in Quon was a public entity, and was thus limited by the United States Constitution in ways that private employers are not, the Court’s opinion provides helpful insight into how it and the lower courts will likely view these issues. Indeed, the Court observed that the employer’s search would be “regarded as reasonable and normal in the private-employer context” as well. Accordingly, private employers would be well-served to follow the City’s example by adopting a policy and training their employers on its mandates.
In Stengart v. Loving Care Agency, Inc., the New Jersey State Supreme Court looked at many of the same factors as the Quon court did in concluding that an employee’s right to confidential communications with her attorney was preserved, notwithstanding the employer’s recovery of e-mail communications between the employee and her attorney from a laptop that her employer had provided to her.
Many commentators have focused on the attorney-client privilege issue, intrigued, no doubt, by the question of whether an employer can find a way to get around the privilege because the employee was careless enough to send the messages using the employer’s computer. The decision is significant beyond the privilege issue because of what it says about employer policies.
Stengart sued Loving Care Agency, Inc., her former employer, alleging that she had been discriminated against on the basis of her gender, religion and national origin. Loving Care’s attorneys arranged a scan of the laptop that the Agency provided to Stengart for work-related purposes, and they recovered several e-mails that Stengart had exchanged with her attorney. These e-mails were sent from Stengart’s personal web-based Yahoo e-mail account, but were saved in the laptop’s temporary Internet cache.
Like the City of Ontario, Loving Care had a written electronic communications policy. However, the New Jersey State Supreme Court found that the policy was ambiguous and internally inconsistent with respect to what communications were subject to inspection. The court concluded that “[a]s written, the Policy creates ambiguity about whether personal e-mail use is company or private property.” Because Stengart used her personal, password-protected account for correspondence with her attorney, and the policy was silent as to the propriety of accessing such an account on a company computer, the court found that Stengart’s expectation of privacy was reasonable.
An additional factor in the Stengart court’s analysis was the nature of the communication at issue. The e-mails were labeled as privileged and confidential by Stengart’s attorney. The New Jersey Supreme Court took into consideration the public interest served by preserving the confidential nature of such communications when it concluded that counsel for Loving Care had improperly obtained privileged attorney-client correspondence.
Guidance for Private Employers
The content of the employer’s written electronic communications policy was crucial in both the Quon and Stengart opinions. The City of Ontario’s policy was clear and unequivocal, and the Supreme Court found that Quon had adequate notice that his text messages could be reviewed. In contrast, Loving Care’s policy had statements that seemed to conflict with one another, leading the New Jersey Supreme Court to the conclusion that the policy provided confusing and unclear notice to employees. While an employer’s detailed and clearly articulated policy statement regarding electronic communications at work is no guarantee that the employer will prevail in the event of litigation, the absence of such a policy is likely to weigh heavily against an employer who accesses private employee communications. Accordingly, employers are advised to distribute a written policy addressing these issues and to obtain a signed acknowledgment of receipt from each of their employees. Employers should consult with counsel prior to taking employment actions based upon information obtained by a review of an employee’s electronic communications if it appears that the employee may have expected those communications to be private.
As both the Quon and Stengart courts emphasized, the role of electronic communications in the workplace is evolving at a rapid pace, as is the body of law addressing those communications. Employers should update their policies and practices on a regular basis, in consultation with counsel, to ensure compliance with recent law.
