Social media has transformed our ability to share and learn information for personal and business use. As with most technology, social media has impacted the employer-employee relationship by expanding information channels and encouraging communications that can impact legal rights in the workplace.

Social media, which includes social networking, involves online communications in which individuals shift from audience to author in an online setting.¹ Social media is often implicated in hiring decisions, internal investigations, advertising, marketing, termination and the use of confidential or proprietary information by employees.

What are the most common questions that surface when private employers and their employees are permitted to access, share and use social media in the employment setting?

Social Media and Hiring and Firing

Given the wide range of individuals that may send and receive communications through social media the first question is: Who is responsible for the content of the communication and the legal consequences that follow?

For example, who is responsible for defamatory content regarding a competitor that is disseminated by an employee through the company’s Facebook account? What is the employer’s responsibility when a management employee is harassing a subordinate through emails and social media posts? Who owns vital sales information on a departing employee’s social media account?

The answers to these questions often depending on the language of the employer’s social media policy, the individual or entity that owns the device and, in some cases, the legal relationship between the employer and the employee at the time of the communication.

Because of its scope, social media invites a number of problems. It is impractical for employers to monitor all of their employee’s social media use, which opens the door to potentially harmful communications.

For example, an employer may be liable for harassment or other discriminatory acts taken by an authorized supervisory employee on social media. Under these circumstances, it is imperative that the employer implements a social media policy that reaffirms the company’s obligation to investigate and, where necessary, cure discriminatory conduct that occurs on social media.

These provisions should:

• Clearly define prohibited harassment and discrimination;
• Expressly prohibit jokes or other unguarded comments that could be viewed as offensive;
• Apply directly to any use of social media, personal or employer-owned, while the employee is working;
• Provide employees with an avenue to complain or report improper communications, including those on social media;
• Provide for immediate investigations;
• Be the subject of regular training; and
• Be consistently enforced.

For employers that use social media regularly, or allow employees to bring their own device to work, it may be useful to implement filtering software that monitors communications, with the employee’s express consent, to insure that employees interact appropriately. This will depend on the employee’s access to proprietary information and the possible damage that can follow from his communications.

Like many communication channels that open through the internet, social media provides an outlet for unguarded, and sometimes unwise, communications. Social media may reveal an individual’s political views, religious beliefs and controversial points of view. Social media may provide access to an individual’s race, ethnic background and sexual orientation. In some cases, social media may reveal a user’s more intimate thoughts, including information that would otherwise be kept private.

Even though social media provides access to information that could not be obtained through an interview, employers should exercise caution in searching social media for information about prospective employees. This is so even if the information is not used to make a hiring decision.

There are reported cases in which employers searched for and circulated information about a prospective employee’s religious views, inviting costly litigation and scrutiny regarding the employer’s refusal to hire the applicant on religious grounds.² These cases teach that it is unwise to search social media in connection with employment decisions, as the employer invites liability for doing so even if the information is not used. Some states prohibit “cybervetting” by prohibiting employers from asking for account information from a prospective employee. Wisconsin has not passed such legislation.

Similar issues surface when employers access social media during internal employee investigations. Social media may demonstrate than an employee is not working during a given time period. Social media may provide information about employees who are transferring proprietary or confidential data to third parties.

Despite the obvious utility of this information, there are limits. For example, Federal law prohibits employers from intentionally accessing a user’s social media account without his permission or consent.³ The employer also subjects itself to liability when it uses deceit or duress to access an employee’s social media account.⁴ Despite these restrictions, employers are generally permitted to access information that is in the public domain when conducting employee evaluations, provided that the employee is not disciplined for using social media during nonworking hours.

Fundamental Questions Concerning Ownership of Social Media in the Workplace

Under certain circumstances, it is reasonable for employers to limit an employee’s access to social media and to restrict the content of employee communications. It is permissible for an employer to restrict or prohibit access to social media on computers and mobile devices that are issued by the company. Employers can prohibit the use of social media for personal reasons during working hours. Otherwise, it is often impermissible for the employer to enact policies that prohibit the employee’s lawful, off-duty conduct on their own devices. In fact, Wisconsin has enacted a statute which prohibits discrimination against employees for using lawful products, which would include social media.⁵

Federal legislation also proscribes employer policies that restrict the use or content of social media. Under Section 8(a)(1) of the National Labor Relations Act, it is unlawful for an employer to interfere with or restrain employees from organizing or otherwise engaging in protected, concerted activity. The NLRB has strictly enforced this provision against social media policies by prohibiting restrictions that interfere with the exchange of information between employees that may support protected, concerted actions. Given the NLRB’s strict enforcement of this prohibition, employers cannot restrict employee social media content that is “rude,” “disparaging, “disrespectful” or “inappropriate.”

As noted above, employers are permitted to implement clearly stated policies that prohibit employee from using social media during working hours. However, there are restrictions on the employer’s right to discipline employees for the content of social media that is disseminated when the employee is not working. If the employee is engaged in “concerted activity,” such discipline is impermissible. Again, the definition of “concerted activity” remains elusive.

In general, communications regarding the terms and conditions of employment that are shared with other employees are protected, and employers are not allowed to discipline employees for such communications, even if they occur during working hours.

Solutions for Potential Problems Arising from the Use of Social Media in the Workplace

Due to the growing use of mobile devices in the workplace, an employer should implement a social media policy that is tailored to the size and mobility of its employee base, the sensitivity of data that the employees handle, and the risk presented by the unauthorized or improper use of social media. For some employers, it may be necessary to maintain ownership of the mobile device and the data stored there.

In all cases, the implementation of a social media policy should include potential revisions to other company policies, such as anti-harassment provisions, to prevent the use of social media for improper purposes, such as harassment or discrimination. Such comprehensive revisions provide broader protection to the employer.

If nonexempt employees are permitted to use their own device for work purposes, the policy must emphasize how time should be properly recorded. Policies should also prohibit the use of personal devices for work purposes, such as scheduling or contacting clients from home. Such policies should be strictly enforced to avoid overtime claims.

Before employees are permitted to use their personal device at work, the employer should secure their consent to:

1. monitor and retrieve information on the device;
2. install security software to manage the device;
3. access and retain data on the device pursuant to a “litigation hold;” and
4. otherwise access data for legitimate business purpose.

These provisions should make it clear that the employee has minimized expectations of privacy in data stored on their devices, and thus avoid disputes regarding the appropriate ownership of company data. The Policy should also prohibit the disclosure of confidential data, including trade secrets and other proprietary information.

Finally, any policy must be consistent with any existing collective bargaining agreements and, equally as important, with other policies in the workplace. Any social media policy must comport with wage and hour laws, harassment and discrimination laws, and myriad regulatory provisions that govern workplace conduct. Such policies are strengthened when they are internally consistent and objectively enforced.

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