What if an employer is weighing disciplinary action in light of an employee's social media posts? According to the Proskauer survey, 35 percent of respondents said their business has taken disciplinary action against an employee in relation to misuse of social media—up from 31.3 percent of respondents last year.
Parker recommends that employers consider the following questions before accessing an employee's social media communications:
• Is this a work-sponsored social media account, or the employee's private account?
•Does the employer have permission to access it? For example, managers can't coerce employees to show them a co-worker's private account. However, if an employee doesn't apply privacy settings to an account and is connected to hundreds of friends, they don't have much of an expectation of privacy.
•What is the purpose for accessing and monitoring the social media account? Is it a lawful purpose?
In some situations, says Parker, employers may have a duty to investigate the information they receive about an employee's personal postings—such as those that indicate illegal activity or a violation of company policy. For example, an employee might complain that a co-worker is using Facebook to harass them.
In other cases, an employer may be legally restricted from taking any action—like if an employee is criticizing management's policies on a Facebook page. "That may be protected activity under the National Labor Relations Act," Parker says.
So be sure to refer, too, to the National Labor Relations Board's guidance to employers on what type of social media provisions might be considered overbroad. "Employers in the U.S. do need to take a look at that guidance when drafting a policy," Parker adds.
One more question to consider before accessing an employee's social media account, says Parker, is: are there other ways of obtaining the information? In some cases, an interview with the employee could suffice. At other times, however, the relevant information may only be available through a social media search—and the employer may need to act before the employee has an opportunity to erase the data.
Ultimately, "those answers are going to help guide employers about what's the appropriate action to take," Parker says.
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