Nonetheless, this privacy interest has limits. Facebook is a public forum. Any given Facebook member routinely can have 200 plus "friends" who can access his or her page. Further, once the Facebook user posts message like a status update, that message can be sent to an infinite number of people, destroying any private nature it might have had. Think of it this way: If an employee sends a sexually explicit message to a co-worker who then, in turn, reports that message to management, that communication, once disclosed, loses any designation as private.
What happened to free speech? Employees occasionally contend that they have a First Amendment right to say and do whatever they want, particularly outside of the workplace. That's not so, and the legal department can help dispel this misconception. Once an employee chooses to work for a private employer rather than a governmental entity or municipality, First Amendment rights with respect to communications about the workplace go away. That is also called at-will employment.
Given all these considerations, what should general counsel have their companies do? It's imperative to implement a social networking policy that covers employee communications, whether made on company issued electronic equipment or on personal or company time.
This policy should state that the company expects employees, in their electronic communications, to abide by its policy against harassment and discrimination, as well as its policy relating to civil treatment of co-workers and appropriate workplace communication.
This policy also should require employees to respect the company's confidential and proprietary information in their electronic communications.
State in the policy that the company is not attempting to monitor private employee communications that are done on the employee's own time and/or on their own equipment; however, if a co-worker apprises management of such a communication, and it impacts company culture or exposes the company to legal liability, human resources will respond to that communication, if necessary.
Some employers vigilantly monitor communications among their employees to avoid the pitfalls associated with inappropriate communications. It is important for in-house counsel to know that, while the National Labor Relations Board (NLRB) has been quick to file suit against employers in such cases, no court has yet to rule on the NLRB's interpretation of the National Labor Relations Act with respect to electronic communications of employees of private employers. In the meantime, general counsel should remind employees and managers that the convenience of electronic communication carries with it an increased level of responsibility.
Jay M. Wallace is a partner in Bell Nunnally & Martin in Dallas. He focuses his practice on representing companies in all phases of employment law, both state and federal.