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Employers in an employment-at-will state like New York enjoy broad power over employees in the absence of a contract: They may terminate, transfer, reassign job duties, and diminish the pay and benefits of their employees, checked only by limited obstacles imposed by a network of anti-discrimination, anti-retaliation, and similar laws. This power reaches even beyond the boundaries of the workplace. Few at-will employees in New York enjoy any protection against random drug testing by their employers, Matter of Langley, 12 A.D.3d 753 (3d Dept. 2004); and employees have lost their employment through off-duty drunken-driving arrests. Green v. Wells Fargo Alarm Service, 192 A.D.2d 463 (1st Dept. 1993). As venues for obtaining information about individuals become increasingly numerous, and progressively cheaper, employers have more options for learning about — and reaching into — employees’ private lives.

Perhaps inevitably, employer interest in employees’ off-duty activity has found itself on a collision course with the dramatic rise of social media, such as MySpace, Facebook, and Twitter (whose use is not always confined to off-duty hours) and its empowerment of groups of like-minded individuals. The development of social media has expanded an employee’s audience from a handful of immediate listeners at a local happy hour to, potentially, any user of the internet: a dramatic increase in the number of individuals to whom even the lowest-ranking employee can now “bash the boss,” or offer up any other number of thoughts, opinions, facts, or images of potential interest to his or her employer. Against the backdrop of this conflict, confusion has frequently reigned in the workplace over what protections employees enjoy with respect to their social media communications.

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