Workplace Privacy in the Facebook Age

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• What You Can and Can’t Do
• What They Can and Can’t Ask You

Technology has increasingly blurred the lines between our private and work lives. This means greater flexibility and autonomy. But on the downside? “Employees may have an expectation of privacy at work,” says Katharine H. Parker, a labor and employment law lawyer with Proskauer Rose, but it’s merely an expectation. “Employer monitoring, reviewing, or deletion and disclosure of electronic communications on company computer systems is an employer’s right. If employee privacy is important, they should use their own personal equipment.” “Many employers monitor phone calls now,” adds Mary Ellen Donnelly, an employment law attorney with Putney, Twombly, Hall & Hirson. “The bigger companies might monitor employees for keystrokes to see how productive an employee is throughout a day. Some stored communications, the employer will actually take copies of emails and spotcheck randomly what emails are being sent.”

What You Can and Can’t Do

It’s a new and thus fairly volatile area of the law. In 2007, for example, under the Bush administration, the National Labor Relations Board (NLRB) ruled that employers could lawfully bar employees from non-work-related use of its email systems. However, in 2014, the NLRB under the Obama administration ruled that employees have the right to use work computers for non-business related activities, including union organizing. Employers generally have a right to passwords for any work-related social media accounts, such as Linkedin. However, many states have now passed laws forbidding employers from asking for personal social media account passwords. In Hispanics United of Buffalo Inc. v. Ortiz, five workers criticized a coworker in a Facebook posting, a social networking site, and were fired, but an administrative judge for the NLRB found that the workers’ conduct was protected activity and directed that the workers be reinstated. “Those rules about not saying anything bad about your employer on social media are no longer valid,” Donnelly says.

What They Can and Can’t Ask You

The EEOC also cracks down on questions employers can ask job applicants about criminal history, disability and recreational activities. However, in the age of the Internet, many employers use online background checks to vet job candidates. They don’t have to ask; they can find. “Things that a prospective employer ordinarily cannot ask in an interview, like religion or sexual orientation, can be found on social media,” says Laurie Berke-Weiss, an employment lawyer with Berke-Weiss Law. She delivers a warning. “We all know that everything digital is like radioactivity. It has a half-life of 10,000 years. If you don’t want to see something again, watch what you put on the internet.” For more information about this area, see our labor law overview.