Workplace Privacy in the Social Media Age

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 labor and employment law attorney Katharine H. Parker, but it’s merely an expectation. “Employer monitoring, reviewing, deleting, or disclosing 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 Bond, Schoeneck & King. “The bigger companies might monitor employees for keystrokes to see how productive an employee is throughout the day. For some stored communications, the employer will actually take copies of emails and spot-check randomly what emails are being sent.”

What Employers Can and Can’t Do To Monitor Employees

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 passed laws forbidding employers from requesting personal social media account passwords.

In Hispanics United of Buffalo Inc. v. Ortiz, five workers criticized a coworker in a Facebook posting 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 “Those rules about not saying anything bad about your employer on social media sites are no longer valid,” Donnelly says.

What Employers Can and Can’t Ask You About

The Equal Employment Opportunity Commission (EEOC) also cracks down on questions employers can ask job applicants about criminal history, disability, and recreational activities. However, many employers use online background checks to vet job candidates in the Internet age. 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 post online.”

Find an Experienced Employment Lawyer

If you have questions about the use of social media in the workplace or creating sound social media use policies, contact an experienced employment law attorney in your area.