In the 21st Century, ‘water cooler’ talk is increasingly being replaced by online conversations. Chances are your employees are discussing workplace issues on Facebook or Twitter at least on occasion. And while you have every right to be concerned about your company’s online reputation, you must also walk a fine line between your business interests and your employee’s rights. Knowing what that line is, though, isn’t always easy.
Recently, the ABA Journal published an article highlighting the expanding issues surrounding your employees’ privacy rights and the use of social media. Many laws have been passed on the subject, but it’s still very much a gray and growing area and – as business owners – it’s often difficult to know where your rights stop and where your employees begin. If you’re concerned about your employee’s comments on social media outlets, want to know when their posts’ constitute libel or slander, or need to understand if and when you can terminate an employee because of statements they make online, then there are some precise laws you need to be aware of.
Just last September, California Governor Jerry Brown signed into law two Bills that now restrict an employer’s right to access an employee’s social media accounts. Senate Bill 1394 pertains specifically to schools. What you will need to pay close attention to is Assembly Bill 1844 which restricts your right to access employees ‘social media’ accounts. By ‘access’ the law specifies that an employer has no right to require or request that an employee divulge a password or login information to their personal social media accounts.
While that may seem obvious – and fair – to restrict employers from requesting such personal and confidential information, the law also leaves many disparities. For example, the term ‘social media’ in-and-of-itself is not black and white. With new chat rooms and networks cropping up almost weekly on the World Wide Web – all taking various forms – it is often difficult to determine which sites are actually ‘social media’ and which are not. There is no concrete definition for that term and there likely never will be. In addition, asking for a personal password is one thing, but what an employee posts on a public site for the entire world to view is a much different story. It’s still not always clear when you can take disciplinary action and when you can’t.
In addition, the National Labor Relations Act is a federal law regulating employer-employee relations. Despite popular belief, the NLRA does not apply exclusively to unionized workplaces. Many sections of the NLRA apply to all workplaces, unionized or not. In particular, those policies that address social media privacy will affect your business, regardless of what industry you’re in. This is important to understand as social media cases reviewed under the NLRA have – historically – fared far better for employees than employers.
What’s the bottom line? Every business and corporation with employees should have a sound social media policy on hand. It’s essential for your company’s growth and reputation in today’s virtual world. These policies should be well-thought out and take not only California-specific laws into consideration, but also relevant federal regulations, as well. So, if you’re considering implementing a policy for your company that addresses employees use of social media – or you are contemplating taking legal or disciplinary action against an employee over a social media account – it’s best to seek legal counsel first to ensure you’re not violating any provisions, state or federal. This is not an argument that you want to lose.
The Law Offices of Tony T. Liu specialize in business litigation matters, including employment issues and disputes. We have diligently kept up with the changing laws surrounding your employer rights and can help you to navigate the increasingly complicated maze.