Workplace Social Media Rules Are In Transition

By HunterMaclean Attorneys

Special to Business in Savannah

Is “Big Brother” watching you when you update your Facebook status or post your latest Tweet?

Employers engaging in social media monitoring of applicants and employees should closely follow rapidly evolving legal standards. For example, an employer may face serious liabilities if it reviews a prospective or current employee’s Facebook profile to obtain answers to questions about “protected categories” such as religious affiliation. Such inquiries may violate equal employment opportunity and privacy laws.

In August of 2012, the California State Assembly Judiciary Committee passed a landmark social media privacy bill (AB 1844), authored by Nora Campos (D-San Jose), which prevents employers from requiring workers and applicants to provide passwords to their social media accounts such as Facebook and Twitter. The bill also prohibits any disciplinary action if an applicant refuses an employer’s request.

In addition, California also passed a bill that prohibits colleges and universities from requesting access to social media passwords from students and applicants. The legality of the social media landscape is changing quickly.

Currently, comprehensive social media privacy legislation similar to California’s is underway in at least 15 states, including Georgia. The legislation, will offer broader protection for employees.

If an employer cannot use social media sites as a screening tool for applicants and employees, can the employer terminate current employees for “inappropriate” status updates? Public employers must confront the question of constitutionally protected free speech and reasonable search and seizure. One judge recently ruled that clicking on the “Like” button is not speech at all, but the judge’s analysis has been widely criticized.

In the private sector, the U.S. National Labor Relations Board (NLRB) has ruled that employees (whether unionized or not) have a legally protected right to use social media sites to voice collective concerns about working conditions. Thus, company policies prohibiting any criticism of the company online are overbroad and an unfair labor practice.

Workers still need to be careful about what they post online. Purely personal concerns are not legally protected. Employees’ posts can also expose them to traditional legal claims, such as defamation, harassment, invasion of privacy, or emotional distress.