Social Media: The Rules of the Online Game, Part II
Lynam & Associates is pleased to announce the publication of Part II of “Social Media: The Rules of the Online Game.” Â This article concludes our two-part series addressing the proliferation of online social media, and provides guidance to employees concerning their online conduct. Â Part I can be read here.
From The General Counsel’s Desk
The Rules of the Online Game – Part II
ByÂ David J. Lynam
Lynam & Associates, Chicago and Barrington, Illinois
Social mediaâ€”everything from e-mail and blogs toÂ Facebook, LinkedIn, and text messagingâ€”has becomeÂ a part of most peopleâ€™s daily lives and a part of theirÂ personal identity. The constant access we have to theseÂ outlets can blur the line between work life and personalÂ life. Prior to the advent of social media, employeesÂ conducted themselves in a certain fashion while at theÂ office and were free to act how they wished while offÂ the clock. Through social media, however, employersÂ now have access to their employeesâ€™ social lives andÂ employees have access to their personal lives while atÂ work. In this, the second and final part of this series,Â we explain what employees should know about the lineÂ between their work lives and personal lives in the contextÂ of social media and also address the recent U.S. NationalÂ Labor Relations Boardâ€™s â€œReport on Guidelines for SocialÂ Media,â€ which was issued in an attempt to clarify that line.
Employeesâ€™ Online Privacy
Perhaps the most problematic social media issue youÂ face as an employee is that your online presence isÂ primarily public, and your employer can view it at his orÂ her leisure. In fact, your present or future employer hasÂ every right to view any information you decide to makeÂ public through the use of social media. It is helpful andÂ smart to occasionally â€œGoogle yourselfâ€ (i.e., run a searchÂ for your name) to ensure that available information aboutÂ you is not something your employer would dislike or beÂ harmed by. Although states such as Illinois and New YorkÂ have enacted protective statutes, employers in mostÂ states have the right to terminate your employment ifÂ your online presence reflects poorly on the company.Â Notwithstanding these realities, many employees considerÂ their off-duty social life, whether online or not, to beÂ private, raising the following question: What does theÂ employer have a right to access and what is crossing theÂ line?
The first rule an employee must understand is thatÂ the employer may access and review anything accessedÂ using the employerâ€™s computer or other office equipment.Â For example, while it is illegal for your employer to signÂ in as you and have constant access to your personalÂ communications, if you have used personal e-mail orÂ personal profiles at work your employer may readÂ anything that was accessed at that time. Your employerÂ may monitor these activities to ensure that yourÂ productivity has not been hindered by personal use ofÂ electronics. Employers also may monitor such socialÂ media activities to investigate potential violations ofÂ company policies, such as the leaking of confidentialÂ information.
While these rules only apply to an employeeâ€™s use of theÂ employerâ€™s equipment, the employer also has the right toÂ limit personal electronic equipment use while at work. InÂ fact, the employer may even single out certain employeesÂ and create specific strict guidelines when thoseÂ employeesâ€™ work has suffered as a result of personalÂ electronic use. Essentially, employees should realize thatÂ employers have extensive rights to monitor and regulateÂ employeesâ€™ on-the-job social media activities.
Most employers have policies in place for socialÂ networking and personal communications at work. BeÂ sure to read and understand your employerâ€™s policy andÂ get to know what rights you have and what has beenÂ limited. Unfortunately, policies can never cover everyÂ possible scenario, and sometimes you will have to makeÂ judgment calls. As a general rule, it is best to think of allÂ on-the-clock online interactions as real life, in-personÂ interactions. Personal texts and e-mails at work shouldÂ be treated the same as having the conversations out loudÂ while at work: If you would not make the comment to theÂ supervisor, coworker, or clientâ€™s face, then you shouldÂ not post it. In addition, if you would feel uncomfortableÂ spending a half hour of personal time on the phoneÂ during work hours, then you should not spend a halfÂ hour sending personal e-mails or Facebook messages orÂ making blog or Twitter posts. While every employer hasÂ different standards, your employer is allowed to takeÂ your personal social networking into consideration whenÂ evaluating your performance.
Online Relationships with Your Employer
Whether using the employerâ€™s e-mail or letterhead,Â â€œliking or friendingâ€ the employer on Facebook, orÂ â€œfollowingâ€ your companyâ€™s Twitter, you also mustÂ consider your online relationships with your employer,Â as these interactions are packed with potential issues.Â Your online conversations with your employerâ€”whetherÂ it is the employer tweeting about you or you writingÂ a comment on the companyâ€™s Facebook wallâ€”all haveÂ potential consequences. While you do have some rights inÂ the unlikely event your employer makes comments aboutÂ you online, recognize that they also have rights to restrictÂ what you say about them.
Finally, any time you use your work e-mail, you areÂ acting on behalf of your employer, who becomes liable forÂ anything you say within those e-mails. In turn, employersÂ have the right to make you liable to them for any improperÂ use of their business e-mail or online business persona.Â It is therefore best practice to refrain from using yourÂ work e-mail for any personal purpose. If it is absolutelyÂ necessary to use work e-mail for any personal purpose,Â include a clear disclaimer that your communication is notÂ on behalf of the company.
Venting about Work
For as long as people have worked, people haveÂ complained about work. Employers and employees bothÂ realize that the majority of complaints about work areÂ simply meant to be venting. In fact, most employersÂ would take no offense if you go home to call a friend andÂ say, â€œMy boss has been unusually tough on me lately,â€Â â€œMy retirement plan is to die at my desk,â€ â€œAnotherÂ day, another dollar,â€ etc. Very little harm could comeÂ from such a comment, and there is even some goodÂ in allowing employees to get such complaints off theirÂ chest. However, imagine making the same comment on aÂ Facebook page or a blog, open for your employerâ€™s clientsÂ and the entire world to view. It is easy to see how thisÂ usually harmless comment can suddenly cause seriousÂ issues for the employerâ€™s reputation.
The above scenario sets the scene for the conflictÂ between employeesâ€™ rights to discuss working conditionsÂ and an employerâ€™s right to protect itself from damagingÂ claims. This situation is yet another where the line used toÂ be quite clear: An employee discussing working conditionsÂ with another employee has long been protected by theÂ National Labor Relations Act. With social media, however,Â that employeeâ€™s discussion looks much different than aÂ water cooler chat, as it now may be published in the publicÂ domain. These differences have been addressed, thoughÂ not exhaustively, by recent decisions of the courts andÂ the National Labor Relations Board, which attempt to setÂ forth the rights of both employees and employers in theÂ social media context.
National Labor Relations Board Report
The National Labor Relations Board (NLRB) is anÂ independent government agency that functions in partÂ to prevent and remedy unfair labor practices under theÂ National Labor Relations Act. While it usually deals withÂ union/employer relationships, the NLRB has recentlyÂ utilized its authority to address social media issuesÂ involving employees and employers. For example, inÂ response to the situation above, U.S. courts and theÂ NLRB have determined that online discussions of workingÂ conditions must be protected the same as in-personÂ conversations. However, employees cannot discussÂ absolutely anything about work with anyone on anyÂ forum they may choose. For example, while a group ofÂ employees discussing a working condition via a privateÂ Facebook group or a group e-mail would be protected,Â a single employee posting complaints about workingÂ conditions as their Facebook status is not. This is a fineÂ line for both employees and employers, and it will takeÂ time for the NLRB to catch up and better define guidelinesÂ for both parties.
In January 2012, the NLRB released a reportÂ documenting 14 cases from the last year in an effort toÂ better illustrate lawful versus unlawful conduct in socialÂ media. In the overwhelming majority of cases, the NLRBÂ found that the employersâ€™ social media policies wereÂ overly broad and in violation of the employeesâ€™ rights.Â Nevertheless, such findings did not always preventÂ an employeeâ€™s termination, so an employee should beÂ cautious in relying on an argument that their employerâ€™sÂ social media policies are overly broad. (You can downloadÂ the report at nlrb.gov, under Reports & Policies,Â Operations-Management Memos.)
Based on the NLRBâ€™s report, it appears that the courtsÂ are trying to use several established principles to findÂ a new rule for social media posts. For example, if anÂ employee posts something about work on Facebook, theÂ court will likely consider it to be a public statement. AsÂ a public statement, a Facebook post is protected speechÂ so long as it is not a â€œdisparaging attack upon the qualityÂ of the companyâ€™s product and its business policies, in aÂ manner reasonably calculated to harm the companyâ€™s
reputation and reduce its income.â€
As the law regarding employeesâ€™ rights to use socialÂ media continues to develop, a brighter line is beingÂ drawn. As an employee, it is important to keep up with theÂ developments and know your rights.
Although the line between personal and work lifeÂ has been blurred due to the use of social media andÂ electronic communication, it is important for employeesÂ to remember that a line does still exist and the rules ofÂ conduct change depending on which side of the line youÂ are on. It is best to use all of the available online privacyÂ tools to your advantage to keep your private life privateÂ and your work and public life in line with your employerâ€™sÂ standards. In the end, though, the best advice may still beÂ the saying â€œIf you donâ€™t have anything nice to say, donâ€™tÂ say anything at all.â€