The Perils of Social Media
July 21, 2010

The evolution of electronic social media presents numerous complications in regulating employee conduct which may cause problems for the public sector employer. Employers must carefully balance liability considerations with privacy issues when regulating an employee's non-work related communications on work-issued computers, cell phones or other electronic devices.

It is inevitable that municipal employers will hire employees, or candidates will be elected, who use Facebook, MySpace, Twitter, Friendster, LinkedIn or some other form of social media. However, public entities need to consider the potential liability and risk due to employee activities on these sites, both on-duty and off-duty.

Municipal employers face potential liability from employee use of social networking sites or blogging, including claims for:

  • Slander
  • Defamation
  • Libel
  • Confidentiality breaches
  • Disclosure of trade secrets
  • Intellectual property infringement
  • Trade libel
  • Harassment suits
  • Discrimination and retaliation claims
  • Wrongful termination claims

In order to minimize liability from such claims, all employers should consider the risks inherent in employee use of these sites and whether to revise and supplement their policies in response.

Social Networking Sites and the First Amendment Social networking sites are “public forums.” Therefore, statements made on such sites raise issues of First Amendment free speech protection. However, if a public employee makes a comment related to their position as a public employee their comments may not be protected by the First Amendment. In 1968, the United States Supreme Court established in Pickering v. Board of Education that a public employee’s statements are protected by the First Amendment if the employee makes those statements as a private citizen on a matter of public concern—unless their speech creates a workplace disruption that is greater than the value of the speech. In the 2006 case of Garcetti v. Ceballos, the Court refocused that analysis, holding that when a public employee makes statements pursuant to their official duties, the employee is not speaking as a citizen for First Amendment purposes. Therefore, they are not protected by the Constitution and may be subject to employer discipline. If a public employer becomes aware of comments made by their employee on a social networking site which relate to their employment, that speech may not be protected. If those comments disparage the employer or those members of the public that the employer serves, or otherwise are disruptive to the employer’s interest, the employee may be disciplined for those statements.

When formulating or reviewing an electronic communications or internet usage policy a public sector employer is well advised to warn employees to consider the appropriateness of work-related comments on their social networking pages. Employees should be made aware that their work-related comments, regardless of whether made while on-duty or off-duty, can be grounds for discipline.

Restricting Use of Personal Phones
Many employees check and update their social networking pages while on duty. Although many employers have policies restricting non-work use of the internet, these policies often allow for occasional use during break time. These policies typically restrict only the use of work computers and wireless networks without referencing an employee’s use of his or her personal phone. Technology has advanced to the point where a personal phone can do many of the same things a personal computer can, including updating social networking pages. An employee could easily be distracted from their duties by their phone responding to messages or updating such sites. In order to curtail these distractions, modifying cell phone or personal call policies to limit access to cell phones during work time can be helpful.

Listserv Dangers
Many professions have “listservs,” which are email chains devoted to a particular profession in which members discuss current issues, new projects or difficulties they encounter. While these networking tools provide easy access to free information and allow employees to learn from their peers, employers should make it clear that employees should carefully consider what they disclose on these listservs. In describing a project, employees could inadvertently disclose confidential information. Additionally, employees could disclose confidential information about a client which not only breaches confidentiality, but also embarrasses their employer.

Employees should be told to describe any projects, if at all, as vaguely as possible. A listserv member is not capable of knowing who is in the audience when posting to a listserv. It is possible that their primary competitor or opponent could be a member of the listserv, receiving advance notice of any advances or tactical moves made by the posting individual.

Becoming “Friends” With Co-Workers, Supervisees and Clients
All employers strive for an atmosphere of collegiality and good morale. However, workplace friendships and social relationships add a component of “familiarity” which can interfere with professional relationships.

Many social networking sites such as Facebook or Friendster, offer the opportunity for its members to become “friends,” allowing these individuals access to the poster’s personal information. This information may include an indication of whether someone is a member of a protected category, such as religious affiliation, veteran status, national origin, etc.

Once an employee “friends” a co-worker or supervisor, that co-worker/supervisor has access to this personal information. With this access, the “friend” could assume many things based on the employee’s group affiliations, including membership in a protected category. In turn, the employer becomes privy to any knowledge of the employee’s life which could be gleaned from the site, even if the supervisor does not check the site regularly. An employer could learn the employee’s religious affiliation, sexual orientation or other protected classes which are not always evident to an employer. If the employer then is accused of treating the employee differently, notice of protected class memberships could be assumed.

With this information, supervisors also may be deemed to have notice of an employee’s medical condition. From there, the employer may have notice of a potential disability, triggering an obligation to reasonably accommodate under the Americans with Disabilities Act (ADA) or the Wisconsin Fair Employment Act (WFEA). Even if the employee truly is not disabled, this notice could lead to a “regarded as” claim under the ADA or WFEA, meaning that the employer could have thoughts that the employee was disabled and treated them differently.

A New Venue for Harassment
Social media sites offer the opportunity to post comments and otherwise communicate in forms which substitute for face-to-face communication. Employees should be trained that if one wouldn’t say it, one shouldn’t post it, email it or text it.

Social media sites weaken the normal boundaries between people—including employees and supervisors—due to the ease of posting a brief comment and forgetting about it. These quick postings can lead to back-and-forth exchanges during which unfortunate comments may be made. If these exchanges were made in the course of face-to-face conversation, the comments probably would not devolve so easily. Additionally, there would be no tangible record of what was intended to be a harmless exchange. However, such postings can be retrieved through nominal effort and could become evidence in a harassment suit. Potential evidence can originate from postings, emails sent from a personal computer, texts, “tweets” and similar communications. Such evidence could provide excellent fodder for claims of harassment, discrimination or retaliation, including the increasingly infamous “sexting” claims in which a co-worker or supervisor sends an email or text to an employee which could be construed as sexual harassment.

In anticipation of such claims, employers should revise their electronic communications and internet use policies so that they prohibit all forms of electronic harassment, whether based on sex or any other protected category. Employees should be required to report any “textual harassment” or other social media postings which they found discriminatory or retaliatory. Employers should expressly state that employees have no expectation of privacy in any statements made over the employer’s electronic communications system, including laptops, employer-provided cell phones, PDAs or remote-access computer networks. These policies should emphasize that employees can be disciplined, up to and including termination, for inappropriate use of any of these methods of electronic communication.

Use of Social Media Sites by Human Resources Professionals
Many employers use social media sites to check out applicants prior to interviewing or hiring. While useful, social media sites may provide too much information. You may learn answers to the many questions which you would not ask an applicant. For example, you may learn of an applicant’s membership in a protected category, such as national origin, veteran status, sexual orientation or religious affiliation. Even if you did not notice this information while on the particular site, knowledge may be imputed to you merely by visiting the website. Similarly, information learned on these websites may cause you to believe that an applicant is a substance abuser or has a criminal record of some sort. Even if untrue, and even if you do not consider information viewed, it may be assumed that you took the information as true, supporting a “regarded as” claim by an applicant.

Certain websites, such as LinkedIn, provide the opportunity to recommend a former employee or colleague. A positive recommendation on LinkedIn could be construed as a recommendation by the employer, even if the LinkedIn recommendation did not originate from human resources. This becomes problematic if the employer has a strict reference policy limited to certain information. The former colleague making the recommendation may not be aware of these limitations and may choose to disclose information beyond the policy limits. More importantly, the colleague may provide an opinion which conflicts with the reason that the employment relationship was terminated. Employers should add to their post-employment reference policy a prohibition on colleagues—especially managers or supervisors—from recommending former colleagues or commenting on their job performance through any social media site. Alternatively, employers could require their employees to seek prior authorization before posting their recommendations.

Conclusion
It is impossible and impractical to constantly monitor your employee’s use of social media sites. Additionally, overly-restrictive supervision can harm morale. However, employers are well advised to put policies and controls in place which clearly state that employees do not have an expectation of privacy in their use of an employer’s electronic communications devices.

In order to minimize the liability surrounding prevalence of social media sites, employers should consider revising their current policies to address the following:

  • A clear statement that misuse of social media sites, whether on- or off-duty, can be grounds for discipline, up to and including termination
  • A reminder to employees that transmitting a statement on a social media site regarding their duties as a public sector employee may serve the basis for discipline regardless of whether the statement is made on- or off-duty
  • Limitations on the use of employer-provided cell phones for social networking and internet use purposes
  • A prohibition on disclosure of the employer’s confidential, trade secret or proprietary information
  • Limitations on posting or blogging during business hours without prior written approval
  • A prohibition against using company email addresses to register for social media sites

If you have any questions regarding these matters or need assistance in reviewing your electronic communication and internet use policies, please contact your Davis & Kuelthau attorney.

 

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