In the face of the ever-evolving world of social media, employers face a myriad of challenging issues relating to their employees’ use of their own, personal sites, such as Facebook and blogs. These issues include how to handle employees who post information about the employer, how to deal with employees who use sites to harass other employees, and how to address employees who use social media to post complaints relating to their employment. Though these, and other issues, have faced employers for several years, the legal system still only offers a somewhat haphazard set of laws which regulate what employers can and cannot do to address employees’ use of social media.
Currently, more than a majority of states have laws which address these issues. Minnesota, however, is not one of them. Several states have current legislation pending. And the laws of states which already have such laws in place offer greatly varied protections. Most of these laws serve to protect employees, however, as opposed to the rights of employers. These laws generally prohibit employers from requesting or requiring passwords or user names to their employees’ personal, social media accounts. Others prohibit employers from “friending” employees on social media or requiring employees to divulge posted information. Many of these laws also prohibit employers from retaliating against employees who act to enforce their rights under these social media laws. While current state laws either provide little guidance, or only protection for employees, many of the state laws do allow employers to prevent employees from posting confidential or trade secret information about their business, and to monitor (and prohibit) employees’ use of social media on employer-owned or issued devices, and/or during work hours.
At the federal level, no law currently regulates private employers’ use of, or access to employees’ social media, in any direct manner. The National Labor Relations Act has been interpreted to prevent employers from disciplining employees who engage in “concerted activity” through social media communications about working conditions with other employees, however. But the NLRB seems to be loosening these restrictions, which were largely promulgated in decisions issued during the Obama presidency. And any use of social media to discriminate against employees and applicants in protected classes such as race, gender, religion, etc. would be illegal under Title VII.
At the end of the day, it is imperative that all employers have a good working knowledge of the social media laws, if any, in their state. Policies should also be prepared and reviewed, and supervisory staff trained to be able to address these issues.