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Regulations Restrict Monitoring of Employees on Social Media

legal risks of social media monitoring of employeesAs more companies adopt social media listening, some are monitoring online comments of employees. But before they take action against an employee for posting disparaging remarks about their brands, they had best check with their legal counsel. Acting hastily can land a company in court — and in PR trouble as well.

Courts have ruled that employers can fire employees who violate their social media policies, explains Arthur Lambert, a partner at Fisher & Phillips, in a Law60 article. However, the National Labor Relations Board has stated that employees have the right to discuss working conditions, pay or other employment terms with co-workers on social media — no matter what the company’s social media policies state.

Rights of Employers

Employers, Lambert says, have the right to take action against employees if employees’ posts include:

  • Complaints and/or threats against customers,
  • Harassing speech against a co-worker,
  • Confidential information about the company or clients or other information that may harm the company’s reputation,
  • Information regarding deception or violation of company rules, such as disclosing customer information.

Legal experts stress the importance of employee social media policies that comply with federal and state regulations and the need to stay current with changing regulations. Many states regulate social media monitoring of employees. Some restrict how much employers can regulate off-duty conduct and many of those laws cover social media, Lambert notes.

As marketing and PR departments typically oversee social media monitoring, it’s incumbent on them to work closely with legal experts when drafting social media policies concerning employees.

Reviewing Job Applicants

Reviewing social media profiles of job applicants also poses risks. Applicants may want prospective employers to examine their LinkedIn profiles or blog posts about their industry. Companies enter dangerous territory if they visit their Facebook profiles where they can learn about an applicant’s religion, ethnicity, political affiliations, union activity or sexual orientation. The prospective hire could allege they were denied the job because of their race, religion or other protected status.

Likewise, legal experts caution companies against ‘friending’ employees on social media where they can view their profiles and learn of employee’s personal information, such as sexual orientation, religion or political views.

“The problem escalates further if the employer takes some adverse action against the employee or potential hire within a short time after learning of the subject matter of the protected status or activity,” warns Huma Rashid in a National Law Review article.

Main Recommendations

Jason Shinn of Shinn Legal PLC stresses two recommendations:

  • Craft an employee social media policy with input from legal counsel.
  • Vigilantly monitor your brand on social media and be prepared to act to protect the organization’s reputation.

“The answer to whether your company should monitor employees’ social media use and use social media to screen job applicants should be driven by a meaningful analysis of business needs, risk assessment, and guided by legal counsel to (hopefully) bridge the two,” Shinn wrote in Michigan Employment Law Advisor.

Bottom Line: Companies have valid reasons and effective social listening tools for monitoring employees’ social media activities, especially if they suspect wrongdoing. However, if companies are not careful, they can run afoul of government regulations or elicit lawsuits from employees. These recommendations from legal experts will help organizations avoid those legal quagmires and regulatory penalties.