I. Introduction
We live in a highly-connected world. Every second-and-a-half, someone creates a new blog. 1All day long, people follow each other on Twitter via pithy messages called “tweets.” At any given moment, new friendships are forged on Facebook and MySpace, while folks “LOL” – laugh out loud -- on text messages. Information flows quickly and freely with the click of just a few buttons. These communication tools continue to evolve and present many benefits. They also create certain challenges, especially in the area of employment law.
Increasingly, employers are using information posted on blogs and social networks to make hiring, firing and other employment decisions. 2Although these forums can provide valuable information to employers, they also carry certain risks. Below is a list of laws that are implicated by employer use of blogs and social networks, as well as an overview of some of the considerations employers should make before they implement blog and social network policies for themselves and their employees.
II. Laws Implicated by Employee Blogging and Social Networking
Generally, the employment at-will doctrine allows an employer to take action against an employee based on the content of a profile, a “tweet” or a post on a social networking site or blog. However, before an employer relies too quickly or too heavily on the employment-at-will doctrine, it should be aware that other laws are implicated 3:
Anti-Discrimination Laws . Title VII and other anti-discrimination, anti-harassment and anti-retaliation statutes may apply to employment decisions based on blog or social network postings. When an employer uses social networking sites for employment screening purposes, the employer potentially exposes itself to information to which it is not legally entitled – such as an applicant's race, gender, age, or disability. Even if the employer does not use this information to make an employment decision, the fact that the employer had access to the information in the first place exposes the employer to frivolous claims and forces the employer to explain how and why it did not use the information. In addition, if the employer uses social networking sites to discipline employees, the employer must be consistent in how it treats employees based on the information collected. For example, an employer cannot discipline female employees for certain “inappropriate” blog or social network conduct if it does not also discipline male employees for the same or similar conduct. Even if the conduct justifies some form of discipline, the employer's inconsistent responses to different groups of employees could give rise to discrimination claims4.
First Amendment and Privacy Laws . An employee may raise First Amendment or invasion of privacy claims against an employer who uses information obtained from social networking sites to discipline the employee. First Amendment claims are only viable when state action is involved and requires proof that some important public interest is at issue. 5Moreover, invasion of privacy claims will survive only if the employee shows that the information at issue is actually private. Because information posted in public domains like blogs and MySpace pages cannot credibly be described as “private,” many invasion of privacy claims fail. 6Although these claims may be difficult to sustain, they still pose a threat for employers because employees are likely to include them as secondary claims in the event other claims fail.
National Labor Relations Act. The National Labor Relations Act (“NLRA”) grants employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” and prohibits employers from interfering with this right. 7Thus, under sections 7 and 8 of the NLRA, employee blogging and social networking may be protected activities depending on the nature of the information posted by and discussed among employees. An employer's response to this type of activity, whether it includes termination or some other form of discipline, could run afoul of the NLRA and expose the employer to liability.
Whistleblower Laws. Whistleblower laws could also protect employee blogging and social networking. Both state and federal laws protect employees who report fraud, illegal activities or other violations committed by employers. If an employee's blog or social networking alerts the appropriate authorities or individuals to these potential violations or illegal activities, that conduct could be protected by whistleblower laws and, therefore, prevent the employer from taking action against the employee.
Fair Credit Reporting Act. The Fair Credit Reporting Act (“FCRA”) requires prior written notice to and consent from an applicant or employee before an employer retains a third party to conduct a background check on the applicant or employee. Although there are no reported cases on the application of the FCRA to blogs and social networking searches, it is likely that the requirements of the FCRA apply. Therefore, employers must ensure that any policies or procedures regarding background checks adequately address the extent to which blogs or social networks may be utilized.
III. Policy Considerations
Before an employer decides to integrate blogs and social network monitoring into its employment practices, it should consider a few practical, but important issues. First, employees are likely to be resistant to this kind of oversight. For better or worse, employees overwhelmingly believe that what they do and say on a blog or social network, particularly after work hours, should be of no concern to their employer. 8Thus, any policy that appears to regulate this behavior will likely meet some resistance and may negatively impact employee morale.
In addition, too much information can sometimes be a bad thing. An employer should know that it “owns” any information it obtains from a blog or social network. For example, if an employer becomes aware than an employee has had multiple traffic incidents but still allows that employee to drive at work, the employer may have to account for this knowledge later if the employee has a driving accident on the job. If an employer decides to use blogs or social networks as a source of information about employees, the employer must be prepared to act promptly, appropriately and consistently based on that information.
Employers are advised to develop clear policies and practices regarding the use of blogs and social networks in the workplace – even if the policy is to prohibit all use of these forums for any purpose (hiring, firing, etc.). Generally, an effective policy should notify employees regarding whether or how the employer intends to use blogs and social networks. The policy should also notify employees that: (1) employees have no expectation of privacy when using company computers/systems; (2) disclosure of confidential, proprietary or trade secret information is prohibited; (3) disclosure of personal information regarding other employees is prohibited; (4) anti-discrimination, anti-retaliation and anti-harassment policies and other applicable local, state and federal laws and regulations apply; (5) use of employer brands, uniforms, logos, symbols or slogans is prohibited; (6) employees must avoid conflicts of interest and cannot suggest, state or imply that the employee represents the company or that the company authorizes the employee's conduct; (7) employees may be subject to disciplinary action for violations; and (8) specific managers or other appropriate personnel are available to answer questions and accept reports of any violations.
With good policies and practices, employers can make the most of this new “Twitter” age.
1Kiwanuka, Ba posting, Article Alley, http://www.articlealley.com/article_878118_64.html (May 5, 2009)(last visited July 8, 2009).
2Amy Joyce, Free Expression Can Be Costly When Bloggers Bad-Mouth Jobs , Washington Post , Feb. 11, 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A15511-2005Feb10.html (employee fired after stating on a blog that she hated her job)(last visited July 8, 2009); Helen A.S. Popkin, Twitter Gets You Fired in 140 Characters or Less: The “It” Social Networking Tool of the Hour Streamlines Your Humiliation, MSNBC.com, Mar. 23, 2009, available at http://www.msnbc.msn.com/id/29796962/ (job offer rescinded after woman tweeted that she would “have to way the utility of a fatty paycheck against he daily commute to San Jose and hating the work”)(last visited July 8, 2009).
3In addition to the laws specifically referenced herein, other laws that might apply depending on the jurisdiction. Some states, like California and New York, have off-duty statutes that prohibit employers from using off-duty conduct as a basis for employment decisions, except under certain circumstances. Moreover, some federal and state laws, such as the Federal Stored Communications Act and the Computer Fraud and Abuse Act, restrict the manner in which computer files and electronic information is accessed. Under these laws, employers may be required to have valid authorization to legally access certain information or computer systems.
4See Simonetti v. Delta Air Lines , No. 1:05-cv-2321 JEC, slip op. (N.D. Ga. Oct. 28, 2005)(after being terminated for posting pictures of herself in an airline uniform, plaintiff sued for discrimination and claimed similarly situated male employees were not disciplined for their website and blog activities).
5See Tara Richerson v. Jeanne Beckon , No. 08-35310, (9th Cir. 2008)(content of teacher's blog did not qualify as a matter of "public concern" and therefore was not protected and the legitimate administrative interests of the school district outweighed teacher's First Amendment right to free speech).
6See Sandler v. Calcagni , 565 F.Supp. 2d 184, 196 (D.Me. 2008))(information on MySpace page not considered private).; Moreno v. Hanford Sentinel, Inc. , 172 Cal.App. 4 th 1125, 1129 (Cal. Ct. App. 2009)(information from Google search may be legitimate basis for employment decisions).
729 U.S.C. §157 (West 2009).
8Workplace Survey on the Privacy Age Group , Ponemon Institute , 2007-2008, at 2. Eight out of ten workers older than 50 would consider it an invasion of privacy if their employers were to discipline them for after-hours blog postings or social networking, regardless of the content. Three out of four younger workers felt the same.
