The widespread use of blogs and social networking web sites such as Facebook, MySpace, LinkedIn and Twitter has employers worried about what their employees are keyboarding and texting.
THE LAW: Generally, employers may regulate workplace speech and communication. Some laws, such as the Civil Rights Act, the ADA and others actually require employers to control abusive or harassing speech when it’s based on race, religion, national origin, color, ethnicity, gender or disability.
At the other end of the spectrum, the National Labor Relations Act bars employers from muzzling employees when the employees are discussing working conditions or even pay.
Common law gives employers protection against the loss of trade secrets, slander and libel. Many states have laws requiring keepers of personal information to report data security breaches. Employees who let confidential data loose on the Internet may be costing employers a lot.
WHAT’S NEW: The key laws governing employee communications were written in the 1930s, ’60s and ’90s—long before the rise of social networking. What would have been an offhand comment to one co-worker 40 years ago can now be typed on a keyboard and travel to a potential worldwide audience of millions at the speed of light. Employers must develop electronic communications policies to cope with the new technology.
Because no single law governs employee communications, employers must navigate among slices of law that govern communication on certain subjects. Further complicating the picture are court decisions that limit employers’ options when it comes to monitoring e-mail, text messages and social networking and blog posts.
A parallel concern: Overbearing electronic communications policies may stifle workplace collaboration and creativity. Social networking platforms may be great places for workers to tag-team projects, discuss new ideas and generally build camaraderie.
HOW TO COMPLY: Employers concerned about employee electronic communications should craft a policy that addresses those concerns in an evenhanded fashion. First, the obvious items:
- Communications that seek to harass, alarm, threaten or annoy the recipient should be banned on all company-owned devices, including computers, faxes and cell phones.
- Any communication of trade secrets is strictly forbidden.
- Any communication of confidential information is also forbidden.
Employers should develop punishments for violations, but the punishments should fit the crimes. Particularly egregious violations—such as sending customer lists to a competitor or threatening to harm a co-worker—should be grounds for termination and criminal investigation. On the other hand, lesser violations may be better addressed through. In short, don’t write a policy that ties your hands.
Your space and my space
Generally, courts have held that employers may regulate what occurs on their electronic devices. However, some recent decisions show courts backing off this absolute protection for employers.
In early 2009, a New Jersey appeals court ruled that an employee had a reasonable expectation that his employer would not read e-mail sent and received on a personal account even though it was sent from a company computer. A California court ruled that an employer could not access employee text messages without the employee’s permission if it paid an outside service to send the messages.
Some employee information found on social networking sites can cause inadvertent trouble. For instance, employees who reveal a disability may not want a current or prospective employer to know about it. Employers that stumble on such information probably should not act on it. Some plaintiffs’ attorneys argue that seeking personal disability information about a current or prospective employee on the Internet is the same as asking about a disability during an interview. The ADA bars such inquiries.
Similarly, the Internet is full of anecdotal stories of employees who placed pictures of themselves in scantily clad or provocative poses on their sites, only to have their employer terminate them shortly thereafter. Whether these stories have any merit is questionable, but it shows that employees have as many concerns as employers do in this brave, new electronic world.
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