Privacy and social media in the workplace

PRIVACY AND SOCIAL MEDIA
IN THE WORKPLACE
Charles R. Bailey
Bailey & Wyant, P.L.L.C.
Charleston, West Virginia
June 28, 2013

1.11 billion
monthly active users on
Facebook
(Over 100 million of
those users are pets,
objects or brands)
554,750,000 active registered users on Twitter
200 million registered LinkedIn users worldwide
Source: LinkedIn, Statistic Brain, Huffington Post

27%of total U.S. internet time is
spent on social networking sites
15% of total U.S. mobile internet
time is spent on social networking sites
Source: Media Bistro

SOCIAL MEDIA PLATFORMS
 Social Networking – Facebook, Google +, LinkedIn
 Micro-blogging Sites – Twitter, Tumblr, Posterous
 Publishing Tools – WordPress, Blogger
 Collaboration Tools – Wikipedia
 Rating/Review Sites – Amazon ratings, Angie’s List
 Photo Sharing – Flickr, Instagram, Pinterest
 Video Sharing Sites – YouTube, Vimeo
 Location Based – Facebook Places, Foursquare, Yelp!
 Social Bookmarking – Digg, Delicious
Source: Decidedly Social

SOCIAL MEDIA STATS OF EMPLOYEES
 39% have befriended a colleague or business
contact on Facebook or LinkedIn
 14% have posted a status update or tweeted
about their work
 22% have posted a status update or tweeted
about a work colleague
 28% have posted photos of colleagues or business
activities
 1% have posted confidential business information
Source: Lexis Nexis

FASCINATING SOCIAL MEDIA STATS
 23% of Facebook’s users check their account five
or more times EVERY DAY
 President Obama’s victory Facebook post was the
most liked photo with over 4 million likes
 25% of Facebook users don’t bother with any
privacy control
 There are 175 million tweets sent from Twitter
everyday
 More than 2.6 million companies have LinkedIn
company pages
 56% of Americans have a profile on a social
networking site
Source: Huffington Post, Media Bistro, Convince & Convert

BALANCING AN EMPLOYER’S RIGHT TO
KNOW VS. EMPLOYEE’S PRIVACY
 Technology has greatly increased the ability of employers to
monitor employees both inside and outside of the workplace. At
the same time, technologies such as smart phones have blurred
the lines between personal and business, allowing employees to
work from home and conduct personal matters at work.
 Social networking sites such as Facebook and Twitter present
particularly pressing privacy questions because they integrate
several services: e-mail like communication, photographs, and
instant messaging.
 Oftentimes, social networking sites allow users to post items
“privately” or to a select list of “friends” or contacts. This further
blurs the line between public and private and creates difficult
questions regarding the reasonable expectations of privacy and
consent for employees.

BALANCING AND EMPLOYER’S RIGHT TO
 The Pew Research Center released data in
February 2013 indicating that 67% of online
adults use social networking sites.
 In recent years Employers have increasingly
sought to monitor and screen current and
potential employees through private e-mail
accounts and social media networking sites.

BALANCING AND EMPLOYER’S RIGHT TO
 Public employees are granted more protections
regarding their privacy rights than private
employees
 The First Amendment of the United States
Constitution protects public employees’ right to
freedom of speech.
 A public employee’s speech may be protected if it (a)
pertains to a matter of public concern and (2) the employee
is speaking as a citizen rather than an employee.
 If these facts have been met, a reviewing court will conduct
a balancing test to determine whether the public employee’s
interest in maintaining an effective, non-disruptive
workplace outweighs the public employee’s right to speak
freely. If these factors have not been met, free speech
protections do not apply.

BALANCING AN EMPLOYEE’S RIGHT TO
 The Fourth Amendment of the United States
Constitution protects public employees from
unreasonable searches and seizures.
 Searches and seizures by government employers or
supervisors of the private property of their employees
are subject to the restraints of the Fourth
Amendment.
 “[T]he touchstone of the Fourth Amendment is
reasonableness.” United States v. Kriesel, 508 F.3d
941, 947 (9th Cir. 2007).
 In determining reasonableness, courts look at “the
totality of the circumstances to determine whether a
search is reasonable.” United States v. Kriesel, 508
F.3d 941, 947 (9th Cir. 2007).

 Public employees’ expectations of privacy in their
offices, desks, and file cabinets…may be reduced
by virtue of actual office practices and
procedures, or by legitimate regulation.”
O’Connor v. Ortega, 480 U.S. 709, 715 (1987).
 Courts have found that the question of whether
an employee has a reasonable expectation of
privacy must be addressed on a case-by-case
basis. O’Connor v. Ortega, 480 U.S. 709, 718
(1987).

 Even if an employee has a reasonable expectation of
privacy in the item seized or the area searched, he must
also demonstrate that the search was unreasonable to
prove a Fourth Amendment violation.
 Courts have held that “public employer intrusions on the
constitutionally protected privacy interests of
governmental employees for noninvestigatory, work-related
purposes, should be judged by the standard of
reasonableness under all the circumstances.” O’Connor v.
Ortega, 480 U.S. 709, 725-6 (1987).
 The search must be “justified at its inception,” and
“reasonably related in scope to the circumstances which
justified the interference in the first place.” O’Connor v.
Ortega, 480 U.S. 709, 726 (1987).

WIRELESS DEVICES AND EMPLOYEE’S AND
EMPLOYER’S PRIVACY VIOLATIONS
 Everything an employee does on their wireless
devices, i.e. smart phone, tablets, etc., is
potentially discoverable materials.
 Many employees now use more than one personal
wireless device for work-related purposes, adding
to potential litigation expenses through discovery
and litigation holds.
 Employees traveling internationally with such
devices are subject to the United States Border
Security seizure rules.
 Lost and stolen devices add additional privacy
and confidentiality concerns along with questions
on how to handle such situations.

 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619
(2010) – the Supreme Court of the United States
considered the limits of public-employee
monitoring and the effect of employee monitoring
practices.
 While Quon involved a public employer, and
while it involved text messages sent by pager, it
is nonetheless instructive for all employers with
regard to the reasonable expectation of privacy
issue.
 In Quon the City of Ontario’s police department
issued pagers to its SWAT team members, and
warned the members that they would be
responsible for any charges incurred in excess of
the contractual argeement.

 The Official department policy was that the
Department had the right to monitor “network
activity including e-mail and internet use” and
that officers “should have no expectation of
privacy” in those communications.
 The Lieutenant who issued the pagers had an
informal policy of not examining officers’
messages as long as they voluntarily paid for
charges incurred for excessive use.
 Sergeant Jeff Quon, a member of the SWAT
team, exceeded the permitted use several times,
but voluntarily paid the charges each time.

 Reversing a judgment for the City of Ontario at the
trial – the Ninth Circuit held that the plaintiffs’ right
to privacy under the federal and state constitutions
had been violated because the search was not
reasonable in scope.
 On petition for a writ of certiorari to the Supreme
Court of the United States, the City of Ontario asked
the Court to decide the scope of the various plaintiffs’
reasonable expectations of privacy in the text
messages, including the effects of seemingly
contradictory formal and informal policies.
 The petition also asked the Court to resolve a conflict
among the circuit courts of appeals on whether a “less
intrusive means” analysis was appropriate.

 The Supreme Court of the United States declined
to rule on whether or not Sergeant Quon had a
reasonable expectation of privacy in his text
messages.
 The Court cited swiftly changing technology as a
reason for its failure to answer that question,
saying “[r]apid changes in the dynamics of
communication and information transmission are
evident not just in the technology itself but in
what society accepts as proper behavior. At
present, it is uncertain how workplace norms,
and the law’s treatment of them, will evolve.”
City of Ontario, Cal. v. Quon, 130 S.Ct. 2619
(2010).

 Thus, for the purposes of its holding in Quon, the
Court assumed that Sergeant Quon had a
reasonable expectation of privacy in his text
messages, that the City of Ontario’s review of the
transcript constituted a Fourth Amendment
search, and that the principles applicable to a
government employer’s search of an employee’s
physical office apply as well in the electronic
sphere. City of Ontario, Cal. v. Quon, 130 S.Ct.
2619 (2010).

 The Quon Court then turned on whether or not
the search itself was reasonable and found that it
was because it was motivated by a legitimate
work-related purpose, and because it was not
excessive in scope.
 Thus, the Court found that there were
“reasonable grounds for [finding it] necessary for
a noninvestigatory work-related purpose,” as the
Police Chief had ordered the audit to determine
whether the City of Ontario’s contractual
character limit was sufficient to meet the City’s
needs. City of Ontario, Cal. v. Quon, 130 S.Ct.
2619, 2623 (2010).

 Although Sergeant Quon exceeded his monthly
allotment of texts a number of times, the City of
Ontario requested transcripts only for August
and September 2002 in order to obtain a large
enough sample to decide the character limits’
efficacy, and all the messages that Quon sent
while off duty were redacted.” City of Ontario,
Cal. v. Quon, 130 S.Ct. 2619, 2623 (2010).
 Additionally, from the City of Ontario’s
perspective, the fact that Sergeant Quon likely
had only a limited privacy expectation lessened
the risk that review would intrude on highly
private details of Sergeant Quon’s life.

 Employers are now using Global Positioning Devices
(GPS) and Radio Frequency Identification (RFID)
technology.
 GPS is used to track the whereabouts of employees
who travel as part of their job, as well as logging
driving for purposes of “time worked” and avoiding
unauthorized overtime, and disciplining employees
for unauthorized deviations and unproductive
activities.
 Employer policies for RFID devices are vague and not
clearly defined. Employers, however, are using such
devices for employee access to buildings, time clocks,
investigating allegations of work rule violations (e.g.
misreporting time spent working), logistics and costs
analysis, and generating government required
reports.

MONITORING AND CREATING POLICIES
REGARDING INTERNET, E-MAIL, TEXTING, AND
OTHER ELECTRONIC DEVICES
 The Electronic Privacy Communications Act (“EPCA”)
(18 U.S.C. §§ 2510 et seq.) protects most electronic
communications, including e-mail, from interception,
attempted interception, disclosure and unauthorized access.
 The application of the statute depends upon the medium of the
message, the system upon which the message is located, and
whether the message is in transit or stored.
 Three exceptions relieve an employer from liability for
monitoring its employees’ e-mails: (1) consent (which
includes implied consent), (2) the “provider” exception
(which applies when a company provides its own e-mail
service or communications system), and (3) the “intra
company communications” exception (when the employer
accesses stored communication files).

OTHER ELECTRONIC COMMUNICATIONS
 In Fischer v. Mt Olive Lutheran Church, 207
F.Supp.2d 914 (W.D. Wis. 2002), a senior pastor
overheard a telephone conversation by a
children’s pastor which seemed to indicate
possible homosexual relationships.
 The children’s pastor was sent home and the
senior pastor hired a technology consultant to
examine the church’s computers.
 The children’s pastor had a password-protected
Hotmail account which was accessed through the
church’s internet connection. The senior pastor
guessed the password and accessed the e-mails.

 Eventually the senior pastor terminated the
children’s pastor, and the children’s pastor sued
and asserted a common law invasion of privacy
claim, as well as a claim under the SCA, arguing
his e-mails had not been accessed from employer-
provided servers, but rather from a remote, web-
based server owned by Microsoft.
 The Court did not definitively answer the
question whether the SCA was violated, but
indicated it believed the legislative history
behind the SCA showed that actions in that case
should be covered by the Act.

OTHER ELECTRONIC DEVICES
 In Pure Power Boot Camp, Inc. v. Warrior Fitness
Boot Camp, Inc., (S.D.N.Y., December 22, 2010),
the Court considered a similar situation.
 The employees Pure Power Boot Camp had
signed non-compete agreements, but decided to
set up a competing business.
 The employer filed a lawsuit based upon the non-
compete agreement and evidence from 546 e-
mails from the employees’ Hotmail and Gmail
accounts which showed that the employees had
taken customer lists and training materials, as
well as solicited customers.

 The computers auto-stored user names and
password fields, so the employer simply logged on
as the employees.
 The employees countersued for violations of the
SCA and the Court agreed that violations
occurred.
 Each employee was awarded $1,000.00 as
statutory damages per violations.
 However, the Court did not grant 546 violations,
instead holding that due to the proximity in time
of the access to the e-mails, there was only one
violation.

 In Bland v. Roberts the United States Court of Appeals for
the Fourth Circuit is considering whether an employee’s
“likes” on Facebook is protected by the First Amendment.
 The Plaintiffs alleged the Sheriff of Hampton City
terminated their employment following his reelection
campaign because they supported his opponent through
statements on the opponents Facebook page and “liking”
the opponents page.
 Each of the Plaintiffs claim they supported Sheriff Roberts’
opponent and Sheriff Roberts had knowledge of this
support.
 The lower court granted summary judgment to the Sheriff,
finding that “merely ‘liking’ a Facebook page is insufficient
speech to merit constitutional protection.”
 The court further held that in other cases considering First
Amendment speech have considered actual statements
made on Facebook as opposed to a simple “liking” of a page.
 A Facebook like is not substantive speech warranting First
Amendment protections.

 Gresham v. City of Atlanta, 2012 U.S. Dist. LEXIS
63603; 95 Empl. Prac. Dec. (CCH) P44, 502; 33 L.E.R.
Cas. (BNA) 1431.
 Gresham was employed as a police officer for the City
of Atlanta who investigated and arrested a forgery
suspect at Best Buy.
 Following the arrest Gresham posted on Facebook
“Who would like to hear the story of how I arrested a
forgery perp at Best Buy only to find out later at the
precinct that he was the nephew of an Atlanta Police
Investigator who stuck her ass in my case and
obstructed it?? Not to mention the fact that while he
was in my custody, she took him into several other
rooms alone before I knew they were related. Who
thinks this is unethical??

 The Office of Professional Standards received a
complaint regarding Gresham’s statements on
Facebook, and an investigation concluded
Gresham violated Work Rule 4.1.06 (“Criticism”)
which prohibited employees from publically
criticizing any employee or any order, action, or
policy of the Department except as officially
required.
 While the investigation was ongoing Gresham
was ineligible for promotion.
 Gresham filed suit asserting she was retaliated
against for her statements on Facebook.

 The Court considered Gresham’s claims that she
turned to Facebook when her allegations were
not fully investigated.
 The Court held this argument was disingenuous
because Gresham posted on Facebook just Seven
(7) days after her complaint.
 Additionally, the Court held Gresham’s free
speech interests did not outweigh the
government’s interests in “maintaining unity and
discipline within the police department and in
preserving public confidence in its abilities.”
 Gresham’s statements on Facebook were not
protected by the First Amendment.

 In April 2012, the United States Marine Court
discharged a Sergeant Stein for posting on a page
used by Marine Corp meteorologist “Screw Obama
and I will not follow his orders.”
 Sergeant Stein had also created a Armed Forces Tea
Party page on Facebook.
 The court determined Sergeant Stein violated the
Pentagon policy limiting the speech of service
members.
 Sergeant Stein specifically violated DoD Directive No.
1344.10, prohibiting participation in a partisan
political club (for sponsering the Tea Party Marines
Facebook page), and for his disparaging statements
about President Obama
 Sergeant Stein received an other than honorable
discharge.

 The Stored Communications Act (“SCA”) (18
U.S.C. §§ 2701 et seq.) prohibits unauthorized access to
stored electronic communications, giving a private cause
of action for unauthorized access to stored data found on
a computer’s hard drive or e-mail servers.
 There is a “provider” exception which would apply to
employer-provided accounts, equipment, etc.
 Generally, an employer may monitor an employee’s use
of company provided e-mail systems, internet usage, and
the like.

USE OF SOCIAL NETWORKING SITES IN THE
EMPLOYMENT CONTEXT: RISKS, BEST
PRACTICES, AND POLICIES
 Employers have begun to use social networking
sites as part of their background checks on
applicants. There is a wealth of information
which can be found on an applicant’s Facebook or
Twitter page. This can include job attitude,
political affiliation, age, and marital status.
 Because information posted on social networking
sites is generally considered public, and because
information posted on web page profiles generally
consists of voluntary disclosures, employers are
not generally restricted from accessing such
information.

SOCIAL MEDIA STATS OF EMPLOYERS
 21% have taken disciplinary action because of
information an employee has posted about a co-
worker
information an employee has posted about their
activities at work
information an employee has posted about the
organization
 30% have taken disciplinary action because of the
level of an employee’s social media use at work
Source: Lexis Nexis

EMPLOYMENT CONTEXT: RISKS, BENEFITS,
BEST PRACTICES AND POLICIES.
 However, an employer should be aware of two
important caveats:
 Authentication—everything on the internet is not
infallibly true and correct.
 An employer CANNOT use information gathered
through social networking to screen out applicants
based upon membership in protected classes, such as
racial groups, ethnic groups, religious affiliations, etc.
 Additionally, because review of candidate profiles on
social networking sites is likely to retrieve isolated
bits of personal information, the employer who
utilizes a search risks making judgments out of
context.

BEST PRACTICES, AND POLICIES
 The United States Congress is currently considering
the Social Networking Online Protection Act, which
prohibits an employer from requiring or requesting
that an employee or prospective employee provide the
employer with a user name, password, or any other
means of accessing a private e-mail account or social
networking website of the employee or prospective
employee.
 The SNOPA further prohibits the employer from
discharging, disciplining, or denying employment or
promotion or threatening to take any action against
any employee or prospective employee for declining to
provide a username and password, or other means for
accessing a private e-mail account or social
networking website and provides for a civil penalty up
to $10,000.00.

 Illinois 820 Ill. Comp. Stat. § 55/10 (2012) prohibits
employers from requesting or requiring any employee or
prospective employee to provide any password or other
related account information in order for the employer to
access the prospective employee’s account or profile on a
social networking website.
 The bill does not prohibit an employer from maintaining
lawful workplace policies regarding the use of
employer’s electronic equipment, including policies
regarding internet use, social networking site use, and
electronic mail use.
 However, an employer is not prohibited from accessing
information that is in the public domain or that is
otherwise obtained in compliance with the statute.

USE OF SOCIAL NETWORKING SITES IN
BEST PRACTICES AND POLICIES
 Maryland Code Ann., Lab. & Empl. § 3-712 provides that
an employer may not required an employee or prospective
employee to disclose any user name, password, other
means of accessing a personal account or service through
an electronic communications device.
 The employer may require an employee to disclose any user
name, password, or other means for accessing nonpersonal
accounts or services that provide access to the employers
internal computer or information systems.
 Additionally, the employer may investigate the use of a
personal website, internet website, web-based account, or
similar account by employee for business purposes to
ensure compliance with applicable securities or financial
law or regulatory requirements; or to ensure the employee
is not engaging in unauthorized downloading of an
employer’s proprietary information or financial data to a
personal website, internet website, web-based account or
similar account.

USE OF SOCIAL NETWORKING IN THE
 Other states with similar legislation includes
Oregon, Washington, California, Michigan, New
Jersey, New Mexico, and Utah.

OFF THE JOB BEHAVIOR, E.G., BLOGGING
AND DATING
 Romano v. Steelchase, Inc., NO. 2006-2233, 2010 N.Y. Slip
Op. 32645U (Sept. 21, 2010), the Supreme Court of New
York, Suffolk County, considered whether a plaintiff
alleging permanent physical injuries must turn over to
defendants information from her social networking pages
relevant to her “activities and enjoyment of life.”
 The public portions of the plaintiff’s Facebook and MySpace
pages showed content that was in direct contradiction to
her claims that she had sustained permanent injuries, and
defendants sought access to the private portions of her
pages in order to gain further contradictory evidence.
 The plaintiff used the available privacy settings on
Facebook and MySpace to restrict access to only those
“friends” she wanted to share information with, but the
court found that she could not shield relevant information
from disclosure simply because she had adopted privacy
settings to restrict access.

AND DATING
 The court found that to deny the defendants an
opportunity to access these sites not only would
go against the liberal discovery policies in New
York favoring pre-trial disclosure, but would
condone the plaintiff’s attempt to hide relevant
information behind self-regulated privacy
settings.
 The court also considered plaintiff’s argument
that production of the “private” portions of her
social networking pages would be an invasion of
privacy under the Fourth Amendment, and held
that production of these portions would not
violate her right to privacy, and any such
concerns were outweighed by the defendants’
need for the information.

AND DATING
 Applying Romano to the employment context,
employees may well lack an expectation of
privacy in what they post to their social
networking sites, regardless of the privacy
settings that they have adopted.
 Romano adds to the patchwork of state and
federal decisions addressing the privacy issues
and discovery implications surrounding employee
use of social media.
 No clear trend has emerged, and courts continue
to grapple with these issues and may reach
divergent opinions.

AND DATING
 In Britain, the Press Complaints Commission, a
voluntary regulatory body for British printed
newspapers and magazines, ruled in February
2011 that material published on Twitter should
be considered public and can be published.
 The PCC made its decision based on a complaint
by a Department of Transport official that the
use of her “tweets” by newspapers constituted an
invasion of privacy.
 The official’s message used by newspapers
included remarks about her being hungover at
work.

AND DATING
 The official said that she had a clear disclaimer that
the views expressed by her on Twitter were personal
and not representative of her employer.
 The official argued that she had a reasonable
expectation of privacy in her “tweets” but the PCC
found that the potential audience for the official’s
“tweets” was much wider than her followers because
each message could be forwarded by others, known as
“retweeting.”
 The PCC also agreed with the newspapers’ argument
that Twitter was publicly accessible and that the
official had not taken steps to restrict access to her
messages and was not publishing material
anonymously.
 Thus, the PCC held that the newspaper articles
containing the official’s “tweets” did not constitute a

AND DATING
 In Targonski v. City of Oak Ridge the United States District
Court for the Eastern District of Tennessee is considering the
Plaintiff’s harassment, hostile work environment, constructive
discharge, disparate treatment, and retaliation claims related
to rumors of the Plaintiff’s sexual orientation and comments
by fellow employees regarding the same.
 Targonski asserted that she informed her superior officer that
Officer Thomas was spreading sexual rumors about her.
 Additionally, Targonski asserted that Officer Thomas directly
told her that her husband was trying to get Officer Thomas
and his girlfriend to have an orgy involving Officer Thomas’
girlfriend and Officer Thomas felt she was a lesbian and
wanted to be part of it.
 Officer Thomas was transferred to a different shift but the
rumors continued.
 Targonski also complained she received six (6) unwanted
telephone calls with heavy breathing. The investigation
traced the number to Officer Thomas’ girlfriend whom the
department attempted to interview, however Targonski would
not allow the girlfriend to be interviewed unless she was in
the room.

AND DATING
 During this same time period Targonski posted
several messages on her Facebook page.
 On February 23, 2010, Targonski posted about
her desire for a female friend to join her naked in
the hot tub.
 The previous day Targonski discussed “naked
Twister.”
 On May 22, 2010, Targonski discussed female
orgies involving Officer Thomas’ girlfriend and
others to be filed by Targonski’s husband.

AND DATING
 Plaintiff eventually filed a Motion in Limine to
exclude her Facebook postings, asserting that the
documents are “impermissible character
evidence” with “essentially zero” relevance and a
chance of unfair prejudice of “more than zero.”
 The Court ruled the Facebook postings are
relevent to a key trial issue: whether Plaintiff
was subject to “a sexually objectionable
environment must be both objectively and
subjectively offensive, one that a reasonable
person would find hostile or abusive, and one
that the victim in fact did perceive to be so.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998) (quoting Harris v. Forklift Sys., Inc. 510
U.S. 17, 21-22 (1993)).

AND DATING
 The evidence was ruled relevant to the source of
the alleged rumors and to whether Plaintiff could
truly have found the alleged rumors offensive.
 The Court further found Plaintiff previously
authenticated the Facebook postings.
 Additionally, the Court ruled that because the
evidence is unfavorable to the Plaintiff does not
make that evidence “unfairly prejudicial.”

AND DATING
 A handful of states have enacted legislation which limits
the rights of employers to take employment actions based
upon such off-duty conduct as blogging and Facebook posts
(California, New York, Colorado, Montana, and North
Dakota).
 Even in states where no such statutes have been enacted
employers face legal liability for employment decisions
based upon off-duty blogging or Facebook posts, such as
 If the employee blogs or posts about status in a protected
class, or a medical condition, or a religious belief –
employment decisions based on these could lead to a
discrimination claim.
 If the employee blogs or posts about alleged harassment or
discrimination at work – employment decisions based on these
could lead to a retaliation claim.
 If the employee “whistleblows” about alleged company
wrongdoing – employment decisions based on these could lead
to a retaliation claim.

AND DATING
 What can, and should, an employer do with
regard to monitoring social networking sites?
 Example: A soon-to-be Cisco employee posted the
following “tweet” on Twitter: “Cisco just offered me a
job! Now I have to weigh the utility of a fatty
paycheck against the daily commute to San Jose and
hating the work.” A Cisco supervisor saw the “tweet”
and “tweeted” back, “Who is the hiring manager? I’m
sure they would love to know that you will hate the
work. We here at Cisco are well versed in the web.”
The job offer was rescinded shortly thereafter.

AND DATING
 Courts have not defined the contours of the
privacy interest which regard to public
employees’ social networking site information;
thus, public employees should use caution in
their use of social networking sites to make
employment decisions.
 Several states have recently passed legislation
granting private employees more privacy
protections in their personal e-mail and social
networking activities.

AND DATING
 Employers should not rely exclusively, or almost
exclusively on the results from any social
network review in making any employment
decisions.
 Employers should clearly train their managers,
and all persons who may be involved in the
review and/or decision-making process, of the
legal obligation to avoid gathering information
which might tend to disclose an applicant’s
medical conditions.
 Employers should exercise caution when seeking
to access information disclosed by employees in
social media sites and/or disciplining employees
for publishing such information.

AND DATING
 Employers must strive to find a balance between
protecting their own legitimate business interests
and allowing employees the freedom to express
their opinions and be themselves, particularly
during “non-work” time.
 Policies broadly banning an employee’s
statements concerning the employer should be
carefully evaluated.
 Employers should issue policies that provide
forewarnings and accurately describe the higher
expectations that usually apply to public
employees.

AND DATING
 Any such policies should be narrowly tailored to
address only legitimate, business-related areas,
such as restricting disclosure of trade secrets,
confidential information, and communications
that may violate the employer’s discrimination
and harassment policies.
 Employers should not ask an employee to “friend”
another employee or employment applicant for
the purpose of finding out information about the
other employee or employment applicant.

OFF THE JOB BEHAVIORS, E.G., BLOGGING
AND DATING
 Even with these safeguards in place, public
employers must be mindful of the employee’s free
speech protections and protections from
unreasonable searches and exercise caution
before disciplining an employee for speech that
may be considered protected by the First
Amendment of the U.S. Constitution or for
conducting a search that may violate the Fourth
Amendment of the U.S. Constitution.
 Private employers must clearly define internal
company policies regarding access to employee’s
private e-mail and social networking and avoid
violating privacy statutes in states having
privacy statutes in place to protect employees.

NLRB AND SOCIAL MEDIA
 Section 7 of the National Labor Relations Act grants
employees (with or without a union) the right to
engage in “concerted activities for the purpose
of…mutual aid or protection.”
 This right is enforceable under Section 8(a) of the
NLRA, which prohibits employers from interfering,
restraining or coercing employees who exercise their
rights under Section 7, or from discriminating against
employees because of their protected activity.
 The NLRB has long held that employee
communications amounting to concerted activity for
mutual aid and protection, having to do with wages,
hours or terms and conditions of employment, is
protected under the NLRA and cannot be restricted
by the employer.

THE NLRB AND SOCIAL MEDIA
 In recent decisions the NLRB has held that
blanket employer restrictions on employees
discussing work are illegal.
 The NLRB views such restrictions as infringing
on workers rights to discuss work conditions
freely and without fear of retribution, whether
the discussion takes place at the office or on
Facebook, Twitter, etc.
 However, the NLRB has allowed companies to
discipline employees acting as lone worker on the
internet.

 In Hispanics United of Buffalo, a nonprofit social
services provider in upstate New York, a
caseworker threatened to complain to the boss
that others were not working hard enough.
 Another worker, Mariana Cole-Rivera, posted a
Facebook message asking, Lydia Cruz, a
coworker feels that we don’t help our clients
enough at Hispanics United of Buffalo. I about
had it! My fellow co-workers, how do you feel?”
 Several colleagues posted angry, sometimes
expletive-laden responses. “Try doing my job. I
have five programs,”…”What the hell, we don’t
have a life as is,”

 Hispanics United fired Ms. Cole-Rivera and four
other caseworkers who responded to her saying
they violated company harassment policies.
 The NLRB concluded, in a 3-1 decision, the
caseworkers were unlawfully terminated.
 The decision was based on the NLRB concluding
the posts were the type of “concerted activity” for
“mutual aid” that is expressly protected by the
National Labor Relations Act.

 The NLRB, however, did not find protected
activity for a reporter at the Arizona Daily Star.
 After being frustrated by a lack of stories the
reporter posted several Twitter comments. One
said “What!?!?! No overnight homicide. …You’re
slacking, Tucson.” Another began, “You stay
homicidal, Tucson.”
 The newspaper fired the reported and the NLRB
found the dismissal legal, saying the posts were
offensive, not concerted activity and not about
working conditions.

 The NLRB further considered concerted activity in In
re: Tasker Healthcare Group d/b/a Skinsmart
Dermatology.
 Several employees participated in a private Facebook
group message during which one of the employees
disapproved of the employer’s rehiring of a former
employee.
 The employee posted a string of expletives about the
employer, said the employer should fire the posting
employee.
 Another employee who was part of the discussion
showed the message string to the employer and
determined it was “obvious” the employee no longer
wanted to be employed by the company and
terminated employment.

 The NLRB determined the messages were not
protected concerted activity and upheld the
termination because the message string
contained no shared employee concerns over their
terms and conditions of employment.
 An employee engaging in “mere griping” without
any though of forward action is not protected
activity.
 Employers should understand that employees’
legitimate complaints about work conditions are
protected, and they may not discipline employees
for such complaints, even if they are overly
critical or ultimately are not well founded.

 The NLRB issued a Memorandum OM 12-59
(May 30, 2012), summarizing a series of
memoranda from the Division of Advice involving
social medial policies.
 Under this Memorandum a rule will be found to
unlawfully chill-protected activity if: (a)
employees reasonably would construe the rule to
prohibit such activity; (b) the rule was issued in
response to union activity; or (c) the rule has
been applied to restrict protected activity.

PRIVACY AND SOCIAL MEDIA IN
THE WORKPLACE
 The end.
 Questions?

Privacy and social media in the workplace

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