11. Privacy and Liability
It's not just a matter of
corporate curiosity,
but very real worries about
productivity and liability that push these policies.
Eric Rolfe Greenberg
Director of management studies, AMA.
22. REFERENCES
Reh, J. F. (2013) Your Boss Is Watching You. Retrieved from:
http://management.about.com/cs/people/a/MonitorEE062501.htm
Mello, J. A. (2012). SOCIAL MEDIA, EMPLOYEE PRIVACY AND CONCERTED ACTIVITY:
BRAVE NEW WORLD OR BIG BROTHER? Labor Law Journal, 63(3), 165-173.
Ribitzky, R. (2013). Active Monitoring of Employees Rises to 78%. ABC News. Retrieved
from: http://abcnews.go.com/Business/story?id=88319
Sánchez Abril, P., Levin, A., & Del Riego, A. (2012). Blurred Boundaries: Social Media
Privacy and the Twenty-First-Century Employee. American Business Law
Journal, 49(1), 63-124. Retrieved from:
http://search.proquest.com/docview/1081346543?accountid=33575
Saylin, G. M., Horrocks, T. C. (2013) The Risks of Pre-employment Social Media Screening.
SHRM. Retrieved from:
http://www.shrm.org/hrdisciplines/staffingmanagement/Articles/Pages/Preemploym
ent-Social-Media-Screening.aspx
Editor's Notes
Hello everyone and welcome!
With employers’ increasing use and access to employees’ social media we need to understand how this has affected employee privacy. My name is Denisa Dobrin and this week I will examine potential future pros and cons of the social media trends as they relate to legal issues in business and the employee’s right to privacy. This presentation constitutes my Week 5 Assignment for the “Legal Issues in Business” class at NECB.
The proliferation of social media and the affordability of internet connection have opened the door to a sudden explosion and modification in means of individual communication. Networking has changed dramatically – both at a personal and business level. But this new wave of connectivity has brought along new challenges.
New trends impose adaptation, new rules and regulations and innovative approaches. With more computers (personal and business) in use than ever, the internet access and social media are gaining popularity among all ages for a variety of reasons. But access and desire of sharing often butts heads with business image and parceling of personal vs. work time. That’s what set in motion a heated debate: personal privacy and work responsibilities – how far can a company go when it comes to monitoring an employee?
A good conversation starter on this topic would be defining the term: Social Media – also known as “Web 2.0”. Social Media is most commonly understood as a form of communication between organizations, communities, and individuals through the creation and exchange of user-generated content shared on highly interactive platforms, using mobile and web-based technologies.
According to a new eMarketer report, “Worldwide Social Network Users: 2013 Forecast and Comparative Estimates,” “nearly one in four people worldwide will use social networks in 2013. The number of social network users around the world will rise from 1.47 billion in 2012 to 1.73 billion this year, an 18% increase. By 2017, the global social network audience will total 2.55 billion.” These trends impact businesses and employees alike and they are becoming harder and harder to ignore. So how do businesses respond?
Ribitzky (2013) quotes an American Management Association (AMA) study that “nearly 80 percent of major companies now monitor employees' use of e-mail, Internet or phone.” The figure represents a sharp rise from 1997 and marks a trend. In 1997 only 35 % of companies kept tabs on their workers, and in 2007, 43 % of employers were actively monitoring their employees' internet use. The dramatic increase “comes while the percentage of workers with access to office e-mail and Internet remained virtually unchanged.” (Ribitzky, 2013)
The evidence is more and more obvious. There’s less and less area left for individuals to claim as private. "Privacy in today's workplace is largely illusory.” (Reh, 2013) We have more open space cubicles, our desk space is often shared, computers are all networked for ease of communication, information sharing and back-up and working from home or an alternate location (teleworking) is becoming a conventional choice. As a result, “it is hard to realistically hold onto a belief in private space" - Ellen Bayer, AMA's human resources practice leader. (Reh, 2013)
Here are the main reasons that have led to diminished personal privacy: liability, compliance, productivity and security.
Eric Rolfe Greenberg, director of management studies for the AMA, explained the “why” great: "It's not just a matter of corporate curiosity, but very real worries about productivity and liability that push these policies." (Ribitzky, 2013)He continued to point out other potential reasons: “personal e-mail can clog a company's telecommunications system, and sexually explicit or other inappropriate material downloaded from the Internet can lead to claims of a hostile work environment" (Eric Rolfe Greenberg as cited by Ribitzky, 2013)
One of the most important reasons for reduced privacy in a business scenario is to protect the employer from a variety of legal liabilities which could arise as the result of the content of such communications. And this can go both ways.When companies adopt social media, their first concern is related to people saying negative things about them. Thus, the first instinct is to issue a companywide policy that dictates what people can and cannot say, which can often backfire - since being able to talk about wages, hours and working conditions is protected by the NLRA. So from this legal angle, employers should be careful about disciplining employees for off-duty conduct. However, social media posts can be used as evidence in cases of work discrimination or harassment. Other social media associated risks that prompt legal liability for an employer/employee are related to inadvertently sharing details concerning: copyright and intellectual property (company’s trade secrets, internal strategy and financial information are confidential and should not be discussed outside the company), personal information (numerous Federal and State laws deal with employee privacy), offensive graphic material etc.
According to Reh (2013), “in regulated industries, taping telemarketing activities gives both the company and the consumer some degree of legal protection.” In addition, “electronic recording and storage may be considered part of a company's "due diligence" in keeping adequate records and files.” (Reh, 2013)There are a number of reporting requirements imposed under the Sarbanes-Oxley which “require the retention and storage of all e-mails related to financial transactions.” (Sánchez, Levin & Del Riego, 2012)
A significant number of employers monitor the communications and online activities of their employees in the workplace in order to determine “the extent to which employees are actually doing their jobs during work hours and not engaging in distracting personal business. Net-surfing, personal use of office e-mail, and/or dialing up 900 numbers expend time and assets on non-business related activities.” (Reh, 2013)
A very important reason for an employer’s monitoring needs rests with the fact that “electronic media can be a means for disgruntled employees to transmit confidential files or provide access to secure parts of the employer's website or intranet.” (Mello, 2012). The most well known cases involved whistleblowers – such as Snowden. Security is not only an employer’s concern, but an employee’s as well. There are exceptional cases where passwords to social networks where requested by employers to an employee’s private networks, as a clause to getting hired. “Despite granting employers access to information about their private lives by participating online, respondents expect that work life and private life should be generally segregated—and that actions in one domain should not affect the other.” (Sánchez, Levin & Del Riego, 2012)
So what rights does an employee have? How can an employee seek protection and privacy? Turns out that the employee has very few rights. According to the Privacy Rights Clearinghouse "New technologies make it possible for employers to monitor many aspects of their employees' jobs, especially on telephones, computer terminals, through electronic and voice mail, and when employees are using the Internet. Such monitoring is virtually unregulated. Therefore, unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch and read most of your workplace communications."
Several states have already passed legislation to restrict employer actions that come as a result of an employee's legal off-duty conduct. However, “there is no body of law which addresses the issue of employer monitoring of and resultant discovery of information posted on social networking sites.” So, “the question remains as to whether employees are entitled to a reasonable amount of privacy in their personal, public communications on social networking sites.” (Mello, 2012).
The debate in the employee privacy vs. business needs remains open. But the boundaries are slowly clarifying, as we all become more aware of the new realities in this era of the social media. One thing is certain: this is an uncharted territory and there is a fine line between a company’s right to protect its interests and hire the right people and the employee’s right to privacy (especially when they are off-duty).
The good news is that an increasing number of states are passing laws that “prohibit employers from obtaining passwords to a job applicant’s social media accounts. Such legislation highlights companies’ interest in finding out as much as they can about potential and even current employees.“ (Saylin and Horrocks, 2013) But the honest truth is simple: the best way to navigate the changes is to protect yourself. Don’t post anything in the public realm that you wouldn’t say to your boss. Make sure you know the laws of your state and grant access to your private information only to your closest friends.
