Recently, we posted survey results from the Society of Human Resource Management showing that almost a third of respondents monitor employees’ use of social media platforms. Hopefully, they are also tracking the laws that could limit the extent of such monitoring.
“Social media monitoring that runs afoul of the employee’s privacy interests will subject the employer to liability,” according to Margaret M. DiBianca, attorney with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Del., in the book Think Before You Click: Strategies for Managing Social Media in the Workplace.
“The right to privacy is derived from several sources in the law, including the U.S. and state constitutions, federal and state statutes, and state common law,” wrote DiBianca, a contributing author of the book. “Each source, though, applies only to certain individuals and extends only certain protections. Thus, employers can avoid violating the privacy rights of their employees only by understanding when the various laws apply and what conduct they protect.”
DiBianca goes into detail about how these laws specifically affect an employer’s ability to monitor employees’ social media use. Here are a few excerpts.
Federal and State Constitutions
The right to privacy is not expressly provided by the U.S. Constitution, but the U.S. Supreme Court has inferred a constitutional right to privacy from the First, Fourth, Fifth and Fourteenth Amendments. Of these, the Fourth Amendment’s prohibition on unreasonable searches and seizures has been utilized most often as the basis for employees’ privacy rights. Only public employees (and those employees whose employer is acting as an agent of the government) may claim the protections of a federal constitutional privacy right. …
Like other claims for invasion of privacy, a claim brought under the Fourth Amendment turns largely on whether the employee had a reasonable expectation of privacy. The more intrusive the search, the more likely an invasion will be found. The best proactive measure that an employer can take is to have a clearly established search policy. Employees who receive advance notice of such a search policy have a lessened expectation of privacy, making a claim more difficult to assert.
Federal Statutes
a) The Wiretap Act
The federal Electronic Communications Privacy Act of 1986 (ECPA) controls the access, use, disclosure, interception and protections related to written and oral electronic communications. Title I of the ECPA, known as the Wiretap Act, protects information in transit. The Wiretap Act provides for three broad exceptions that enable employers to monitor employees’ electronic communications with immunity. The provider exception permits an employer to monitor electronic communications transmitted on its own proprietary email system.
The second exception is known as the “business-use” exception. … Decisions interpreting this exception look to the type of equipment used to perform the monitoring, whether the monitoring occurs during working time, and whether the employees were first notified that they were being monitored. The third exception, known as the prior-consent exception, provides that employers will not be subject to liability for electronic monitoring where they first obtain the employee’s consent.
b) The Stored Communications Act
[Title II of the ECPA, known as the Stored Communications Act (SCA), protects information once it has been received and placed in storage.] The SCA provides a private right of action for any person aggrieved by a violation of the statute. The SCA is one of the few laws that have been successfully invoked to protect employees’ social media use. …[Specifically, the Pietrylo v. Hillstone Restaurant Group and Konop v. Hawaiian Airlines, Inc. decisions “make clear that an employer who is not invited to view an employee’s social networking site or other online content by the employee himself may be subject to liability under the SCA.”
State Common-Law Claims
State law provides the basis for claims most commonly associated with a right to privacy. … In the employment context, there are four types of privacy intrusions that can trigger liability:
- an unreasonable intrusion upon the employee’s seclusion;
- unreasonable publicity given to the employee’s private life;
- an appropriation of the employee’s name or likeness; or
- publicity that unreasonably places the employee in a false light in the public eye.
Claims for intrusion upon seclusion [involving an intrusion by the employer into an employee’s private place, conversation or other affairs] and for the publication of private facts [when the employer makes a public disclosure of embarrassing private facts about the employee] have been the most successful.
DiBianca’s complete explanation, as well as social media tips from other legal experts — including how to draft a successful social media policy — can be found in Think Before You Click.