Social media monitoring is becoming increasingly common by employers as social media use by employees grows. However, employers should be careful not to be so restrictive that they tread on an employee’s right to concerted activity as protected by the NLRA. Employers should carefully craft social media policies such that they don’t diminish this right.
Why should employers conduct social media monitoring?
There are several reasons employers may want to conduct social media monitoring:
- Social media monitoring can protect the employer from potential risks such as the sharing of confidential information.
- Setting up an alert service to track posts about the company can help to keep track of what employees are saying about the company on social media and also what the public is saying.
- If you never check in at all, you could be held liable if an employee uses your technology to act illegally, such as by using an employer-issued smartphone to send harassing messages.
Conducting social media monitoring: What to avoid
While it is prudent to consistently monitor the company’s online presence, employers need to be careful when doing so.
For example, employers should stay away from trying to obtain employees’ social media passwords or intruding on an employee’s social media account. Doing so could even be illegal in some areas.
Discrimination is another concern. “Be careful when monitoring. You may regret what you learn.” Jason A. Storipan noted in a recent CER webinar. The risk of discrimination claims increases when employers start accessing social media.
“What [protected class information] can be found on Facebook or other social media sites? You can get information about race, age, and other prohibited characteristics.” Storipan pointed out. Once you have information that shows inclusion in a protected class, it raises the potential for discrimination claims. Social media monitoring could easily uncover genetic information, disability information, or sexual orientation.
Social media monitoring and the NLRB
In addition to the concerns just noted, employers should also be sure not to violate employees’ NLRA-protected rights. The NLRB’s stance is that social media monitoring – particularly overbroad employer social media policies or unlawful discipline or discharge over contents of social media posts – may be a violation of an employee’s NLRA Section 7 right to concerted activity. As such, they’ve taken an interest in employers’ social media policies and actions related to social media activities by employees.
As a reminder, concerted activity is any group action or any individual action that is seeking to initiate, induce, prepare for group action, or bring group complaints to the employer’s attention. This includes social media posts that meet this definition.
For an individual post to be considered a concerted action, it should meet the definition above. On the other hand, if an individual posts something on social media that:
- Has no particular audience in mind at the time of the post
- Has no language suggesting the employee sought to initiate or induce group action
- Did not grow out of prior discussion over employment terms and conditions, and
- Did not generate discussion of shared complaints
Then it would not be protected as potential concerted activity.
Employers are able to bar employees from making inappropriate comments, but it is important to be careful not to discourage concerted activity. It can be a fine line.
Social media Monitoring: Tips for managers
In the webinar, Storipan provided some tips for managers:
- “Don’t become ‘friends’ with employees. Then you get access to information that you probably shouldn’t have.”
- “Don’t reveal anything you wouldn’t want to say or post to the public.”
- Don’t engage in fraud (examples include: initiating fake friend requests, asking for passwords, or trying to get information).
- “Use privacy controls to manage the flow of information.”
- Remember web content can be false. Don’t jump to conclusions.
The above information is excerpted from the webinar “From Smartphones to Google Glass: What Employers Must Know About E-Monitoring in the Workplace.” To register for a future webinar, visit CER webinars.
Jason Storipan is an associate in the New Jersey office of Fisher & Phillips LLP. His practice involves representing employers in all types of labor and employment disputes and assisting and advising clients in pre-litigation matters.