Question: To what extent can I use what I find on social media, such as Facebook and Twitter, in disciplining employees?
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The answer to your question depends on various factors, including the posts’ contents, whether and to what extent they affect your workplace, and how you came to view or learn about them.
Section 7 of the National Labor Relations Act (NLRA) protects employees’ concerted activity if it is undertaken for the mutual aid or protection of other employees. That is, if a group of employees is posting information or engaging in a “group chat” on social media about certain topics such as wages, working conditions, workplace safety, or other employment terms and conditions, you cannot discipline or punish them for that activity. Section 7 does not, however, protect employees who posted negative comments directed toward their employer’s customer or reflective of their employer’s brand or business.
In addition to Section 7 rights, employees have a legitimate and reasonable expectation of “limited” privacy in most cases. In other words, an individual may retain a reasonable expectation that recipients of private information won’t spread it further. So long as they take steps to protect their media accounts from public viewing, courts have been willing to uphold this privacy expectation. Thus, employers that monitor employees’ social media accounts could run the risk of breaching the privacy expectation. If you do so, make sure your Internet/social media policy clearly spells out the privacy expectation, particularly in regard to company-owned equipment.
“Friending” your subordinates on social networking sites, such as Facebook, is risky. Although it may seem a harmless way to develop a good working relationship, it opens you up to a whole wealth of information you’d probably rather not have access to, and it also blurs the line you must keep firm in the employer/employee relationship.
For instance, people who sign on to social networking sites typically post personal information for the entire world to see. You may find out an employee has religious preferences, medical issues, political views, or social affiliations you didn’t know about. If you learn the information via social media and then later pass her over for a promotion, give her an unflattering performance appraisal, or do anything she may perceive as unfair treatment, you run the risk of a harassment or discrimination claim. Similarly, you may learn about off-duty conduct that affects the workplace and find yourself forced to investigate or report her to upper management.
Whether you can discipline an employee based on information you learned on social media depends on how you discovered it. If you learned it because you legitimately had access to her site, then you can use it. Legitimate access could include her site being open for public viewing, your being “friends” with her on Facebook (and therefore she would have no privacy expectation with respect to your viewing her site), or another employee with access to her site bringing the information to your attention. What you cannot do is ask an employee who is friends with her on Facebook to check her posts and then report back to you. Nor can you use the information if you came upon it in this manner.
Susan Hartmus Hiser is the President and a Shareholder at The Murray Law Group. She is also an editor for the Michigan Employment Law Letter and can be contacted at shiser@murraylawpc.com.