By Cordon T. Baesel, Esq.
Radical revolution. Breaking boundaries. Peak performance. Sounds like the last ten years in surfing, skating or riding, right? Probably.
But that also describes the advances in personal communication platforms. These changes have altered how we all play, live and work. What was once spoken, or written and edited, is now instantly uploaded for all to see and hear. Coupled with eroding workplace boundaries, employers face new challenges with employees.
This article briefly discusses how these personal communication platforms (i.e., social or new media) are impacting the workplace. And potentially increasing liability risks for employers.
Radical Revolution: How Free Should Instant Communication Be?
The biggest change is communication speed: Wireless connections and digital cams create content instantly. Given the speed and ease of virtual publication, should employers monitor employees' postings and blogging? On company sites or sponsored activities, that is expected.
But when employees or athletes post truly objectionable material on personal platforms, should the employer take action? "Can the employer take action?" Was it part of employment? Was company-issued equipment used? The scope and hours of employment are no longer easily defined. Offensive or harassing actions in "lifestyle" footage may be content created during employment.
The employer's risk is two-sided. If a lifestyle piece includes harassing or illegal conduct, the company may face claims from victim(s) or authorities. If the company disciplines the author, a discrimination or wrongful termination claim may follow. Given how a few clicks can create problems, most companies have a "social media policy" to implement employee behavior standards. A social media policy may muzzle artistic "freedom" but it identifies some boundaries so everyone can play by the same rules.
What are those rules anyway? Pretty much the same ones currently in the workplace.
Breaking Boundaries: When the Workplace Follows You Home
Not every employee "plays by the rules." Social media can be used to harass co-workers. An employee "Friend" posts sexually inappropriate messages for a co-worker during non-work hours. If the employer wants to stop that behavior, it must articulate its policy in the employee handbook. The policy should expressly include social media and clearly state that harassment is not tolerated. and if an employer ignores co-worker complaints, it could face a claim from the harassed employee.
That said, employees do have privacy rights and freedom of expression. Routine employer visits to an employee's Facebook or blog site may invade privacy if workplace action is based on the virtual visit. Electronic privacy laws are strengthening, despite free availability of Internet posts. Employers should exercise restraint if they search social media and discover drunken, "off-duty" posts from a key employee on his/her personal webpage. Unless such posts clearly impact job performance or violate an enforceable company policy, employers may create more, rather than less, litigation risk by searching the Internet for employee information.
Peak Performance: What Does His Blog Say About Company X?
But what about the employees that bad-mouth or trash their employers on social media sites? Can employers stop or curb this critical enthusiasm? Yes and No…(typical lawyer answer).
Yes, because employers can institute reasonable social media and posting policies that restrict certain employee content. As noted, restrictions must be related to the workplace and employer business interests.
No, because certain content is protected from discipline. If a worker complains, with co-workers, it can be "concerted" social media activity – multiple employees complaining about employers. Concerted employee activity is generally acceptable, and recent decisions by the National Labor Relations Board (NLRB) have applied that principle to social media. Even without unions or collective bargaining agreements, the NLRB legal principles can apply to an employer.
Likewise, reviewing social media for hiring decisions can be risky. No information on age, race, gender or familial status should be investigated online, including issues like pregnancy or religious affiliation. Though the personal interview was legally neutral, research on social media sites can provide otherwise unknown knowledge about the applicant. If employers act on it (e.g., no offer because pregnancy), an employer is harming a "protected class" of applicants. Either ignore social media and protected information, or be sure notes demonstrate the hiring decision relied on legitimate business reasons (lack of training, experience or skills).
The impact of social media in the workplace is evolving quickly. An employer's social media policy and employee handbook must be updated periodically as the law catches up with communication technology. Acceptable uses of electronic devices, ownership of content, search rights and discipline matters should be regularly reviewed. As we know, the (communication) revolution will be more than "televised" because it is posted, liked, blogged, tweeted and linked, anytime, anywhere.
Cordon T. Baesel is a member of the Action Sports Group at Luce, Forward, Hamilton & Scripps LLP. For more information, please contact him directly at 619.699.5459 or visit http://www.luce.com/actionsports.
Please note this article has been prepared for informational purposes only and is not to be considered legal advice. You are advised to speak directly with counsel regarding the matters discussed above.