The use of electronic technology to network is no longer something which will occur in the future. It is the present and companies which ignore this development do so at their own risk. Recent events underscore the potential problems facing companies when their employees use social and business networking sites - for example, Facebook, LinkedIn, MySpace, and Twitter - now available to the public. The purpose of this Alert is to highlight some of the issues that social and professional networking may raise for employers, give an overview of some of the laws that may be implicated and offer a few rules of thumb to follow when handling employees' networking activities.
Issues Confronting Employers
Employers should consider whether to use or encourage their employees to use networking techniques as part of their business activities. If so, employers must then consider what, if any, limitations they should place on such use and whether to monitor the networking. Good reasons to monitor such activity include maintaining or improving employee productivity and protecting against disclosure of confidential and/or proprietary information. Companies should also consider whether, as a matter of course, they will use social and professional networking sites to gather information about potential and current employees or other business contacts.
Possible Legal Implications
There is not yet much law on the responsibilities and potential liability of companies for social and professional networking by their employees, but courts and government agencies are beginning to consider the legal implications of networking. History also teaches us that it is only a matter of time before this area will be regulated by legislatures, governmental agencies and courts.
Employers may be vulnerable to various tort claims (e.g., invasion of privacy, defamation, negligent hiring and retention, negligent supervision, intentional and negligent infliction of emotional distress) depending on their use or ignorance of what current (or potential) employees post on social networking sites. For example, an employer who does not review publicly available information on networking sites about an applicant and fails to discover that the applicant engages in violence or other criminal conduct could be vulnerable to a negligent hiring claim if the applicant is hired and later injures a customer or vendor.
Both employers and employees may be vulnerable to breach of contract claims, if, for example, either violates the terms of an employment agreement or company policy pertaining to the use of electronic media in the course of using networking sites. In addition, companies should be vigilant to ensure that employees do not disclose or otherwise misappropriate proprietary information, even innocently, when using networking sites. For example, if an employee discusses research on a new product on Facebook, her employer will want to have the reference removed by persuading the employee to do so or by obtaining a court order, if necessary. Similarly, if an employee agrees to maintain the confidentiality of a company's customer list, but then mentions by name a particular customer on Facebook with whom he had a business meeting, the company may want to take action informally or formally under breach of contract and misappropriation claims.
The anti-discrimination laws should also not be ignored. Networking sites may reveal information about prospective or current employees' membership in a protected class, e.g., religious beliefs, sexual orientation, age, race, gender, etc. If a supervisor "friends" an employee on Facebook and learns of that person's protected status, it could come back to haunt the company. Basing hiring or promotion decisions on information found on networking sites could easily run afoul of anti-discrimination and anti-retaliation laws.
Moreover, harassing comments directed toward an employee by a co-employee of which the employer should be aware could give rise to hostile work environment liability. Consider the example of Continental Airlines pilot Tammy Blakey. She brought suit against her employer, claiming the airline was liable for a hostile work environment as a result of defamatory statements posted by her fellow employees on an electronic bulletin board maintained by Continental.
In deciding the case, the New Jersey Supreme Court made clear that while employers "do not have a duty to monitor private communications of their employees," they "do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace." 164 N.J. 38, 62 (2000). Other plaintiffs have taken this decision a step further and argued that an employer has constructive notice of what appears on its own sites, and, therefore, a duty to take action when inappropriate material appears on the site.
In addition, many federal and state laws protect employees who complain about discrimination or other unlawful behavior. Companies should consider whether an employee who has complained about events in the workplace on a networking site may be acting as a whistleblower and, as a result, may be entitled to protection from adverse employment action. Similarly, companies may open themselves up to unfair labor practice charges if they take action against union employees who are communicating with one another via networking sites. Such employees have statutory and contractual rights to engage in concerted activities for the purpose of collective bargaining.
Other areas in which networking and employment law intersect include the following:
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Free Credit Reporting Act: This Act conceivably applies to social and professional networking sites if they contain information about an individual's creditworthiness. Employers may need to follow consent and disclosure requirements before using information available on these sites in their employment decisions.
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Federal and State Statutes Regulating the Privacy of Electronic Communications: For example, a federal district court in New Jersey upheld a jury verdict in favor of two employees fired from the restaurant chain Houston's. The employees had succeeded on their claims that Houston's had violated federal and state law when its managers obtained the login information for a private MySpace chatroom in which Houston's employees complained about their jobs. The jury concluded that the managers obtained the login information by coercing a subordinate into giving them the information and that the employee would not have done so had she not been pressured. See generally Pietrylo v. Hillstone Restaurant Group, Civ. No. 06-5754 (D.N.J. Sept. 25, 2009).
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First Amendment: Public employers, in particular, must use caution when deciding how to treat employees who express opinions related to their work on networking sites. Such opinions could relate to matters of public concern and, as a result, be protected.
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State Lifestyle Laws: Some states have enacted laws to prohibit employers from regulating lawful conduct outside of work. Social networking may qualify for protection under these laws, preventing employers from regulating such networking. To date, courts, however, are just beginning to weigh in on the issues raised by the use of these sites.
Rules of Thumb
Employers cannot ignore the realities of social and professional networking and may need to develop a policy to respond to the practical and legal implications of what has come to be known as "Web 2.0". When it comes to developing an appropriate networking policy, however, one size does not fit all companies. Some, for example, may encourage employees to use such sites as LinkedIn or Facebook to develop and maintain professional contacts, while others may be reluctant to use such media for that purpose. In addition, some companies could face morale problems if they seek to thwart social or professional networking by their employees. At a minimum, employers should endeavor to follow these rules of thumb:
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An employer should clearly identify what devices and equipment it considers company property and communicate to employees what activities it intends to monitor to advance business purposes.
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Employers should apply equal employment opportunity and professionalism policies to all statements made by employees in a professional capacity via electronic media.
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If employees are permitted to discuss company business on social networking sites, they should be required to identify their statements as their personal views rather than those of the company.
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Employers should emphasize that confidential and/or proprietary information must not be disclosed on professional and social networking sites.
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If an employer provides a forum, electronic or otherwise, for its employees to communicate and opine about company matters, the employer should task someone to monitor the forum to make sure that communications remain professional and respectful.
Although this Alert cannot address all of the complexities and issues that may arise in this area, you should evaluate your own workplace environment and consider working with counsel to tailor a networking policy to advance specific goals and guard against a host of potential legal claims.
