Gavel to Gavel: Pitfalls of monitoring social media

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The electronic age has made communication effortless and instantaneous, without boundaries. No longer must employees gather at the water cooler to discuss work – they don’t even have to be on the same continent.

Instead, employees post to Facebook; they text; they e-mail; they blog. Workplace incidents go viral with the touch of a smart-phone screen and an upload to YouTube. Business trade secrets are laid bare to the world with a few strokes of the keyboard.

And not just employees are using social media.

Companies now have websites, Facebook pages and Twitter accounts, through which they market their products. Human resources departments run background checks on applicants by perusing social media sites.

Is all this instantaneous communication good? Could there be a downside to having a company Facebook page or employee chat group? Can accessing public information on the Internet be a liability for an employer?

The answer to all these questions is yes.

Here are a few of the more common social media pitfalls for businesses.

Work-related discussions between co-workers via social media can be protected concerted activity under the National Labor Relations Act. Private employers – regardless of whether a unionized work force – are impacted in two ways by the National Labor Relations Board’s recent positions. First, having an overly broad social media policy discourages employees from engaging in concerted activity. Second, terminating an employee who posted criticisms of a supervisor is an attempt to discourage employees from engaging in protected concerted activity. In a recent case, the NLRB filed a complaint against an employer, seeking an order requiring reinstatement of the employee, lost wages and other relief.

Invasion-of-privacy claims can arise when employment decisions, such as hiring and firing, are based on information gathered from social media sites.

Claims under the Stored Communications Act, Wiretap Act and Electronic Monitoring Statutes can arise when an employer accesses an employee’s private electronic account, such as accessing an employee’s personal e-mail or Facebook page – with passwords stored on the company’s computer.

Lawsuits can be filed under off-duty conduct laws, which say an employer cannot take action against an employee or applicant for lawful off-duty behavior. Think twice before making an employment decision because of Facebook pictures, because partying – assuming legal age and substances – is lawful behavior.

Various claims can be made under Title VII, Sarbanes-Oxley and state laws, alleging social media conduct is just a pretext to fire the employee for an unlawful reason.

Social media is a mixed blessing; use it wisely. Review your company’s use of social media carefully. Use information gathered from social media judicially – and only when it has a direct impact on work performance. Stay informed on laws regarding access to and privacy of electronic information. Ensure your policy is not overly broad as to prevent or prohibit concerted activity.

Byrona Maule is a labor and employment attorney and director of Oklahoma City-based Phillips Murrah law firm.