Employers may have a valid interest in reviewing or monitoring an employee’s or applicant’s social media pages, even when the employee’s online conduct occurs outside of working hours. That is often the case when the employee’s conduct affects his or her job performance or the employer’s reputation.
When employees post derogatory or slanderous remarks on social media, this can pose serious problems for employers because they feel obligated to address the sensitive issue. However, consideration should be given as to whether the employer may lawfully access or monitor employees’ social media activity, whether the employer may lawfully maintain a social media policy, and whether the employer may lawfully discipline or terminate employees for social media posts.
A newly enacted Montana law, which was adopted in 2015, restricts employer access to employee and applicant social media accounts and protects employees from retaliation for refusing to provide social media information in certain circumstances.
If you are a public employer, discipline based on the content of the employee’s comments should be weighed against the employee’s free speech rights under the First Amendment. First Amendment protection for statements made regarding a matter of public concern may have legal claims for restriction of those rights.
Employers should consider whether a social media policy is warranted and, if so, take care to recognize employee protections when drafting one. Likewise, when disciplining employees for social media activity, employers should evaluate whether the discipline comports with its own policies and the applicable labor laws. That will require some diligence, as those laws will undoubtedly change and evolve as social media usage and technology changes and evolves. In this area of the law, Heraclitus’s statement: “change is the only constant” is spot-on. When in doubt, consult with an attorney or human resources specialist.
More information can be found in my article, “Social Media in the Workplace: Legal Considerations for Private and Public Employers,” which can be accessed using the link below.