The laws around social media, especially in the employment context, are still evolving to meet the technological and social implications of social media in the workplace. Before delving into particulars, let me say that I think everybody needs to carefully consider what they post on social media websites because the information you put out there is stored for a very long time and can be used in criminal investigations, lawsuits and family matters such as divorces or child custody battles. While public employees have some different employment rights, due to their employment relationship with the government, private employees find themselves with fewer rights and protections, which makes it more important to carefully consider what you post.
As a Dallas employment lawyer I see social media take an increasingly important role in employment litigation. Social media accounts hold an immense amount of information that may be relevant to an employment lawsuit. This is why employment lawyers like to request access tot his information. Social media accounts hold the content you post along with groups you join, the identity of people you associate with and a cache of metadata. Social media companies use the metadata collected from your posts and activity to form profiles that they use to sell advertising targeted to you. This metadata can have very useful purposes. It may contain damaging information that you do not even realize exists. Employment lawyers increasingly seek out this information to investigate lawsuits and employees. Employment attorneys representing an employer almost always seek out this information.
Texas employers use social media to make employment decisions
Employers are also trying to take a bite at using social media to its advantage in the workplace, sometimes with good reasons and sometimes clearly overreaching. Employers have a legitimate interest in what employees launch into the internet on social media websites. Employees may be badmouthing other employees, the company, managers, the company’s products and services, etc. So there is definitely a perception issue involved. There are also concerns that employees may purposefully or accidentally leak confidential information, trade secrets, or internal information that could cause the company problems in the future. Employers may also face liability when employees post harassing or discriminatory comments about co-workers, especially if co-workers are connected to the account (e.g. friends or following), the comments are posted during work hours at the place of employment, or from employer-owned devices, such as cell phones or computers.
Companies sometimes overreach by trying to require employees to disclose social media accounts and allow employers to access those accounts either during the interview or screening process and sometimes even on an ongoing basis. Companies also are developing social media policies that limit what employees can and cannot say about the company and coworkers. Often, however, employers find out that inappropriate or detrimental comments online by employees because the employees voluntarily share the information with co-workers or bosses by connecting with those people online.
How an employer in Texas can use your social media content in an employment context
Employers can use anything they can access in the course of employment decisions, if it does not violate the law. It is law that employers may not use information found online to discriminate on the basis a protected classification. (Such as gender, race, genetic information, disability, national origin, etc.) Employers may use the context of posted information or pictures otherwise protected when the information is inappropriate, discriminates against other employees, or creates a non-discriminatory basis for letting an employee go. For example, an employer would likely face discrimination charges if it terminated an employee who discussed being proudly African American on her facebook, if the employer used that statement of her race as motivation for termination.
However, the employer would be less likely to face legitimate discrimination charges if it saw the employee’s twitter account peppered with frequent “Kill Whitey!” statements. It may do so on the basis that it feared her hostility towards Caucasian employees. The information online often is somewhere in between those two points. Whether the employer’s use of the information is discriminatory is often grey.
In our current political climate where a lot of offensive memes and comments pass around social media, employers may be more sensitive to social media conduct and how an employee or applicant may affect the company’s image. If you believe your social media accounts may put your job or career prospects at risk then you should schedule a consultation with an employment lawyer to discuss your concerns.
The National Labor Relations Board position on union rights and social media in employment
The National Labor Relations Board (NLRB) also clarified that employees may use social media to criticize the employer, management and working conditions as long as the posted information was part of a concerted activity with other employees to discuss working conditions or unionize the workplace. This rule provides some protection for employees to complain about their job and their boss. However, this protection is not absolute under labor law.
Employees who launch personal attacks against bosses or co-workers do not enjoy protections. Similarly, if you post information or criticism not shared with other employees will not enjoy protections. If you post discriminatory comments about co-workers you will likely not enjoy protections from employer discipline or legal troubles. Although this protection currently is cast as very broad, in time I expect it will become more narrow. As it stands, the law is somewhat unclear on how intrusive an employer can be. Nothing clearly indicates that employers (at least private employers) cannot request access to accounts.
How a Texas employer can discover your social media posts
Employers will have access to certain information regardless of the company policy (or unofficial policy) about social media. Anything you can find through a search engine is publicly available. It’s open to the employer to observe, capture and save. Some social media websites allow you to post profile pictures, profile taglines, or even updates publicly available. That means the crazy picture from Vegas you made your profile picture on facebook may be searchable in Google Images. With the rise of websites that archive publicly available social media data, pictures that made brief appearances may be permanently available through a search of your name.
Additionally, anything you view or post through a company-owned device is available to the employer. That includes smartphones, regular cell phones, tablets, computers, pagers, etc. If you visit your twitter for a minute on your work computer your employer may be able to log everything. Just the fact that you are using social media during work time might be enough to negatively affect your job.
Also, don’t forget that you cannot control what other people do with the information you allow them to access. If you have co-workers or management connected to your account, they obviously can see what you allow them to see. They are free to show that same information to HR, other co-workers and management. A facebook conversation, even in private IMs, could be visible to the wrong person. Suddenly even your private conversation becomes public. As people share, repost, retweet, like, or comment on your posts, that information likely becomes available to more people. It’s very easy for this to happen. You post a comment on facebook. A co-worker you friended comments on it. Another co-worker they friended sees their comment and then tells the boss. Happens all the time.