What do you do when you discover an employee has made a disparaging, expletive-laden remark about their boss on their personal Twitter account? Or shared a pic on Facebook of an unflattering moment at a company-sponsored event for clients? Or used their phone to IM highly confidential information to a group of co-workers?
The wrong response means the employer can wind up defending itself in court or before the National Labor Relations Board.
While most employers by now have in place a policy (or several policies) governing workplace communications, "those policies don't often keep up with the technology," Seyfarth Shaw's Karla Grossenbacher remarked during her discussion of the "e-workplace" during the National Employment Law Institute's annual Employment Law Update in Washington, D.C.
The two primary federal laws governing electronic communications—the Electronic Communications Privacy Act and the Stored Communications Act—were enacted in 1986, virtually another era where communications technology is concerned.
While case law dealing with emails that are sent using a company account and that reside on the employer's own server is fairly well settled, courts are grappling with disputes involving technologies that didn't exist at the time, she noted.
For example, employees' right to privacy when it comes to their personal, web-based Hotmail or Gmail accounts, isn't clear in situations where the employee has accessed the account using an employer-provided device or has stored their password or login information on it and failed to remove the information before leaving the company.
Courts are having to deal with the issue in situations where employers suspect former employees of malfeasance or competition and want to verify their suspicions, she observed.
In general, "texts appear to have less protection than emails based on court rulings" to date, she said.
As "offline" communication such as texting and group messaging apps becomes increasingly popular in the workplace, it's presenting a host of problems for employers, Grossenbacher said. For example, texts aren't preserved like company emails are, so an employer may have difficulty complying with a litigation hold policy or obtaining them during discovery.
Grossenbacher noted that the issue of employee texts as evidence recently arose in a wage-hour class action currently pending in the U.S. District Court for the Southern District of California (Kellgren v. Petco Animal Supplies, No. 3:13-cv-00644). Ruling on a motion to compel, the court said the company wasn't under any obligation to preserve texts that were sought by the plaintiffs, as its policy limited authorized workplace communications to in-person, on the phone, or by email.
She believes that more employers who are aware of the risks of workplace texting will resort to such a policy. If texting between workers is permitted, she recommends that employers have in place a preservation policy, such as backing up all communications made on company smartphones.
But the company smartphone is going the way of the company car... With the popularity and benefits of BYOD comes a new set of concerns employers need to be aware of, Grossenbacher said. At the heart of the issue is the fact that, in a BYOD workplace, the employer has very limited control over these devices, even though they're being used to access company systems and data.
Grossenbacher recommends the following BYOD best practices:
• Limit BYOD to certain business groups or types of employees, rather than make it universally permissible.
• Reserve the right to access employees’ personal devices for specified reasons, such as litigation, a workplace investigation, government inquiry, etc., and ask employees to sign an authorization to this effect.
• Require all data to be encrypted.
• Have in place a data security protocol, such as requiring the employee to install malware safeguards and download security patches, and prohibit certain high-risk apps.
• Adhere to a "departing employee" protocol, such as a remote-wipe feature.
• Have related policies that address such issues as use during non-work hours by non-exempt employees, restricting use while driving, and confidentiality agreements.
The employer should be sure to obtain signed policy acknowledgements, she added.
Regardless of whether an employer has a unionized workplace, the NLRB has authority to decide whether an employer's response to such social media activities-- i.e., discipling or terminating the employee -- violates the National Labor Relations Act, specifically those protections for workers who engage in protected concerted activity.
The question is whether a specific social media activity constitutes protected concerted activity in the eyes of the board, Grossenbacher explained. The board, whose decisions may be upheld or overturned in federal court, has held that not only posting comments about the workplace or working conditions on Facebook but "liking" such a post can constitute protected activity, she observed.
Employers should familiarize themselves with the board's two-part test for assessing social media policies (as set forth in Costco Wholesale Corp., 358 NLRB 1100 (2012)) and review and revise those policies that may be vague or overbroad in order to limit their exposure to an NLRA violation, she recommended.
For example, even a seemingly straightforward policy that prohibits "disrespectful conduct" could run afoul of the board's test because protected activity, given its nature, could be considered discourteous. A policy that prohibits employees from sharing confidential or sensitive information may be considered unlawful, since this ban could encompass discussions about compensation—a protected activity.
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