Disciplining/Terminating Employees Who Misuse Social Media
There are many scenarios that may prompt an employer to discipline or terminate an employee for his or her use of social media in the workplace. The most obvious situation is an employee who engages in illegal web-based activity while at work. Another common scenario is an employee who spends the majority of his or her on-duty time using social media sites having nothing to do with his or her job responsibilities.
Other situations may include employees who criticize a supervisor or client, post distasteful photos or videos, or call in sick and then tweet about being out and about. In the healthcare industry, an employee’s social media activity can be particularly troubling, such as when an employee decides to post information about patients on social media.
Before deciding to take an adverse employment action against an employee based on his or her social media use, employers should consider whether there are legal constraints preventing or limiting such action, as well as practical considerations. Some of the legal constraints and practical considerations employers must consider include:
Does the employer have a legal right to be viewing the employee’s activity?
Technologies exist that permit the tracking of keystrokes on a keyboard, enabling an employer/manager to discern an employee’s username and password to online accounts. Less technologically savvy employers/managers might simply approach, pressure or otherwise obtain access from an employee’s co-worker(s), who may be friends or connections of friends, of the employees.
In the first scenario, the employer runs the risk of violating the Stored Communications Act (“SCA”), which generally prohibits accessing the online account of another without that individual’s consent. The second scenario can also raise SCA issues, as well as potential violations of common law privacy torts (e.g., intrusion upon one’s seclusion). And, of course, as noted above, simply asking employees for the passwords to access their social media or online account generally is impermissible in many states.
Additional concerns arise if the employer permits employees to utilize their own personal devices for work activity. Typically called “bring your own device” (“BYOD”) programs, an employer’s ability or “right” to access information on the mobile device may be diminished when the device is owned by the employee.
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Article provided by the Jackson Lewis law firm.