Ohio lawyer Jon Hyman provided some insight yesterday on the NLRB’s latest social media case. The short of it is an employer is alleged to have fired five employees because of negative Facebook posts about employment conditions. Others have weighed in on the propriety of the firing, but from my perspective that’s not the interesting part of the story.
The interesting part of the story is how did the employer know about the posts? Did an employee report the communications to management? Did a manager, who was a Facebook friend of the employee, see and report the communication? Was the employer monitoring these communications? Does a manager who observes these types of communications have a duty to report them to the company?
Most employers do not want to create, or at least leave the impression that "big brother" is watching its employees shades of George Orwell’s 1984. That said, assuming an employer can properly review an employee’s tweets or updates, should they?
Maybe (typical lawyer answer). There is no one size fits all answer. There is a difference between being nosy and protecting a business. There are some good reasons to do so: (1) ensure nothing improper is going on in the workplace; (2) monitor morale in the workplace; (3) ensure there are not improper disclosures about company business including customer and confidential information; and (4) monitor the possibility of employee departures. There are also a lot of reasons not to do so, including privacy and other legal ramifications and the "1984 effect" where there is a sense in the workplace that employees are being watched.
As social media communications continue to rise employers are going to have to evaluate whether a formal policy on monitoring social media communications is necessary. Employees also need to think about whether it makes sense to friend or follow their supervisors. There is no right or wrong answer, yet.