Question:

I recently found out that some of my employees have been posting negative things about work on certain social networking sites. Is there anything I, as an employer, can do to prevent them from doing this?

Answer:

It’s true that in today’s workplace, an employee’s right to free speech sometimes conflicts with his or her employer’s interests in just the manner you are describing. For instance, there have been many instances (including several high profile cases) of employees posting negative content on their blogs, and then being disciplined or terminated as a result. The reality is that using the Internet to complain about one’s employer has become quite common. What many employees do not realize, however, is that when complaints are posted on a publicly accessible Internet page, employers have the same right as anyone in the general public to access the posting, and, except in limited circumstances, the employer can take adverse action based on the content of what has been posted.

However, employees are allowed to participate in blogs and social networking sites (e.g., Facebook and MySpace) and can express their opinions, as long as they do not represent that the opinions are those of the employer. Under California law, employers cannot discipline or terminate employees for lawful off duty conduct when that conduct does not relate to the performance of the employee’s job, or otherwise have the potential to harm the employer’s business or reputation. In addition, the National Labor Relations Act protects an employee’s right to engage in concerted activity (which could include an Internet posting) concerning wages, benefits, or other terms and conditions of their employment. Employers must therefore be careful not to impose on their employees’ free speech rights when attempting to regulate Internet use.

Employers should also be aware of the recent case regarding Houston’s restaurant chain, which held that employers who access a restricted social networking site without proper authorization can face potentially significant exposure under federal laws intended to protect personal privacy. In that case, a Houston’s employee established a MySpace page devoted to “venting” about work “without any outside eyes spying in on us.” He then invited several coworkers to join the site. The employee and his coworkers made sexual remarks about Houston’s management and customers, jokes about Houston’s standards for customer service and quality, and references to violence and illegal drug use. One of the female employees subsequently showed the site to a Houston’s manager, and when asked, provided her password so management could access the site. They were not amused, and the employee who started the site was terminated.

At trial, the former employee alleged an invasion of privacy as well as violations of the federal Stored Communications Act, which prohibits unauthorized access to electronic communications, such as Internet postings, and which includes web hosts such as Facebook and MySpace. Houston’s argued that it was not liable because the female employee had authorized management’s access to the site by disclosing her password. The district court rejected this argument on the grounds that the employee had not given her consent freely because she was worried about getting in trouble if she did not provide it.

The jury returned a verdict against Houston’s on both the Stored Communications Act claim and the invasion of privacy claim, finding that Houston’s management did not have authorization to access the site, which was for members only and was password-protected. Employers should therefore be cautious when accessing an employee’s restricted web page, especially since it may be difficult to prove that an employee’s consent for access was freely given. If an employer feels that it needs to access a restricted website, it should carefully evaluate whether the need justifies the risk. The employer should also document the voluntary nature of the consent of the employee who provides access by having him/her execute a signed acknowledgement.

In addition, employers may address the types of problems discussed above in their Internet and Computer Use employee handbook policies. Having such policies in place can help define the employer’s expectations regarding proper use of the Internet, including blog and social networking posts. Employers can prohibit employees from disclosing trade secrets, confidential information, customer lists, and other proprietary information. An employer can also prohibit an employee from defaming the employer, or attributing negative or false statements or beliefs to the employer. Also, if an employee is expressing beliefs and opinions on their blog or website, and representing themselves as an employee of the company, the employer may also restrict such activity.
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