2005 was the year I signed up for my Facebook account. It was really cool to me because I could stay in touch with friends from high school and contact them at the click of a button. Years later, LinkedIn and Twitter evolved. Much controversy surrounds the legality of whether employers should be able to use the information against employees for purposes of hiring, employment practices or even requiring employees to provide account login information. Giving employers social media login information constitutes an infringement on privacy for employees, especially if the employer puts the employee in the position by duress or threatening disciplinary action up to including termination.
Louisiana passed a law in 2014 which forbids employers from requesting social media account information of applicants or employees. Current or former litigation on social media will continue to pave the way for new laws and regulations for employers to follow. Heath Morgan and Felicia Davis wrote a detailed article on Social Media and Employment law advising some courts have found pubic social media are fair game for employee investigations, particularly when the employer obtains the information without asking or pressuring an employee to provide it (Morgan and Davis, 2013). It is comforting to know there is the ability to investigate employees negligent activity through social media without infringing on privacy laws.
An issue was presented to me earlier in the year surrounding how an employee was to handle their name being used in someone elses social media post and how it was offensive and insulting. I advised the employee how social media is in fact protected by the first amendment right of free speech; therefore, there was no protection or action I could offer the employee. I did advise the employee how they would need to speak to offender and advise him/her to please remove the social media post as it was offensive and inappropriate. The employee said the other person would most likely refuse to take it down. At the moment he told me this, I informed him to then tell the person if they refused to take it down, he would seek legal advice to see if it was legally actionable for defamation since the statements were not accurate and were blasted for others to see.
The employee ended up not following through on my advice and the entire department ended up getting wind of the post. I unfortunately could not intervene and force the employee to take it down as they were exercising their free right of speech. If I forced the person to remove their post, I would have just done what the law calls an “unfair labor practice.” Even though the hospital does not have a union, the employer must not prevent employees from engaging in concerted activity as well as following any freedom. With other employees from the hospital commenting on the post, they were essentially cyber-bullying the employee without the employee being “tagged” in the post.
I left the facility before I could intervene, but wanted to tell the employees they were putting themselves at risk for bullying this employee on social media. Once a post is put out there, there is a permanent record of it to fall back on even if the post is deleted. Unfortunately, the law prevents employers from involving themselves in social media matters unless the employee is posting something while at work (Like a selfie with a patient or a video of themselves disclosing confidential company information). The article written by Heath Morgan and Felicia Davis also states how employees should have narrow social media policies and keep it to legitimate business interests. The hospital lacked a policy at the time, which prevented me from having any real guidance from the hospital.
If there is any advice I can give any young professionals, it would be to not put your frustrations about work or any work related matter on Facebook or any other social media platform. If it is something which needs to be discussed with others (like pay, working conditions etc), do so in a manner which will help the situation instead of make it worse. I would also advise young professionals to discontinue taking selfies at work or taking pictures in their offices. The ability to catch information which does not belong on social media or causes a privacy issue can clearly put the person at risk.
For further information on the topic, here is a link to the article I referenced in my text above: http://www.americanbar.org/content/dam/aba/events/labor_law/2013/04/aba_national_symposiumontechnologyinlaboremploymentlaw/10_socialmedia.authcheckdam.pdf