Social Networking & Computer Privacy
Generally, employers have the right to monitor their employees use of the Internet (including visiting social networking sites, checking e-mails, and instant messaging) on computers owned by the employer, during employees on-duty hours. Although federal laws prohibits employers from discriminating against a prospective or current employee based on information on the employees social networking site or personal blog relating to their race, color, national origin, gender, age, disability, and immigration or citizen status, employers can and do use information on such websites as a method of conducting background checks. Employees should therefore be conscious of what information they display on social media websites. To learn more about social media and computer privacy, read below:
Social media is considered any form of electronic communication through which users create online communities to share information, ideas, messages, and other content. Social media includes internet forums, social blogs, wikis, microblogging (e.g. Twitter), social networks (e.g. Facebook), and many others. Social networking is the use of social media to communicate with others.
In the United States, more than 2/3 of online adults use a social networking site. As a result, many employees have made comments and posted media to these websites about their employer, their employment status, and workplace issues. According to a 2007 survey, 28% of employers have fired employees for misuse of e-mails, while 30% have fired employees for misuse of the Internet. Half of all employers surveyed said they were concerned about their employees browsing social networking sites while at work. In some instances, employees have been terminated due to their comments and posts on social media websites. In other ways, employers have used social media to conduct some sort of background checks on potential hires.
Employers want to ensure a potential hire is qualified and will reflect well on the company. As a result, many employers conduct a background check that includes social media. An online profile can provide information on professional credentials, career objectives, maturity and judgment, abuse of drugs or alcohol, current employment status, and other red flags.
However, there is potential discrimination if employers use personal information such as age, race, disability, religion, national origin, or gender to make a hiring decision. As a result, state and federal laws explicitly prohibit that kind of conduct.
There are no federal laws that prohibit an employer from requiring an employee or job applicant to provide their username and password for social media accounts. In 2013 and 2014, twenty states enacted legislation regarding employers access to employees and applicants usernames and passwords:
- Delaware (employer must give notice to employee prior to monitoring or intercepting any e-mail or electronic transmission)
- Maine (directs study of social media privacy in schools and workplace)
- New Jersey
- New Mexico
- Rhode Island
- Vermont (authorizes study)
However, the laws vary from state to state, and do not provide the same level of protection in each state. Other states are considering legislation; you can track these bills by visiting the National Conference of State Legislatures website. For more information on this rapidly growing area of the law, contact an employment lawyer in you area.
Being asked for your social media password by your employer or potential employer can be a nerve-wrecking experience. As a result, you should be prepared for this question. Here are some things that you can do instead:
- Create a fan page that is purely business and bring that up;
- Make sure you only put information on Facebook that portrays you in a positive and professional light (but remember: you cannot control what a friend might post);
- Say you don’t have a Facebook page (although they may search for you);
- State you would be glad to bring up your LinkedIn or Google profile instead as that is business related;
- State that Facebook is like a diary, something to be opened only by people with authorization;
- Ask them to bring their page up and then search for you.
Yes, and most employers do. Employers concerned about lost productivity, excessive bandwidth usage, viral invasions, dissemination of proprietary information and their liability for sexual and other forms of harassment when explicit documents are exchanged via e-mail or the web, believe that monitoring is an important deterrent to inappropriate Internet and computer usage.
According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. Therefore, employers that provide you with a computer system and Internet access are free to monitor almost everything that you do with the computer and Internet access with which you have been provided. This is especially true when an employer gives you a written policy regarding the monitoring of your computer use. Courts have generally agreed that an employee does not have a reasonable expectation of privacy when using a device owned and issued by the employer. In one case, the court ruled that even though the employer told its employees that their e-mail communications would not be intercepted, and that the employees would not be reprimanded or terminated based on the contents of their e-mails, the terminated employee could not assert that his reliance on these employer promises should prevent his termination by the employer.
Some union contracts or state laws (such as those in California), may limit an employer’s ability to monitor your computer activity. Only Connecticut and Delaware require employers to notify employees that their e-mail is being monitored, while Colorado and Tennessee require state and other public entities to adopt policies regarding the monitoring of employees email.
Otherwise, there are few laws that have been enacted to protect your computer privacy at work.
The technology exists for your employer to monitor almost any aspect of your computer usage, such as:
- Internet use
- Software downloads
- Documents or files stored on your computer
- Anything that is displayed on your computer screen
- How long your computer has been idle
- How many key strokes you type per hour
- E-mails (outgoing or those sent within your office)
If you can do it on your work computer or on devices such as PDAs provided for your work use, then you can expect that your employer has the ability to monitor it. Check your employer’s policies and/or personnel handbook to see if your employer has a specific policy about what monitoring it does. Even without a policy, however, your employer still may be monitoring your computer and Internet activity.
Yes, with certain limitations. Although some federal laws (Federal Electronic Communications Privacy Act, 18 U.S.C. 2511; Electronic Communication Storage Act, 18 U.S.C. 2701; Computer Fraud and Abuse Act, 18 U.S.C. 1030) and state laws generally make it illegal for employers to intercept private e-mail or use your personal log-on and password to access e-mails on an Internet Service Providers’ server, employers may monitor e-mail from the work e-mail address provided to you, or monitor any e-mail stored on your work computer. Only two states, Connecticut and Delaware, require employers to notify employees that their e-mail is being monitored.
Certain companies even have software that aids them in monitoring your e-mail. Such software pulls up any e-mails that mention “key words” such as:
- Sure thing
- Social Security Number/SSN
- Patient record
- Client file
If you want to send a private e-mail, it is best to use non-work e-mail accounts such as Yahoo! (R), MSN Hotmail (C) or Gmail (TM). However, these e-mail accounts can sometimes be monitored as well. In one case, an employer searched through an employees personal e-mails accounts on a company computer, gaining access to the accounts due to the storage of the employees user names and passwords on the computer. Although the employee won the case, employees should be aware of the potential that any saved user names and passwords on a company computer may be subject to monitoring by the employer.
It is best not to discuss non-work related or private issues at all while using your office computer, if you are concerned that your employer may be monitoring your computer activities or your employer’s policies permit computer and Internet monitoring.
Yes. Outgoing e-mail, or e-mail going from one co-worker to another, can be used as the basis for firing employees. Over 28% of companies say that they have fired employees for misuse of office e-mail or Internet usage, and so far, courts have usually sided with the employers.
Be careful about saying negative things about your bosses, coworkers, or the company for which you work in e-mails, especially when using your work address to send this information outside the company. Also, be very careful to check your address line before sending your e-mail, as workers have been very embarrassed – if not out of a job – when copying a private e-mail intended for only one or a few individuals to the company intranet, large distribution list, or listserv.
You may have some protection if you are communicating with your coworkers about work conditions, under laws that protect an employee’s ability to engage in “concerted activity.” If you have been fired or disciplined for complaining about your working conditions to other coworkers using e-mail, or for using your work computer for union organizing activities. Consult an labor and employment lawyer in your area to determine whether your rights have been violated. Similarly, if you use e-mail to complain about discriminatory behavior or blow the whistle, you may be protected under whistleblowing and/or antiretaliation laws.
Yes. Employers are concerned about their liability for sexual harassment and have fired workers for visiting sexually explicit and/or pornographic websites at work. They also worry about the loss of productivity caused by Internet surfing during work hours, and have fired employees for using the Internet for non-work related activities such as online shopping or sports sites.
As it is possible — and even probable in many workplaces — that your online activity is being monitored, be sure you know what your employer’s monitoring policy is before engaging in activity during work time that is not work-related. You should not visit any websites that you would not want your employer to see or that your co-workers might find offensive. While most employers do not mind if your personal internet use is occasional and doesn’t interfere with your work, some employers do mind, and expect you to confine your personal Internet usage to non-work hours.
11. Can my employer legally fire me for the content that I post on my personal website, blog, social networking, or social media website?
Generally, an employer can fire you for having a personal website or blog that it deems inappropriate, with very limited exceptions. Even if you have a non-work related website that you don’t access from your office, employers can fire you if they feel the content on your personal site or blog is offensive to them or to potential clients, or reflects badly on the company. For more information about how to blog without risking termination, see our site’s page on off-duty conduct.
California, Colorado, Connecticut, Illinois, Minnesota, Nevada, New York, North Dakota, and Tennessee all have laws that prohibit employers from firing an employee for engaging in lawful conduct, or for using lawful products (ex: cigarettes) during off-duty hours. However, courts in these states will weigh the employee protections against an employers business interests, and typically rule that those interests outweigh employee privacy concerns and permit the employer to be exempt from the law. Some laws provide explicit exemptions for employers: in Colorado, employers are exempt if an employees off-work activities relate[s] to a bona fide occupational requirement, or is reasonably and rationally related to their work activities.
Some state laws regarding personnel records may protect an employees off-duty Internet activities. For example, in Michigan and Illinois employers cannot gather or keep information of an employees communications or non-employment activities, without the employee consent. However, exceptions exist in both states that allow employers to keep records of an employees criminal activity, activity on the employers property, or activity on the employers time which may cause damage to the employers business. Outside of these exceptions, employers may be liable for violating these laws or retaliating against an employee on the basis of improperly gathered information.
Although an employer might be able to legally fire you for your content on social networking and social media websites, the National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers’ social networking and social media usage can be protected if it is “concerted activity” for the purpose of collective bargaining, mutual aid or protection. Thus, protesting about working conditions might be protected, while complaining about a boss might not be.
An employer may be violating federal law if they access Facebook posts of an employee, when the employee intended the posts to remain private by adjusting the privacy settings to limit access only to the employees Facebook friends, the employer is not a Facebook friend of the employee, and they access the posts without authorization, or intentionally exceeds authorization. In Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp.2d 659 (D. N.J. 2013), a co-worker of a registered nurse took screenshots of the nurses Facebook wall posts, and sent them to a hospital manager. The court ruled that Facebook wall posts are electronic communications, transmitted by an electronic communication service, placed in electronic storage, and can be deemed private if the Facebook user set her privacy settings to limit access to information on the users Facebook profile. However, because the co-worker who provided the screenshots to the manager was a Facebook friend of the nurse, an exception to the Stored Communications Act applied, meaning the hospital for which the manager worked was not liable for any wrongdoing under the Act.
For more information on this rapidly growing area of the law, contact an employment lawyer in your area.
Generally, you do not have that right in the workplace. Only government employees have free speech protections and those are very limited. As a private employee, you can be fired for your speech in the workplace or outside of it.
For government employees, Liking a page may be protected speech under the First Amendment. In one recent case, a federal appeals court decided that a government employee who worked for a sheriff, and who clicked on Like on a Facebook Page showing his support for a different candidate for sheriff, was speaking as a private citizen about a matter of public concern, did not disrupt the work of others in the office, and his interest in showing support for the candidate outweighed the current sheriffs interest in maintaining effective and efficient public services. The court therefore viewed the Liking of a page on Facebook as speech that can be entitled to First Amendment protections for public employees.
13. Can my employer force me to promote their products or services on my personal social media accounts?
Possibly, but your employer runs into the risk of violating certain Federal Trade Commission (FTC) rules and regulations on advertising. Comments made to Facebook or Twitter by an employee could be viewed as advertisements or endorsements subject to FTC regulation. Additionally, the comments might be considered as unfair and deceptive acts in commerce.
Yes. Employers also have the technology to read and monitor your instant-message conversations on such services as AOL Instant Messenger (R), Windows Live Messenger (TM) etc. Signs show that more and more employers are using this technology.
No. Information that you have deleted from your computer is often available for your employers to monitor. Even though they appear erased, documents and e-mails are often permanently backed up on the office’s main computer system.
Even worse, deleting personal documents from your work computer may violate the law, depending on the manner and context in which the files were deleted. One recent case held that an employee who used a program designed to clean off the hard drive and permanently erase documents (a “secure delete” program) before returning a computer to his employer violated federal hacking laws designed to prevent damage to networked computers. Another held that a worker erasing documents from a company-owned computer after filing a lawsuit against his employer was in essence tampering with important evidence in the case.
Before permanently deleting any documents on your work computer, check with an employment lawyer in your area first, especially if you have been terminated and/or contemplate filing a lawsuit against your employer.
16. I feel that my employer’s computer usage policy has violated my privacy rights or might be discriminatory. What can I do?
While employers have considerable latitude in monitoring computer and Internet usage, if you feel that your privacy rights have been violated by your employer or believe the enforcement of your employer’s policy is discriminatory, contact your state department of labor, or a private attorney.
In this digital age, lawyers will investigate or gather evidence anywhere, including your social media. As a result, you should be cognizant of your social media use. Tweets, posts, e-mails, pictures, and videos may be used against you. Exercise caution by:
- Limiting your privacy settings;
- Not accepting friend requests from people you do not know;
- Limiting your electronic communications to people you know and can verify.
- If a case has been filed, let your attorney know of things on your social media accounts that may hurt you, but get your attorney’s advice about whether to delete anything, as there may be restrictions imposed by the Court once a case is filed.
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