Most employers have policies in place governing employee behavior during working hours, but there is a growing trend toward expanding employee surveillance into off-duty conduct, including personal social media use during non-working hours. This movement is due in part to legitimate concerns that employees’ personal use of social media may be harmful to employers, both legally and from a public relations standpoint. Whether done inadvertently or with malicious intent, social media is frequently used to disclose corporate trade secrets or confidential information, or as a forum to criticize an employer. When considering whether to monitor employees’ social media use, however, employers must be mindful of some potential pitfalls.

Social media posts are considered public speech and, in some cases, even clicking “like” in response to another’s post has been considered speech. However, it is a common misconception that the First Amendment grants every person the right to say or post every thought that comes to mind without consequence. In reality, the First Amendment only guarantees that the government will not limit the free speech of its citizens. However, the First Amendment provides no speech protections in private sector workplaces, and thus private employers have much wider latitude to take disciplinary action against employees for their online activity.

While First Amendment rights do not attach to speech in a private sector workplace, the National Labor Relations Act does protect an employee’s right to engage in certain forms of speech and expression defined as “protected concerted” activities. What constitutes protected concerted activity is relatively broad but must involve a term or condition of employment (i.e. wages, hours, etc.) and must occur for the group’s mutual aid and protection (i.e. more than one employee). An employer commits a violation when it engages in conduct that reasonably tends to interfere with the free exercise of employee rights under the Act, regardless of the employer’s intent. Thus, an employer that discovers through social media that employees are engaging in conduct or speech in an effort to change their workplace conditions, even if adverse to the employer, must refrain from taking any adverse action against those employees based on this information or otherwise risk violating the Act.

It is important to note that while other states have laws that protect off-duty speech and lawful conduct, New Jersey has no such law. Therefore, while New Jersey employers seeking to discipline employees for social media use need not concern themselves with potential violations of state off-duty conduct laws, they nonetheless must consider the application of the NLRA before taking disciplinary action.

Privacy interests

There is no law preventing employers from viewing information in the public domain. However, New Jersey law prohibits employers from requesting employees to provide password and username information or in any way provide the employer access to a personal account. While not formally defined, the italicized language seemingly encompasses several different means of accessing restricted social media content, such as: “shoulder surfing” an employee’s restricted, personal social media account; compelling an employee to accept an employer’s “friend” request to allow access to a restricted account; and requiring an employee to change the privacy settings on a restricted account to provide the employer with access to it. Therefore, if employers are going to monitor employees’ social media profiles, they need to limit those searches to public information only, and avoid accessing, or attempting to access, information from personal, restricted accounts.

While monitoring social media activity in the public domain is legally permissible, employers must nonetheless be careful not to use – or even appear to use – any information obtained online in a discriminatory manner. Even the inadvertent discovery of an employee’s race, age, sexual orientation or other protected status may serve as the basis for a lawsuit if the employee claims they were subject to adverse action not as a result of a legitimate business reason, but because the employer discovered they were a member of a protected class after conducting the online search. Additionally, employment decisions based upon an employee’s or applicant’s lack of social media presence may invite age discrimination claims. To avoid these potential claims, employers must have a clear business purpose for conducting online searches, as well as parameters in place to ensure that the information obtained is only shared with those on a need-to-know basis.

A properly drafted and uniformly enforced social media policy is an employer’s most effective tool in protecting itself against legal liability. The policy should notify employees that the employer monitors their public social media platforms, identify the legitimate business purpose(s) of the policy, and further state with whom the information will be shared. Managers and supervisors should be trained to implement the policy and ensure it is being deployed fairly and consistently across all employees.

Lisa Gingeleskie is a partner in the Labor, Employment & Employee Benefits group at Lindabury, McCormick, Estabrook & Cooper PC, based in Westfield.