3 minute read
Managing Risk
Social Media Continues to Vex the Modern Workplace
The majority of employees in the workplace use some form of social media. Even though social media use frequently occurs when employees are off the clock and is private in nature, it can result in a myriad of tricky issues for unsuspecting employers. Consider the following scenarios:
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• A female employee complains that she makes less than her male colleagues in a Facebook post
• An employee subscribes to a co-worker’s provocative Only Fans page and shows the page to all of his male co-workers
• An employee calls in sick, but posts a Facebook video from the beach later the same day
Each of these scenarios warrant a different course of action. The employee post about equal pay is protected and should not result in discipline—even if the post is factually incorrect and places the Company in a bad light. An employee who shows another employee’s Only Fans page to his co-workers may be creating a hostile environment at work—that conduct may trigger an investigation and discipline. Finally, an employee’s sick time may be protected by law even if it appears that an employee has been dishonest. In that case, the employer should resist calling the employee out on Facebook and should instead ask for medical verification based on suspected abuse of sick leave.
When confronted with an employee’s unbecoming social media activity, employers should keep the following general principles in mind when deciding how to respond.
Social Media Posts Concerning Wages, Hours, and Working Conditions May be Protected State or Federal Law
Section 7 of the National Labor Relations Act protects nonsupervisory employees who use social media to engage in protected,
concerted activity. Posts about wages, hours, or other working conditions may be protected if the post relates to a group concern or involves other employees (through comments or “likes”). Other laws may also apply. For example, under Oregon law, employees have a right to make safety complaints, to make good faith reports about employer practices that may violate the law, and to discuss conduct that constitutes unlawful discrimination or harassment. Social media posts may be protected even if the post is factually incorrect.
Company Policies Apply to Social Media Activity on Personal Accounts
Social media activity that is not otherwise protected by law and violates company policies should not be ignored. This is especially true if an employee discloses confidential information or trade secrets, engages in conduct that places the employer in a bad light, or threatens or targets employees for unlawful harassment or discrimination. If the social media activity even “touches” the workplace or involves co-workers, company policies apply. In cases of harassment or discrimination, once the Company has notice of the potentially offensive social media activity, the Company must investigate and/or take steps to end the harassment regardless of the forum or how the Company learned of the activity.
Oregon Employers Cannot Access Employee Social Media Accounts
Employee social media accounts are private and the content belongs to the employee. Employers can always review the public portion of an employee’s account but cannot access the private portion of the account through the employee’s username or password or by shoulder surfing. Further, Oregon employers cannot require or even request that an employee establish or maintain a personal social media account and an employee is not required to add the employer as a “contact” on the page. Employers can ask employees to share social media content as part of a workplace investigation if content has been reported to the employer and necessary to make a factual determination about the matter.
Dealing with employee social media issues can be challenging. For that reason, we encourage all employers to implement a social media policy and to proceed with caution. APRIL
FREDRICKSON, MILLER NASH LLP
April Fredrickson is a labor and employment law attorney with Miller Nash LLP. She advises Oregon and Washington employers on a broad range of workplace and employment issues. April can be reached at april.fredrickson@millernash.com or at 503.205.2536.
