Privacy Law and Social Media: Why Employers Should Create and Update Social Media Policies

When can an employer discipline an employee who uses social media to distribute content online that could be detrimental to the employer’s business interests? The answer, of course, is “it depends.”

The law struggles to keep pace with technology. Cyberspace has expanded the “workplace” beyond the physical confines of an office building and the traditional eight-hour workday (overtime concerns are the subject for a future blog post). At minimum, employers should create, update and distribute to employees its privacy rules and policies – typically in an employee handbook with a signed acknowledgment of receipt – that reduce the expectation of privacy in the workplace. Employees should be informed through company policies that  desks, files, vehicles and even lockers provided by the employer may be subject to search. The privacy rules and policies should also extend to digital property (data) contained in and transmitted through equipment and devices the employer provides that can be used both onsite and offsite such as laptops, smart phones, email accounts.

However, employers in California and other states also must balance the risk of disciplining employees for off-duty conduct online that may be detrimental to the employer’s interests with laws that prohibit employers from retaliating against employees who engage in legal off-duty conduct.  For example, under California Labor Code Section 96(k), commonly known as “the moonlighting law,” the Labor Commissioner may pursue claims against an employer “for loss of wages as the result of a demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”

So, how does an employer minimize the risks associated with addressing an employee’s off-duty and online conduct that may be undesirable or detrimental, but not illegal? The following steps may reduce the risks:

• Create an employee handbook that specifically states the company’s privacy and social media polices.
• Reference and incorporate general policies and guidelines for employee communications transmitted by email, text or voice through internet or social media.
• Prohibit employees from creating conflicts of interest, revealing trade secrets and other specified conduct that is detrimental to the company’s legitimate business interests.
• Inform employees they will be held to the same standards and code of conduct whether they are off-duty or on-duty.