Most of us now have access to the internet 24/7 no matter where we go or what we should really be doing with that time. And that includes your employees.
You want employees to spread the word on social media about your great products or services, but you don’t want an employee to say the wrong thing and spark a public relations crisis.
You want your employees to work hard and be productive, but you don’t want to micro manage how they spend every single working moment.
You want to be known as a great place to work, but you don’t want your employees to take every grievance with management to the court of public opinion.
How should your HR policies address these issues? What do you tell your employees about their use of the internet, email, and social media while working for your organization?
Be Careful What You Prohibit
At the federal level, the National Labor Relations Act (“NLRA”) protects the ability of workers to engage in “concerted activity,” i.e. to discuss their employment and working conditions with each other, including information about their pay. This protection applies regardless of whether the workers are in a union or not. Under the NLRA, blanket internet policies that could be interpreted as limiting workers’ rights to discuss workplace conditions or even policies that might have the effect of discouraging such conversations have been successfully challenged. For example, a sentence in your employee handbook telling workers not to discuss their pay and raises with each other is almost certainly problematic. But what about telling workers not to discuss the company on social media? Such a policy may seem like an easy way to avoid taking sides in controversial issues or to minimize the airing of “dirty laundry” in public, but these policies almost always run afoul of the NLRA because they limit the ability of workers to discuss their working conditions with each other.
Avoid Even the Appearance of Retaliation
Employers also need to be careful to avoid even the appearance of retaliation against whistleblowers. Almost every employment law prohibits employers from retaliating against workers who allege violations of employment laws. This can make it challenging to deal with an otherwise problematic employee who takes to social media to complain about the workplace, i.e. a lack of paid sick leave during the current pandemic or how well your workplace is enforcing social distancing and face coverings. Any disciplinary actions you take against such an employee will raise questions about your motive: Were you disciplining the worker for their poor job performance or because you didn’t like what they said on Facebook?
Acknowledge the Possibility of Monitoring
Finally, employers should be aware of both the federal Wiretap Act and the Stored Communications Act (“SCA”). Under the federal Wiretap Act, employers cannot monitor employees’ telephone calls without a legitimate business purpose unless the employer has consent. Similar, the SCA prohibits employers from intentionally accessing their employees’ electronic communications without authorization. Because of these laws, your email and internet policies should not only make it clear that your organization’s electronic systems are subject to monitoring, but your employees should also acknowledge receipt of the policy. (And while monitoring email and internet use at work is generally permissible under these laws, the SCA does draw the line at accessing secure sites, including social media pages and emails like Gmail that require you to enter the employee’s personal password to gain access.)
Ohio Law and Workers' Privacy
At the state level, Ohio doesn’t have a specific statute addressing these issues in a workplace context.* Generally, workers in Ohio do not have an expectation of privacy in devices owned by their employer. But workers have raised invasion of privacy claims against their employers when the monitoring has extended into the employee’s private accounts or where the employer has published information learned about an employee’s private affairs.
So what’s an employer to do? Rather than borrowing a broad policy from the internet, focus on what is really within your company’s control (and what could have a significant impact on your business).
Email, internet, and social media use at work are necessary in our modern world, but they can lead to a surprising number of traps for employers. If you need to review your existing policies or implement modern policies:
* Ohio does have a state wiretap lap generally prohibiting the intentional interception of electronic communications, but there is no state law governing Ohio employers and their monitoring of their employees’ internet use at work.