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Investigating Employees’ Social Media Activity: 3 Permissible Approaches For Employers

Wednesday, August 2, 2017   (0 Comments)
Posted by: ACEDS Marketing Team
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Extract from Kwabena Appenteng and Littler Mendelson's article "Investigating Employees’ Social Media Activity: 3 Permissible Approaches For Employers" posted on insidecounsel.com

According to a survey conducted by the Pew Research Center in 2016, 51% of the employees surveyed reported that their employer had some form of social media policy.  In an ideal world, this would be enough; an employer would disseminate a social media policy that prohibits employees from engaging in, for example, harassing or discriminatory conduct on social media, and employees would abide by it.  The reality, of course, is far different.  Employers are frequently required to investigate employees’ social media posts that are the subject of complaints by co-workers, customers and others. 

On May 17, 2017, Vermont became the 26th state to enact a social media password protection law, which will take effect on January 1, 2018.  Social media password protection laws generally prohibit employers from requiring or requesting that an employee provide his or her username and/or password (Access Information) to their restricted social media profile.  (Notably, New Mexico’s social media password protection law applies only to prospective employees.)  In the past year, West Virginia and Nebraska also have enacted social media password protection laws; Minnesota considered a social media password protection bill during this year’s legislative session; and New York State also recently introduced its own bill.  West Virginia’s law permits employers to “require an employee to share the [social media] content that has been reported” in connection with an investigation into workplace misconduct, and Nebraska’s law permits employers to “conduct an investigation or require an employee to cooperate in an investigation” when the employer has specific information about wrongful activity on the employee’s social media page.  Similarly, the bill considered by the Minnesota legislature includes a provision permitting employers to request or require that an employee or applicant share specific social media content reported to the employer.  13 states specifically permit (or, in the case of Vermont, will permit as of January 1, 2018) employers to either request or require content from (as opposed to requiring access to) an employee’s restricted social media profile to investigate an allegation of work-related employee misconduct.  

States that allow employers to investigate employees’ restricted social media content place varying limits on the employer’s permitted degree of access.  For example, while many states permit employers to obtain only copies of reported social media posts, a handful of states allow employers to obtain Access Information as part of an investigation.  At least six states permit employees to file a private action against employers that violate the state’s social media privacy law.  Additionally, an employer’s unauthorized access to an employee’s restricted social media posts can violate the federal Stored Communications Act (“SCA”).  Employers must therefore tread carefully when investigating employees’ social media activity.  The following article provides three examples of permissible employer social media investigations.

 1. Employers Can Ask Employees To Provide Content That Purportedly Violates A Work Rule Or The Law. 

Employers will not run afoul of any state’s social media privacy law by simply requesting that an employee provide reportedly problematic content from a restricted social media page, or requesting that the employee authenticate content ostensibly from an employee’s social media profile, that the employer has received from some other source, such as co-worker.  For example, it is permissible for an employer to request that an employee provide copies of harassing Tweets, even in states that do not explicitly permit employers to investigate possible work rule violations on social media.  

Employers should only request that the employee provide a copy of, or authenticate, the content that has been reported to the employer.  So, the employer that receives a report of harassing Facebook posts should request copies of the problematic posts only, and not copies of unrelated Facebook posts.  Of course, the employee can reject the employer’s request, but the employer is permitted to ask.

Employers can only require that employees produce copies of reported social media content in a limited number of states.  These include Illinois, Louisiana, Nebraska, Oregon, Rhode Island, Tennessee, Utah, and Washington. 

Read the full article here


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