October 8, 2014

Social Media, Technology and Employer Liability

By Sara A. Begley, Joel S. Barras, Divonne Smoyer, and Amanda D. Haverstick, Partners, Reed Smith LLP

The rapid growth in the use of social media provides great opportunities for businesses — and capitalizing on these communications tools is necessary to remain competitive in the global business environment.

Doing so, however, means that companies must be successful at navigating the many landmines that social media tools plant for them in the workplace.

Just as companies, customers and consumers regularly blog, post, upload, tweet, snap, like and share their thoughts and opinions about products and services, employees do the same—about their coworkers and company management. While these activities offer many benefits, they also create unlimited liability risks for employers.

Unfortunately, the current legal landscape in the U.S. does nothing to help mitigate this risk. There are gaping holes in the standards governing employers’ rights and responsibilities with respect to employee social media use.

The proliferating and rapidly evolving legal issues associated with workplace social media use have caught lawmakers unprepared. There is no federal statute, for example, that defines the scope of companies’ entitlement to online access to employees’ social media activity, even when that activity involves the company or otherwise impacts the workplace or the lives of other company employees.

Even worse, the void in federal statutory law has been filled by a hodgepodge of company-restrictive social media laws in many (but not all) states that set inconsistent standards from state-to-state.

Companies also face a spate of National Labor Relations Board (NLRB) rulings that largely restrict employer rights in this area.

At the upcoming 15th Annual Legal Reform Summit, the U.S. Chamber Institute for Legal Reform will release a paper that sheds light on all of these issues. The paper, which we have had the privilege of co-authoring, will identify the legal perils and pitfalls for employers and will caution federal, state and local governments against knee-jerk reactions that fail to fully consider the unintended consequences their actions may have on U.S. businesses.

Specifically, the paper will include:

(1) A discussion on why and how the increase in workplace social media use presents U.S. employers with considerable employment law liability risks, including highlights of the “expert testimony” offered to the Equal Employment Opportunity Commission on social media’s impact on enforcement of U.S. employment laws;

(2) Details of the inconsistencies among state privacy statutes with respect to employers’ rights to access employee social media accounts when conducting internal investigations—and the difficulties those statutory variations create for employers;

(3) A review of the key NLRB rulings concerning employer social media policies and the related rights of employees in this area; and,

(4) The identification of the high-risk commercial areas for U.S. businesses associated with workplace social media use.

We look forward to the release of this paper and a discussion of these issues in more depth at the 15th Annual Legal Reform Summit, to be held October 21, 2015 at the U.S. Chamber of Commerce in Washington, D.C.

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