Many of you may be like me and have had to deal with employees using social media while at work. While the small issues I have dealt with relate more to productivity than those I describe here, I thought it was an interesting topic we all deal with. The prevalence of social media, including postings that are meant for employment-related topics in particular, has led to an increase in litigation on the subject between employees and their employers. The scenarios leading the parties to the courtroom are as varied as one might imagine. A company fires a worker over her criticisms of the boss that she posted on Facebook. Repeated attempts by a manager to “friend” a female employee on Facebook eventually leads to allegations of sexual harassment. A disappointed job applicant sues when a job offer is retracted after a hiring manager turns up something about the applicant on Twitter that the manager finds disturbing.
In addition to scenarios in which a worker loses his or her job because of something appearing in social media, litigation may ensue against an employer if its supervisory officials go too far in digging for dirt by this means. For example, two restaurant workers won a monetary settlement after having sued their former employer for gaining access to postings on a password-protected Myspace page set up as a chat group for employees only. What was found on the page eventually led to the workers’ termination. The case was settled after a jury found that the employer had violated the federal Stored Communications Act (SCA).
The employees’ managers had violated the SCA by knowingly accessing the chat group on Myspace without authorization. Although a fellow employee had provided her log-in information to one of the company’s managers, she had not authorized access to the chat group by any of the company’s managers. She also felt that she had been coerced into giving her password to her manager, as she felt that she would have been in trouble if she had not done so.
Using the employee’s password, the company’s managers accessed the chat group on several occasions, although it was clear on the website that the chat group was intended to be private and accessible only to invited members. Finally, the managers continued to access the chat group even after realizing that the employee had reservations about having provided her log-in information.
Since e-mail first came on the scene, similar cases have arisen over what was or was not appropriate when employees used their company-provided computers for sending e-mails. One preventative measure for employers has been to create a clear written policy on the subject, followed up by informing and training the employees. Likewise, an employer’s best protection against potential liability stemming from social media may be to establish a policy that clearly spells out the ground rules for the use of social media.
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