There is a quite a bit (rightfully) being written about the challenges of addressing social media related employment actions (hiring / firing); I’ve written some of these myself.
But there may be a key distinction between how an employer could or should address the use of social media by employees and how they must or might police the use of emails—specifically the corporate email system.
Social Media vs. Email Communications
The distinction between official workday communications and the personal use of social media is eroding, but some important distinctions still exist.
Social media is a means of keeping up with the family, finding a mate or sharing thoughts/ideas/images with peers. It is not, at this time, the primary means by which workers at most organizations officially communicate with each other or with the company’s clients or customers.
By contrast, most organizations have a specific email address and assign email accounts to many or most of their workforce. They also generally provide access to this system via a company server and provide the devices (desktops, laptops and/or mobiles) for communication. This is important because ownership of the server may lead access to and ownership of what is archived the server.
Erosion is Inevitable
With workers armed with mobile phones and other personal devices with their easy access to social media and the expanding work day, potential conflicts now seem inevitable and highlight the need for organizations to have social media policies for the workplace.
A recent study indicated that 64% percent of employees visit non-work related websites each day, with the top sites being:
- Tumblr (57%)
- Facebook (52%)
- Twitter (17%)
- Instagram (11%)
- SnapChat (4%)
Distinctions Not Extinct, Yet
While employees may use both email and social media to communicate, employers must be careful not to confuse the two. When employers tread on personal (I almost said “private”) employee communications, they have to do so tenderly so as to avoid violating the individuals’ right to privacy and, in the eyes of the National Labor Relations Board, to avoid infringing on the employees’ right to legally-protected concerted activities—whether they use their own equipment (mobile phone or tablet) or the company’s.
The same may not be true of corporate emails—where the employee may have no reasonable expectation of privacy when sending communications over the company’s server.
As recently discussed by Michael Schmidt, a partner at Cozen O’Connor, in a post on the firm’s Social Media Employment Law blog, a company successfully defended a claim of wrongful termination in part by establishing that a series of “disrespectful” corporate emails from the employee to her supervisor was the reason for the termination. In this decision, the court didn’t focus on the method of communications email (versus social media) but accepted without question the company’s use of these materials in their defense. Whether it would have gone the same way with disrespectful LinkedIn posts is an open question.
So as the means and methods of communications continue to evolve, the law may, or may not, move in lock-step with these changes. These fast moving change can make all difference when it comes to evaluating exposure and determining proper conduct by an employer.