Social media in the workplace

For employers

Employers should exercise caution and good judgment when regulating employees’ social media use. Both Oregon and federal law place limits on social media policies in the workplace, so employers should understand what protections exist to avoid compliance risk. In short, employees generally have more leeway to engage in watercooler conversations – either in person or online – than many employers realize. Developing and communicating fair, reasonable policy that relates to business necessity goes a long way.

Oregon social media restrictions

Under Oregon law (ORS 659A.330), employers may not force employees to provide access to password-protected social media accounts (unless, of course, the employee is managing the company’s social media properties). An employee’s social media accounts are theirs alone, and an employer cannot compel an employee to advertise or promote its business on their personal accounts. Note, however, that employers may access employee’s accounts when conducting workplace investigations.

Harassment, retaliation and privacy

Employers have a duty to protect employees from discrimination, harassment and retaliation – including when it’s happening online or after hours. An employee may be harassing another online, after hours, but it’s fair game for a thorough, well-documented investigation. When an employer learns of potential harassment or retaliation, it should provide the alleged victim with a copy of its workplace policies (in keeping with the Workplace Fairness Act) and promptly investigate. If the employer finds substantial evidence of wrongdoing, it should take corrective action that’s sufficient to prevent the harm from happening in the future.

The online watercooler

Employees have a right to talk about working conditions, including engaging in online conversations that might at times be frustrating for employers and management. Even in a non-union workplace, the National Labor Relations Act (NLRA) provides protection for workers to discuss larger workplace issues that could reasonably result in the formation of a union. Topics could include workplace safety, compensation, hours, second-guessing strategy or more. See more here. Before disciplining an employee for this broad category of protected conduct, it’s always a good idea to check with an attorney.

Developing and communicating social media policy

Before disciplining an employee for a social media infraction, an employer should ask itself several questions. Has the employer established a reasonable and objective standard for social media conduct, based on connection to the job? Has the employer clearly communicated the policy? Has the employer enforced its policy in a fair and non-discriminatory way? The more warning an employer provides – and the more it has documented these efforts – the greater the ability of employers to regulate off-duty conduct, as long as the policy has a clear link to business necessity and operations.

As an employer, I want to do my due diligence before making a key hire. I have a top-tier applicant who looks like a great match for the essential duties of the job, but I want to do a social media search to get a sense of who they are and what makes them tick. Is this fair game?

Employers should exercise caution when performing social media checks on potential employees. The reality is that many employees tend to overshare online, including providing a lot of information that relates to protected classes like medical information, family relationships, religion and sexual orientation. Best practice is to consider engaging a third-party outside the organization to conduct a background search, and establish clear boundaries about what you want to know – and what you do not. Poor decision making is fair game for a search, but information related to religion, disability, sexual orientation or other protected class is not.

We have a policy of requiring medical verification for sick time when we have reason to suspect an employee is abusing sick time. One of our employees let us know that another employee – who just this morning called in claiming to be sick with the flu – was posting pictures of himself skiing and seemingly having an all-around awesome time. Can I check his public social media accounts to verify and (potentially) discipline accordingly?

Under Oregon’s sick leave law, employers that have reason to suspect abuse may seek medical verification, as long as they cover any out-of-pocket expenses. ORS 659A.306. Reports from a co-worker that the allegedly sick employee is instead skiing likely warrant a request for an explanation and medical verification. While employers may include a review of social media in a legitimate investigation of policy violations, keep in mind that employees need not provide the actual passwords or ongoing access. Finally, it pays to keep the search narrow minimize the possibility encountering information relating to protected class. After all, there are things that can’t be unseen.

My employee is spending a lot of time on his phone posting to his social media account. Since he should be working, it’s causing tension with other employees. Can I discipline the employee for wasting time on social media instead of performing the duties of the job?

Yes. Employers have a right to develop policy that makes clear what social media use is allowed at work and under what conditions. Although an employer can discipline an employee for failing to meet objective standards, it should ensure that the policy is communicated in advance and enforced in a fair, non-discriminatory way.

Of course, today’s workforce is more connected to social media than ever, so it pays to focus your policy on smartphone etiquette where it matters most. This could include requiring ring tones be set to silent, prohibiting camera use where appropriate and banning personal use during meetings or with customers.

My employee is claiming that I’m violating her rights by preventing her from publicly commenting on a recent company policy decision. Am I violating her First Amendment rights here?

Employers have the right to develop clear policy restrictions on who’s authorized to communicate on behalf of the organization. Even public employers can implement workplace policies making clear that non-authorized employees may not communicate on behalf of the public entity unless granted (written) permission to do so. An employer can also regulate off-duty conduct on social media, including disciplining or terminating an employee for hate speech – particularly when that conduct impacts the workplace or reflects on the organization.

That said, public and non-profit employees do enjoy whistleblower protection that allows them to share information with media when they have a good faith belief that an entity is engaging in waste, fraud or abuse. And Oregon law protects all employees from discrimination or retaliation when they oppose an employer’s unlawful employment practices. Learn more on whistleblowing protections here.

Our company provides a partial reimbursement for smartphone expenses for our employees every month. Will that contribution be sufficient to allow us to search employees’ phones?

While each case is different, an employer’s ability to search an employee’s phone will likely depend on how the phone is being used and whether the employer established and communicated policy setting clear expectations for employees in advance. There should be no surprises in areas where workers can reasonably expect privacy. Even then, Oregon law prohibits an employer from requiring an employee to disclose user name and password to their social media accounts or apps. Employers should consider working with an attorney to develop policy based on business necessity that sets standards and informs employees about under what conditions a search may take place.