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Workers’ online media activity is (and is not) private


Katie Loehrke

JJ Keller & Associates Photo

Generally speaking, employers can track their employees’ movements online during work hours. That means, for example, that if an employee spends considerable work time on personal sites, the employer can discipline him or her for that activity.


Discipline for online activity vs. content posted online

While employers may discipline employees who aren’t working during work time, they may not be able to discipline employees for the content of an online post, whether posted during work time or not.


There are at least two major considerations here:

·         Whether the activity might be protected under the National Labor Relations Act (NLRA), and

·         Whether the employer has the right to access the content under the Stored Communications Act (SCA).


Is the content protected activity?

Under the NLRA, employees have the right to discuss terms and conditions of employment with one another for mutual aid and protection. That is, employees must be able to discuss their employment to determine whether they might want to join a union.


If an employee’s social media post attempts to discuss wages, working conditions, and the like, it’s probably protected activity under the NLRA. In such a case, an employer should not take any adverse action against the employee based on the content of the post.


Note that courts have held that even the act of “liking” another individual’s post on Facebook can be protected activity under the NLRA. This was the ruling in Three D, LLC v. NLRB before the Second Circuit Court of Appeals (October 21, 2015).


Does the employer have access?

Under the SCA, if employees have made their profiles public (on Facebook, for example), an employer has the right to view them. But if a user has limited access to his or her “friends” on Facebook, the employer should not view the content, even if the employee accessed or created the content during work time using a company computer.


In Ehling v. Monmouth-Ocean Hospital Service Corporation (2013), a New Jersey federal court held that under the SCA, a Facebook post is private when it is made by a user whose privacy settings are not available to the general public.


However, the SCA does have an “authorized user” exception, which applied in this case. Here, a coworker (who had been “friended,” or given access to the post) viewed the post in question, printed it out, and provided it to the employer. Under the SCA, an individual who has access to a social media post may give another individual access in this way.


About the Author
Katie Loehrke is a certified Professional in Human Resources and an editor with J. J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter and its Essentials of Employment Law manual. For more information, visit www.jjkeller.com/hr.


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