Do Employees Have a Right to Use Social Media?
OK. So, I’m soliciting input on an issue that came up recently in my class on “social media for managers,” regarding a social media policy implemented by a small financial services company. First, let me say that I am a proponent of company social media policies, as I believe it provides necessary guidelines for employees and actually frees them up to use social media when they understand the do’s and don’ts in their company. Second, I also recognize that financial services (like healthcare) have some unique regulatory requirements not faced by other companies, so it gets a bit touchier in this industry.
So, here is the policy:
1) Employees are not to use LinkedIn for any purpose. If employees are currently using LinkedIn, they must cancel their account.
2) Employees may use Facebook, but they can be randomly “spot checked” by the designated compliance manager, at which point the employee must login to their Facebook account and allow the manager to look through the contents.
My question is not whether this social media policy is a good idea (I’m a social media professor, after all, my opinions should be obvious), but whether such a policy is actually legal.
I do know that employers actually do own an employee’s email data, and can monitor an employee’s email address as they see fit. I see the logic here. The employer owns the computer used by the employees, the servers the email reside on, and the domain address to which the email is sent. Thus, the employer owns the data.
I also am perfectly fine with a policy that prohibits social media use on company computers and/or company time (at least from a legal perspective, I don’t think it’s a good or even enforceable policy), as the company owns the computers and pays the employee for his or her time so they can set the parameters for these resources.
But, this policy seems to go beyond what the company can legitimately claim control for. The employer does not own the computers if the employee accesses social media from their personal computer or mobile device, owns neither the servers nor the software that houses the data, and is not paying the employee for their time when not working.
I can see why firms would want to keep employees off LinkedIn, as it is a major source of employees being recruited away. Nevertheless, LinkedIn also does have other legitimate business purposes and I suspect it will become increasingly influential on employee’s careers. Yes, companies often fire employees if they find out they are actively looking for a job, but can a company legitimately say that an employee is not allowed to ever have a resume? That seems like a policy that restricts an employee’s ability to make a living, does the employer guarantee this employee a job for life? If not, it seems that the employee should at least be allowed to remain professionally active so that when the time does come to leave the company that they can have a viable career.
The Facebook decision seems on even less solid ground to me. I’m fine with employers being on Facebook, and holding employees accountable for information posted there if/when it affects the workplace (see some examples here and here). If you friend your boss and then post something derogatory about him/her you should be fired. But requiring employees to allow the employer to look through the employee’s account seems somewhat overly intrusive. I’m not sure I see the difference between that and the employer tapping the employee’s phones, looking through personal email accounts, or going to one’s house and reading the employee’s mail. It seems to go too far.
As I noted earlier, I certainly don’t think this is a good social media policy. To be fair, I also don’t think the company is trying to be intrusive or evil, but they don’t fully understand social media and are simply trying to what they can to protect themselves from liability. But, can social media policies actually intrude on an employee’s civil and legal rights? Although I mocked this perspective somewhat in my last post, does an employee have the right to use social media on his or her personal time and personal hardware without involvement from the employer?
I honestly do not know, and I solicit some insight so that I can share it with my class.
Hey Gerry,
Nice post and very poignant during these times. From my perspective as both an employee and a supervisor the policies somewhat shock me.
For the Linked-In account, I can understand the company not allowing employees to access social media sites from the workplace. Requiring the employees to delete their accounts is akin to requiring them to sell a Ford if they own one (you must own a BMW). The account is really their own “property” which the company shouldn’t have jurisdiction over…right? (I’m no lawyer) What I do on my time in my home on my computer is “mine.”
The requirement that employees log on to facebook and allow a company representatives to browse through their account is quite ridiculous. If I were the employee I would not be accessing the account from work, ever. This way, the policy would not be enforceable.
Again, I’m no lawyer, but I’d have to say neither of these would hold up in a court. What policies like this do, however, is deter folks from utilizing social media and if that’s the goal of the company, then perhaps the policy does what it should. If I were to lose my job because of one of these policies I would certainly go after them.
I’m interested to hear other perspectives.
Thanks!
Mark
Very interesting. After the initial “what an idiotic policy” reaction, there are some interesting questions brought up.
At my company, all of the sales force were at one point required to have a LinkedIn account. The Sales VP saw it as the best tool for keeping in touch with customers. That raises another set of interesting questions, of course, like how much information should you be required to include on a LinkedIn or other page that you are forced by your company to establish.
As for Facebook, I know of co-workers who absolutely refuse to get an account for fear that it may be seen as a distraction or liability. There is a plugin for Outlook that places the Facebook profile photos of everyone copied on an email message in a pane below the message. You do not have to be connected with the person for their photo to appear. All sorts of embarrassing pictures have shown up there just in my limited experience. However, I recently downloaded a government (or government-like) RFP that had Facebook login as the preferred way to retrieve the documents. I don’t see avoiding FB altogether as a long term option.
We had a case here in GA that you’re probably aware of where a teacher was fired for a Facebook photo that she posted and only shared with her friends – not her students or their parents. It was innocuous enough (drinking wine, I believe), but the school system still let her go. I know of many teachers who are terrified that they can be held to account for social media postings that are supposed to be private. I suppose in such a case, where someone like a school system is seriously concerned about the backlash if an employee posts something embarrassing, they might see it as their right to pry into what would otherwise be considered private property. Perhaps your company example is in that boat.
However, my reaction remains little changed. In general, it’s an idiotic policy that is destined to fail spectacularly.
Scott
I had a similar reaction to the above. Banning employees from having a LinkedIn account in this day and age is akin to telling employees they can’t have or distribute business cards. I really think this is an accurate analogy. Obviously when working for a firm where you have access to certain information and you could create a liability situation for them, there needs to be certain limitations on the content employees can share on social media (just as there are for their other communications).
I’m no law expert, but I’m pretty sure preventing one from having these accounts is extremely borderline at best and demanding access and passwords to private accounts is definitely illegal. It’s a violation of privacy and I think very easily, a right to free speech. This policy is inviting a massive lawsuit.
My company has no explicit rules against Linked-In use. I note that our CEO uses the site and keeps his page up to date so there should be no issues there.
The only word we’ve received from upper level management has been with regards to job recommendations. We’re aren’t supposed to provide them for former employees, staff, etc. on our linked-in page. Practically speaking, this hasn’t been a huge issue as you can hide those sections of the page from anyone. I’m curious to hear how other companies handle that particular item.
I certainly agree that both the LinkedIn and Facebook policies are reactionary in nature, rooted in fear and ignorance, and ham-fisted in their design. Obviously, modern companies need to stop “blaming the technology” and start finding ways to capitalize on it instead.
That said, I think only the Facebook policy would be contestable in court. I’m sure that if you worked for a defense contractor (for instance) involved in top secret operations, your online presence might need to be minimal or zero. The firm would have the right to insist on this.
However, demanding that an employee log into their personal Facebook account for random audits *has* to be a violation of privacy. Even though Facebook itself isn’t personal property, it stands to reason that everything that happens on Facebook outside of work is private information.