When Gov. Chris Christie signed the so-called Facebook law in August, it made it illegal for employers to ask for access to their employees' social media accounts.
But that law, which goes into effect in December, doesn’t give employees carte blanche when it comes to Twitter, Facebook and Tumblr posts, two employment law attorneys said during the Sobel & Co. Executive Women’s Breakfast today.
“This does not make it safe for you to say whatever you want and not get fired. That’s not what this law does,” said Lisa Fried-Grodin, a partner with the labor and employment firm Meyers Fried-Grodin. “This is not a safe haven that you can go out and say anything damaging on Facebook and you’re protected.”
Social media is a complex and slippery slope in the business world. Employees have lives and opinions outside the office, and Facebook, Twitter and even personal blogs provide forums to express that other side. But employees’ personal social media use can trickle into their working lives, as well.
The new law takes steps to protect employees and their password-protected social media presence. It also protects employers, preventing them from learning personal tidbits about their workers that could influence personnel decisions — and potentially come back to haunt them in a discrimination suit, said Alix Rubin, another employment attorney who spoke during the panel discussion.
But comments made publicly, say on an open Twitter account or a Facebook page without privacy settings, as well as those posted using company accounts or equipment, are a different story.
“If you put something out there in the public, you have no expectation of privacy,” Fried-Grodin said. “The First Amendment doesn’t protect you if you don’t work for the government.”
Some topics discussed online might be cause for disciplinary action, while others could be simply taboo. Figuring out which is which can be a challenge for companies, Rubin said.
Employers can discipline nonsupervisory employees for making racial, ethnic or sexual comments online, as long as their companies have firm harassment policies in place, she said.
They can also take action if employees use the Internet to disclose confidential information. In that case as well, the company needs to have clear policies on what constitutes confidential information, Rubin said.
Anything defamatory is fair game for disciplinary action, and individual griping is, too — though Rubin said it can be hard to differentiate between griping and what the National Labor Relations Board calls “protected concerted activity.”
“With the power of the Internet today, something that is nothing, in one second, can be huge and all over,” Fried-Grodin said. “Unfortunately, sometimes a person’s employer becomes associated with what an individual does (online).”
There are also a whole host of online actions that are not punishable offenses. Those include criticizing the company, posting customer complaints online and commenting on them, posting the company logo, requesting or disclosing compensation information, or sharing photos or videos of the workplace.
Overall, both attorneys agreed that the key to managing social media use is putting a detailed social media policy in place.
“You need to be specific about what is proper conduct,” Rubin said. “Otherwise, an employee might not understand that, what is and isn’t permissible.”
“Not only do you need to have a policy, but you need to make sure that it’s reflecting the current developments in the law,” she said.
“It’s an evolving situation,” she added. “You’re in dangerous territory if you attempt this on your own without the advice of an employment attorney.”
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