Social Media & Employee Privacy Rights

How Employers Can Walk the Line

Written by Sigrid U. Zaehringer
Published in the August 2010 Edition of the Quad City Times Business Journal
As Facebook, LinkedIn, and Twitter flourish, and email and text messaging become the dominant communication tools, employers face challenges when employees take advantage of these new technologies. These difficulties are attributed to the conflict between employee privacy rights and the employer’s right to maintain an efficient, and in some instances, safe work environment.

While many employers incorporate social media into networking strategies, others have adopted rules limiting the use of company computers or other equipment for personal use. After all, productivity isn’t the only thing at stake; the company’s reputation and workplace harmony may also be threatened by irresponsible texting, emailing, or online posting during business hours.

However, employers must be careful in controlling such behavior in light of employee privacy rights.

Most privacy controversies are rooted in either the Fourth Amendment or state privacy laws. In both Iowa and Illinois, individuals can recover damages for wrongful invasions into their private lives if they have taken appropriate steps to safeguard what should be kept private. To successfully bring a privacy suit in either state, a plaintiff must show that a defendant purposefully intruded upon the plaintiff’s privacy, and that the intrusion would be highly offensive to a reasonable person. The defendant is not liable, however, if the plaintiff’s conduct is already in public view. When privacy cases arise in an employment context, a court will also inquire whether the employer has a clear policy governing computer and phone usage. The existence of such a policy is directly tied to the employee’s expectations of privacy; if an employee knows he or she will be monitored, then his or her expectations of privacy are diminished.

Employees have gone to court and invoked privacy rights in video surveillance cases, when their desks or offices were searched, and when the contents of messages sent via company computers were reviewed by the employer. In a United States Supreme Court case decided in June, a government employer recovered hundreds of personal text messages sent via company phone. There are also reports of incidents where management was informed of employee misconduct on Facebook by other employees or people outside the company.

Even though these examples vary, similar questions arise. Did the employer have a legitimate interest in scrutinizing the employee? Was there a company policy addressing the employee’s behavior? Did the employee have a reasonable expectation of privacy? In the Supreme Court case, the Court held that the text messages were subject to review and that the employee’s expectations of privacy in the texts was limited, particularly because the equipment was owned by a public employer. In the cases of the incriminating posts on Facebook, the employee’s case was defeated because the messages were visible to other individuals, and not "private.” In the case of the employer reading personal emails sent via company computer, however, the court found that the employee’s right of privacy was, in fact, violated because the company policy regarding personal email inspection by the employer was vague

For now, the most important thing employers can do is develop company policies concerning computer, phone, and internet usage. Not only must the language clearly define acceptable behavior, it should define what kind and how much activity will be tolerated. If employers monitor employee emails, posts, and text messages, then they should notify employees in writing that they are subject to scrutiny. Policies must be consistent with external memoranda and collective bargaining agreements. Additionally, such policies should be implemented to protect the employer’s business interests and not used to discriminate against or harass employees.
For more information on this topic please contact Califf & Harper, P.C. by calling 309-764-8300 or 1-888-764-4999. This article is intended to provide general information regarding the topic discussed herein but is not intended to constitute individual legal advice.