It is undeniable that social media – be it Facebook, Twitter, LinkedIn, Google+, what have you – is changing the way we manage our personal and professional relationships. An increasing area of concern over the past few years has been the detrimental effect that our online presence can have on our employment situations. In many cases, employers are holding employees accountable – and even taking adverse action against them – for the videos, photographs, and statuses that they post, share, or endorse.
The most widely publicized case involved Ashley Payne, a 24 year old Georgia teacher who posted a picture of herself with a glass of wine and pint of beer while on vacation at the Guinness Brewery in Ireland. Ms. Payne was not alleged to have violated any laws and or conduct regulations. Still, the principal called her into the office and gave her the choice of immediate resignation or suspension pending the outcome of an investigation by the Georgia Professional Standards Commission for Teachers.
There are many troubling aspects that make Ms. Payne’s case seem particularly egregious – the fact that she had her privacy settings set to the highest level, the lack of violation of any existing rule or regulation, and the fact that the principal’s action was spurred by an anonymous email. The identity of the emailer has yet to be revealed, leaving open the possibility that a jealous coworker or parent with a grudge due to a student’s poor performance could be responsible. In addition, the issues raised in that case beg serious questions about the line between private and work life. The school district initially claimed that their concern was due in large part to the fact that a student had possibly seen the post, but one would assume that if a parent and student had seen the same teacher out to dinner in town consuming a glass of wine that they would have reasonably felt that it was her private life and not the concern of the school.
While Ms. Payne’s story is perhaps the most infamous, stories of people fired for their actions on social media have permeated the national conversation over recent years. The Facebook Fired is an entire website dedicated to chronicling the travails of those terminated for running afoul of their employers on social media – whether they are violating an explicit policy or not. Most recently, in an echo of the credit check as part of the interview process trend of a few years ago, stories have increasingly emerged of applicants and employees being required to turn over their social media usernames and passwords to their employers so that their online actions can be monitored.
However, the tide may be turning in favor of the privacy rights of employees. In three recent reports issued by the Office of the General Counsel for the National Labor Relations Board – in August 2011, January 2012 and May 2012 – 34 social media policies and terminations for violations thereof were examined. The conclusion was that 11 were unlawful, 11 were lawful, and 12 were overbroad. In addition, several states, including – as of January 1, 2013 – California now have laws in place prohibiting employers from demanding social media usernames and passwords from prospective or current employees (e.g. California Labor Code section 980, etc.).
As social media inevitably becomes a more and more inextricable aspect of life, these issues will continue to clarify themselves. In the meantime, it is probably smart for both employees and employers to use caution with regard to social media. Employees should be cautious about what they post (and what gets posted of them), use privacy settings, and, except possibly in extreme cases – particularly those involving the safety or wellbeing of the public – refrain from posting negative comments about their workplace, coworkers, and managers. Employers should prepare carefully crafted social media policies which do not infringe on their employee’s rights and avoid unnecessary digging into their online presence – just as they would into their offline personal life.
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