As seen in the March 25th issue of The State
Journal.
Employers awaited with curiosity last year as the U.S. Supreme
Court considered the case of City of Ontario, California v.
Quon, where the employer terminated an employee for
transmitting sexually-explicit text messages on an employer-owned
pager. The employer paid for the pager's service plan, but the
employee reimbursed the employer for his personal use of the pager
beyond the allotted minutes of the plan. When the employer
performed an audit of pager use, to see if the service plan needed
changed, it discovered the explicit messages and terminated the
employee. The trial court upheld the termination, but the Ninth
Circuit Court of Appeals reversed. Both courts ruled that the
employee had a reasonable expectation of privacy, but disagreed on
whether the employer's interests were sufficient to override
the employee's right.
During the subsequent appeal, many hoped that the Supreme Court
would shed some light on how to balance an employee's right to
privacy with an employer's right to run its business. The first
warning sign that this would not happen occurred during oral
argument of the case. In discussing the concept of text-messaging,
Chief Justice Roberts commented "I thought, you know, you push
a button; it goes right to the other thing." Justice Scalia
replied "You mean it doesn't go right to the other
thing?"
Indeed, the Supreme Court eventually ruled that the case could
be resolved without determining the extent of the employee's
privacy rights. Assuming that the employee did have a reasonable
expectation of privacy, the Court found that the employer's
interest in auditing the pager records overrode that right. Thus,
the Court declined to rule on what it called an issue of
"far-reaching significance," stating that such a decision
would be premature because it is "uncertain how workplace
norms, and the law's treatment of them, will evolve."
Thus, the Quon decision shed little light on the subject
of texting in the workplace.
Then, earlier this year, it looked as though employers would
receive some guidance from the National Labor Relations Board
("NLRB") regarding the concept of "Facebook
firing" (terminating an employee for his or her posts on
Facebook). In late 2010, the NLRB filed a Complaint against a
Connecticut employer, alleging that its Facebook policy illegally
restricted employees' rights to engage in concerted activity
regarding the terms and conditions of employment. The case quickly
settled, with the employer agreeing to revise its social networking
policies to ensure that it did not interfere with employees'
rights to discuss their wages, hours, and other conditions of
employment. Because of the settlement, the NLRB never had to render
an actual decision in the case. Thus, there will be no review by a
court and, while the case provides some guidance, it has no
precedential value.
Employers: What Steps Should You Take?
Although many questions remain unanswered by the courts and the
NLRB, an employer can take proactive steps now to ensure that it
has in place methods to deal with employees' use of technology
in the workplace. Employers should update their computer use
policies to make sure they cover smartphones and pagers. Such
policies should also warn employees that they have no expectations
of privacy in the use of company-owned devices, and that their
activity on such devices may be monitored. Employers who do not
already have social media policies in place should consider adding
them. Such policies will vary depending upon how much an employer
encourages the use of social media, if at all. One example might
include (1) a prohibition against posting, blogging, tweeting, or
otherwise using social medial on work time for non-work purposes;
(2) a prohibition against using the company's (or a
client's) name, identifying marks, or confidential information
on social networking sites without permission; and (3) a
prohibition on the use of social media to harass co-workers and
others. Such a policy should, of course, be enforced
consistently.
Employers who already have social media policies in place should review them to make sure they are not overly broad. It is safe to assume that if an employee's speech is protected in the workplace, it is likely to be protected if made on Facebook. Thus, in order to reduce the likelihood of lawsuits and/or unfair labor practice charges, employers may want to limit their policies accordingly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.