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Having a social media policy in a business may provide an employer the advantage of ensuring that its employees know what they should and should not do on social channels. Additionally, social media policies can help a company curb any legal or security issues. Generally, employers can monitor their employees’ internet use on computers owned by the employer during the employees’ on-duty hours if the employer has notified the employees in writing that employees do not have a reasonable expectation of privacy; however, what about activities that occur while employees are off-duty? While private-sector employees do not have First Amendment protections against their employers, California law protects certain lawful off-duty social media activity.
California Labor Code Section 98.6
California Labor Code Section 98.6 protects employees from unlawful retaliation. An employee is protected under Section 98.6 when filing or threatening to file a claim or complaint with the Labor Commissioner, instituting or causing to be instituted any proceeding relating to rights under the jurisdiction of the Labor Commissioner, or testifying in such a proceeding, complaining about unpaid wages, or for exercising any of the rights provided under the Labor Code or Orders of the Industrial Welfare Commission, including, but not limited to:
- demanding payment of wages due;
- expressing opinions about an alternative workweek election; or
- exercising any other right protected by the Labor Code.
In addition to other remedies that might be available, a civil penalty of up to $10,000 may be awarded to an employee for each violation.
Labor Code Section 98.6, essentially, precludes employers from retaliation against employees due to the employee’s complaint about working conditions or complaints to government agencies. Suppose an employer fires an employee because their social media posts indicated they filed a discrimination lawsuit against a former employer or took job-protected leave. That action could violate the anti-retaliation provisions of Section 98.6.
National Labor Relations Act
Additionally, an employer who takes adverse action against an employee for posting grievances concerning their pay or working conditions could also violate the National Labor Relations Act (“NLRA”). The NLRA guarantees the right of private-sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Expressly, Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
“Concerted activity” includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is “protected” if it concerns employees’ interests as employees. Employers who threaten employees with adverse consequences if they engage in protected, concerted activity interfere with the rights guaranteed by NLRA’s Section 7. Section 8 of the NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees exercising the rights guaranteed in Section 7. However, an employee engaged in otherwise protected, concerted activity may lose the Act’s protection through misconduct. Meaning, there may be certain situations where an employer can expect employees to comply with a company’s social media policies while off-duty.
For example, an employee can be expected to abide by an employer’s sexual harassment policy after hours and outside the workplace. Sexual harassment of employees or a third party –such as a client, customer, vendor, or independent contractor – after hours and outside the workplace could create a hostile work environment and violate employment laws.
The National Labor Relations Board balances employees’ NLRA Section 7 rights with employers’ obligations to comply with other laws and to provide a non-hostile, harassment-free work environment, but when an employer’s social networking policies are broad and vague, that works against the employer in Section 7 considerations. Therefore, the best social media policies will aim to prevent unauthorized disclosure of the company’s trade secrets and other confidential information, violations of the Federal Trade Commission Act arising from an employee’s promotion of company products, employee harassment, and privacy violations. Because of recent laws that have affected privacy, and because privacy settings on social media can impact privacy claims, employers should consult with an attorney before implementing a social media policy and a plan to enforce such.