Legal – Evolving State Privacy Laws Impact Employer Social Media Policies

Ah, how times have changed. Just 10 years ago, social media was considered by many to be a personal indulgence and an annoying distraction for many employers. However, it is clear that social media is now an integral part of our society. From LinkedIn to Facebook, employers use social media to collect information, share products, and promote their brand. In addition, many employers use social media as a practical tool to evaluate prospective employees. These are, of course, just a few examples of the expanding nature of social media. An individual would be hard pressed to find an organization that does not market itself through social media or solicit feedback using the same forums.

Despite the evolving nature of social media, employers continue to grapple with familiar issues when it comes to the topic of regulating speech and social media. While change is inevitable, the laws related to speech have remained fairly constant at a federal level. However, employers should be mindful of their own state law regulations related to speech and the interplay they have with social media. With more and more states drafting their own privacy and user protection policies for content posted outside of work hours and not in the performance of their duties, employers need to understand how and when they can regulate employee speech on social media.

The First Amendment guarantees public employees the right to free speech when speaking as citizens and not in the performance of their duties. In addition, Section 7 of the National Labor Relations Act (NLRA) allows employees, both public and private, to discuss political and social issues to the extent they might be related to, or concern the terms and conditions of, employment. Aside from the federal protections afforded to public employees, some states guarantee the right to privacy only when not engaged in work-related activities. For example, Illinois’ Privacy in the Workplace Act makes it clear that private employers are free to enforce uniform workplace policies that regulate speech. In California, Labor Code ยง 1101 does not prevent a private employer from enforcing uniform policies that curtail speech in the workplace. In New York, the right to free speech is not available in a private workplace. These policies typically apply to company-owned social media platforms, electronic devices, and emails.

However, none of these rights are absolute. Most private employers have no duty to accommodate speech in the workplace that does not concern terms or conditions of employment under federal law. Private employers must be aware, however, that these laws do not allow for the regulation of personal speech not connected to work-related functions. This means private employers cannot regulate or control personal phones, texts, or social media accounts; but employers are not required to allow access to personal social media sites or personal email on company property during work hours.

The issues surrounding speech and social media will undoubtably continue to evolve. Public and private employers should keep the following considerations in mind. First, does your company maintain an employment agreement, policy and procedure or code of conduct that prohibits certain speech in the workplace? Further, do your workplace polices have the practical effect of treating one race or group of employees differently from others? Finally, if dealing with an organized workforce, does a collective bargaining agreement impact the analysis and limit employer options? These are risky times for employers, especially when speech is regulated in the workplace.

Thaddeus A. Harrell is a labor and employment attorney with Hinshaw & Culbertson LLP.


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