In New York and New Jersey, most employees are employees “at will”. As an employee at will, employment may be terminated by either party, at any time and for any reason or no reason at all. One of the greatest challenges facing employers today is the establishment of policy regulating employee use of social media. Employers have a legitimate interest in monitoring employee communications, including e-mail and internet use. Employees who spend significant time on the internet can be less productive and place the employer’s computer system at risk for hacking and viruses. Employers are challenged with balancing their legitimate interest in employee computer communications with their employees’ right to freedom of speech as well as employee morale. It is important for employers to review their employee handbook to make sure it contains a policy addressing social media.
A social media policy should:
- Explicitly prohibit inappropriate postings, including discriminatory remarks, threatening statements or unlawful comments or postings.
- Prohibit the posting of complaints about work related issues or criticism of the employer or fellow employees.
- Maintain the confidentiality of employer trade secrets and other confidential information regarding the company.
- Prohibit the use of employer e-mail addresses to register on social media utilized for personal use. Employees have no privacy interest in using work e-mails.
- Include a disclaimer that the opinions expressed by the employee are their own and do not reflect the views of the employer.
Employees who actively use social media to express themselves must be careful, even when they are not using an employer’s computer or posting during work hours. Employees who post confidential client-specific information or information that creates a material conflict of interest regarding the employer’s proprietary or business interest may still face termination, especially when their employment is “at will”. Indeed, even prospective employees who actively use social media could face scrutiny and possible challenges from prospective employers examining the employee’s social media.
To learn more about the use of social media in the employment context, feel free to contact me at firstname.lastname@example.org or call me at (973) 696-8391, ext. 222.