social media

As employees' social media posts grab global attention for all the wrong reasons, more employers are auditing workers' social media profiles to spot any activity that violates company policy.

Last week, after firing 13 police officers and placing 72 others on desk duty over their offensive social media posts, the Philadelphia Police Department announced it will implement a “mechanism” to audit officers' social media posts. Such social media mining is a proactive approach that more employers are implementing, said Mayer Brown partner Richard Nowak.

“I think [this] will be more common going forward with employers because of the significant publicity,” he said.

But as more employers examine their workers' social media trail, lawyers recommend they not target specific employees for monitoring to prevent certain discrimination and labor claims.

To be sure, First Amendment rights in the workplace only extend to government employees. For those employees, the U.S. Supreme Court has established a test to evaluate if the employee's speech addresses a matter of public concern and, if so, whether the employee's right to free speech outweighs their employer's interest in an efficient, disruption-free workplace.

For the vast majority who are employed by a private company, their unfair labor complaints are heard by the National Labor Relations Board, which doesn't grant First Amendment rights but provides an employee with a host of protected actions and language.

Still, private employers can run into a host of legal issues when mining their staff's social media. “It's one of those things that is easy for an employer to say, 'I'm a private employer [and] they have no First Amendment rights,' which is true but it's not so easy because so many statutes could be implicated and typically employees are getting upset about something related to the workplace,” said Jackson Lewis principal and co-leader of the firm's labor and preventive practices group Jonathan Spitz.

Spitz cited the National Labor Relations Act, Occupational Safety and Health Act and Title VII of the Civil Rights Act as some of the protections that shield employees from discrimination and harassment and provides other employment rights.

The five-person National Labor Relations Board under President Donald Trump's administration, however, has typically taken a pro-management stance on matters and is “much more lax than what the board was under [President Barack] Obama,” Nowak noted.

But even under a new administration, lawyers caution against targeting specific employees for a social media audit. Outside of a reactive search after an employee alleges a fellow worker sent harassing messages, Spitz said it's best to monitor everyone.

“If you are going to monitor social media, you should have an evenhanded system,” Spitz said.