The Fraught World of Social Media and Employee Privacy

July 27, 2015

Facebook Gavel social mediaCan we separate our private lives from our place of employment?  And when, if ever, is it appropriate for employers to discipline and even fire their employees based on their conduct outside of work?  These questions are popping up more frequently for employees, HR departments, lawmakers, and judges.   While we like to think that work life should be separate from one’s personal life, we find it hard to look away when someone does something embarrassing, dangerous, or inflammatory.  Social media is making this separation even more difficult.  We may “friend” or “follow” both personal friends and workplace associates—and these groups often overlap.  Do employees need to carefully fence out anyone involved with their careers in order to protect their personal privacy?  Or do employers need to ignore unsavory posts or tweets if they do not otherwise implicate their business?

The law may be increasingly involved in how these questions are resolved.  Twenty-one states now have legislation that prohibit employers from requiring their employees to provide social media account names and passwords.  California has a long-standing state constitutional provision that protects individual privacy against government or private interference, and Massachusetts has a similar state statute.  And over forty states have common-law protections from privacy that make it a tort to intrude upon someone’s “seclusion.”  But privacy protections generally only keep private things private—they will protect employees who carefully cultivate their social media gardens and exclude any outsiders.  If an employee does happen to include a supervisor or even a fellow employee within their social network, they may be deemed to have disclaimed any right to keep the material private.

The Restatement of Employment Law provides two important protections to employees in these circumstances.  First, § 7.03 makes clear that a particular “location,” whether it be geographical or electronic, can remain private as to the employer even if it has been disclosed to others.  Thus, a limited disclosure of information to friends does not mean that the information has lost its privacy protections as to one’s employer.  Second, § 7.08 provides limited contractual protections for employee autonomy outside the workplace.  Under this default term, the employer agrees not to terminate a worker for lawful conduct, beliefs, or associational memberships that do not involve the employer or its business.  Workers are thus protected against discharge because they are Republicans, or Buddhists, or smokers.  However, employers are not liable if they have a good-faith belief that the employee’s behavior interferes with its legitimate business interests.  And since the provision is merely a default term, employers can make clear that—as an example—employees of the Democratic National Committee should not be Republicans.

Given that Facebook is just over a decade old, we are all still relative newcomers to social media.  As our society adapts to this new phenomenon, our laws need to adapt as well to insure that workers and employers have their interests protected.