The answer to any question that begins, “Can I fire an employee when….” is going to be very fact specific. So before you meet with your attorney to talk about what you discovered while perusing social media sites (and in this situation you really should get some legal advice), collect some notes about four issues:
- How did you access the information?
- What do you find problematic?
- Was it posted in the course of the employee’s employment and, if so, who owns and controls the site?
- Even if not, was it done on work time, who owns the electronic equipment and what, if any, expectations have you created about information privacy?
All of these issues matter for California employers. Employees have a legitimate interest in privacy protection, enshrined in Article I of the California Constitution. Employers are also legitimately concerned about being sued for negligent hiring, vicarious liability for sexual harassment, workplace violence and defamatory employees. It’s no slam-dunk either way. In the light of relatively recent legal changes, many employers should re-visit their social media policies to make sure these policies cover what they should.
Where Did the Information Come From?
It may have been from a public site, a site protected with the employee’s username and password, an employer site, or that strange grey area where personal and professional life overlap, where it may not be entirely clear whether the employer or the employee ultimately controls content.
Public information. There is no issue with accessing publicly available information, but there may be an issue with adverse employment action taken on the basis of that information. If you are disturbed to discover that an employee lied about educational or employment background, or is making false and defamatory statements of fact about your business, of course you can fire him or her. If you are disturbed to discover that your employee is gay, a Rastafarian or over the age of forty, and you terminate his employment for that reason, you may face a workplace discrimination suit under federal law or California law, especially if he is a litigious old gay Rasta man.
Under some recent NLRB rulings, that may also be true if you are disturbed to discover that your employees are taking to the Twitterverse to complain about wages and conditions of employment. Even if your business is a non-union employer, those discussions are likely protected under Section 7 of the National Labor Relations Act.
Private sites. Section 980 of the California Labor Code, adopted in 2012 prevents an employer from conditioning employment on access to an employee’s personal sites. This prohibits both an outright request for login information and a practice known as “shoulder surfing,” where the employer requires the employee or applicant to open the sites for review as the employer looks on. These provisions also prohibit the subterfuge of using another employee’s identity to log on to the suspect employee’s site as a “friend”.
Nonetheless, California law acknowledges the concerns of employers. It permits employers to ask employees to divulge personal social media information reasonably believed to be relevant to an investigation of employee misconduct or illegal activity, provided that the social media is used solely for that investigation or a related proceeding. Employers may request access to a personal site to investigate allegations of sexual harassment, for example. They may cooperate, as required, in a criminal investigation. Employers may also require an employee to disclose a username, password, or other information necessary to access an employer-issued electronic device.
Blending of Public and Private
The question of whether employees have a “reasonable expectation of privacy” in their communications is central to the debate about social media privacy, and is only becoming more complicated with the increased blending of personal and work life. The U.S. Supreme Court has found that when devices are owned by an employer and issued to an employee for work purposes, the employee should not expect communications to be private. Many employers explicitly quash expectations of privacy by informing employees that electronic communications may be monitored.
Rather than thinking in a traditional "theft of services" framework, and in an effort to retain employees juggling work and life , some employers openly permit employees to attend to personal business during the workday. They embrace the practice of “homing from work,” presumably to balance their expectations about working from home.
It sounds humane, but the potential for confusion is huge. What if the employee visits or shops on websites that the employer or coworkers find deeply offensive? Employers must protect valuable workplace culture by defining expectations about public/private information and behavior very clearly.
The situation is even muddier where an employee is encouraged, possibly even expected and required, to post business information on a personal site, essentially creating faux word-of-mouth advertising. Some employees are hired by employers not only for their expertise, but also for the large group of followers they have developed via social media. The employee’s followers may become a valuable advertising and marketing resource for the company. Who owns the site and controls access when the employee leaves? What if the parting is acrimonious? As the world of social media marketers learned in PhoneDog, LLC v. Kravitz, this kind of relationship should be the product of careful and documented negotiation on both sides.
In general, under the doctrine of "employment-at-will," employers can fire employees for any reason or no reason. However, federal, state and local law are creating larger and larger exceptions. Anti-discrimination laws have become familiar territory for many employers. Privacy law, especially in California, which is very protective of employee rights, is creating some additional carve-outs. Employers need to be alert to the nuanced distinctions between public and private social media, in a landscape where personal and professional lives are increasingly intertwined.