A Pew Foundation study earlier this year found that 87% of all adults in the United States access the Internet or email, either through computers or mobile devices. The same study found that of those adults, as many as 74% are using some form of social media, including Facebook, Instagram, Twitter and LinkedIn. Given those numbers, it’s no wonder that many employers are concerned with managing their employees’ use of social media at work.
The conventional wisdom among many employers has long been that access to social media can be harmful to worker productivity. Visions of distracted employees spending several hours each day liking posts on Facebook and tweeting about minutia have caused many employers to restrict access to social media websites via company-owned computers or mobile devices. In fact, some surveys conducted in recent years estimate that as many as 30-40% of U.S. employers block access to social media and other websites.
Simply put, employees do not have the right to access social media while at work. Employers can block access to any websites, social media or otherwise, on their own computers and networks, including Wi-Fi networks that are accessed from employees’ personal devices.
That said, to the extent that employees do access social media websites from the workplace, several states have recently enacted laws which protect their privacy in doing so. During the last 2 years, 18 states have passed laws protecting various privacy aspects of employees’ personal social media and email accounts, and 18 other states continue to consider similar legislation.
It is worth noting that certain activities engaged in by employees via social media websites may enjoy protection from federal agencies. For example, the National Labor Relations Board (NLRB) has found that social media policies that restrict employees’ concerted activities, such as overbroad prohibitions against discussing pay rates and working conditions, are unlawful. Primarily, the NLRB is concerned with employees’ rights to engage in concerted activity through online posts and comments.
Regardless of whether employers block access to social media, today’s employers would be best advised to implement a social media policy. As we have noted in this blog, social media is here to stay. If your company does not currently have a social media policy, it’s long past time to implement one. If your company has not updated its policy recently, it may also be time to consider various legal and regulatory developments that might make it appropriate to update your social media policy.
Please don’t hesitate to contact our Privacy and Data Security practice if you have questions about your employees’ access to social media and about social media policies.
Omari Sealy’s practice involves a broad range of general corporate matters. His practice focus includes, merger and acquisition transactions, commercial contracts, general corporate law matters, and corporate finance transactions. Omari also assists clients with Hart-Scott-Rodino filings in connection with acquisition transactions. His pro bono work includes helping charitable organizations obtain qualification as 501(c)(3) entities.