Social Media Advisor – Playing Nostradamus With Employment Law

We all spend a lot of time analyzing legal developments occurring in the recent past, as well as those that have just happened.   Often neglected is the anticipation of where the legal trend will be taking us in the months and years to come.   You are now in the right place.

Nostradamus stated not so recently, “I do but make bold to predict (not that I guarantee the slightest thing at all[.])” (Open letter to Privy Councillor (later Chancellor) Birague, 15 June 1566, from Lemesurier, Peter, The Unknown Nostradamus, 2003). With that same caveat, here are the Top 5 issues that are expected to have a greater impact on employers as we move forward and litigation begins to catch up to the increased use of social media:

            1.         Privacy claims and the ability to regulate off-duty activities. Employers will continue to have unprecedented access to information about what employees are doing on their own time – their weekend musings, organizational affiliations, recreational and political activities, and off-duty blog posts.   Yet, most states (like New York) have some form of “legal activities law” that prohibits employers from taking certain action based on many of those categories of information. A key inquiry will ultimately become whether there is a nexus between the employee’s activity and the employee’s ability to perform his or her job. 

Likewise, there will be an increase in privacy-related claims as employers continue to find ways and reasons to monitor employee communications on company systems. One such claim that will become more prevalent relates to employer monitoring of, and access to, private or attorney-client communications through a non-company source over a company-owned system.   For example, an employer gaining access to an employee’s e-mails sent through a private AOL account, albeit on the company’s computer system. Employers must ensure that they protect themselves, for example, through appropriate employee-signed documents.

            2.         Competition and trade secret disclosure. Employees will continue to use social media to the detriment of employers. Among the litigated questions that will likely increase are: Whether an informal web-based chat about a company’s development or expansion plans constitutes an improper disclosure of an employer’s trade secrets or other confidential information? Or, whether employees who post credentials, change of job notices, and job experiences on web sites such as LinkedIn or Facebook are violating non-compete or non-solicitation agreements?

            3.         Employer liability to third parties.   More third parties will become affected by employee use of social media and improved technology. This will lead to an increase in claims that an employer should be vicariously liable for an employee’s acts. For example, defamatory statements by an employee about another individual or company may expose an employer to litigation. Similarly, an employee who causes an accident by texting while driving, or engaging in other forms of social media expression while driving, when that employee is using a company-owned phone or device, may also prompt a claim against an employer. As in the other cases described above, employers should maintain appropriate policies.

            4.         Union avoidance.   The use of social media will not only increase on an individual basis, but will also become a greater outlet for collective expression. As groups form and employees have an easier way to organize, employers must be sensitive to the proscriptions contained in the law against taking certain action in some cases against employees who engage in concerted action.

            5.         Avatar.   No, not the James Cameron movie. Avatars are virtual characters that interact with each other online in virtual worlds, where the avatars sleep, eat, work and even have sexual relationships. As more employees spend more downtime in these virtual worlds (either transacting business or engaging in personal relationships), potential liability can exist for employers when the virtual becomes real, such as, for example, if supervisory and subordinate avatars are engaging in certain relationships and role playing that ultimately becomes a sexual harassment claim in the “real world.” 

Employer Take Away: What should every employer take away from this development? Employers should consider and understand the potential for liability exposure in these 5 areas moving forward, and consider the appropriate ways to be pro-active in order to remain ahead of the social media forecast.

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