By Lawrence P. Schaefer |
A new “battleground” in the field of employee rights has emerged, and it is a direct result of the prevalence of social media in our society. Private and public employers are developing policies which restrict employee behavior “off the clock” and particularly an employee’s use of social media. Affected employee are often outraged by this attempt to regulate their personal lives, feeling as though the line between work and private life should not be crossed by any employer. Conversely, employers are becoming increasingly image-conscious, and believe there is a legitimate interest to protect when company employees, even when not working, are doing or saying things that reflect poorly on the company.
This issue has come to a head recently when police departments have terminated officers for off the clock social media postings, and more and more municipalities are adopting policies which expressly regulate and restrict this kind of expression for employee at every level. Here are some basic legal principles employee need to know when faced with these kind of regulations. As always, consulting with experienced legal counsel is important whenever any serious adverse action has occurred, and Schaefer Halleen has vast experience enforcing the following privacy rights of employees.
First, public ermployers are “state actors” and therefore policies or actions which restrict freedom of expression can give rise to legal claims arising from the First Amendment (protecting freedom of expression from government regulation). This right, however, isn’t absolute, and public employers can restrict “off the clock” speech or expression if it has a legitimate interest in doing so, and the policy is narrowly tailored to protect this interest. Therefore, if the restriction has to do with restricting otherwise punishable speech (i.e. speech that presents a clear or present danger, involves pornography or sexual activity that might otherwise be criminal, or is otherwise extremely damaging to the employer) this will likely be held enforceable. Moreover, the higher the employee is as a representative of the municipality, the more important this interest and the more leeway a court will give in restricting expression.
Second, while private employers have more leeway in implementing social media and similar policies, because the “state actor” element is not present, affected employees still have legitimate privacy rights which can’t be violated without common law or public policy-type claims arising. Again, the key will be balancing the scope of the legitimate employer interest against the policy enacted, and the nature of the private activity or speech for which the employee is being punished.
I appeared on the WCCO 10:00 pm News last night speaking on this issue, as an expert on the scope of protectable employee rights in this area. If you are subject to a social media or related policy that appears overly restrictive, or if your employment is threatened because of some private activity you believe your employer has no right to punish you for, contact Schaefer Halleen right away, and we can quickly determine if viable legal claims can be asserted.
As one of the most recognized plaintiff’s lawyers nationwide, Larry Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He concentrates his practice representing people who are injured through employment discrimination practices. Larry serves as the firm’s CEO and head of litigation.
