Five employee business guidelines when commenting on social media.
A common dilemma confronted by employers is how best to regulate employees’ use of the internet and social media.
While employers appear to be able to regulate significantly an employee’s email use, their ability to regulate an employee’s use of social media is more circumscribed.
A. An Employee’s Expectation of Privacy in the Work Place
Employers can limit, and even eliminate, the use of personal email messaging over a business’s computer system.
Not only may the employer regulate emails sent from a business email account, but personal emails sent from internet based accounts, like GMail and Yahoo, over an employer’s computer network can also be regulated.
Indeed, the broad consensus among courts is that employees do not enjoy a reasonable expectation of privacy when they send or receive private emails over an employer’s computer network.
The issue is more nuanced, however, when it comes to emails containing confidential communications between an employee and her attorney.
In the oft-cited New York case—In re Asia Global Crossing, Ltd, 322 Bankr. 247, 257 (Bankr SD NY 2005)—the court considered several factors bearing on whether an employee’s attorney-client exchange over an employer’s network enjoyed some level of privacy.
An important consideration was whether a business maintained and actively enforced a policy banning the personal or objectionable use of emails.
After Asia Global Crossing
After Asia Global Crossing, all business owners should consider promulgating a written email policy.
Such a written policy could be included as part of an employment manual, or exist as a stand-alone document. An employer should also ensure that its employees are cognizant of these email policies, and secure written acknowledgments from each employee that she understands the policy and will abide by its guidance.
Of course, it is also important that employers enforce their email policies consistently and promptly notify employees concerning any policy changes.
B. An Employer’s Right to Regulate social Media Use
When it comes to regulating an employee’s activity on social media however, an employer’s capacities are more restricted.
At one pole, is an employee’s duty of loyalty to his or her employer, which empowers an employer to restrict certain activities that would be deleterious to the interests of the business—such as disclosing confidential and proprietary information that could adversely effect the employer.
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About the author
Robert Ian Goodman, Esq. represents clients worldwide in the areas of complex commercial immigration and international and domestic commercial law. Mr. Goodman also provides general counsel services to entrepreneurs and start-up businesses and counsels foreign businesses interested in establishing a presence in the U.S. marketplace and U.S. businesses interested in expanding abroad. Mr. Goodman is principal of Goodman Immigration. He is also Special Counsel to the international boutique law firm, Sharma & DeYoung LLP ("S&D"), where he directs the firm's commercial immigration practice. He also co-chairs that firm's Technology and Emerging Companies Practice Group and is a member of S&D's Commercial Litigation and Arbitration Practice Group.Website