Monitoring the business email is a key responsibility for David in his role at work. In addition, he is tasked with maintaining and updating the company's social media presence. In the absence of his employer, particularly on slower days, David efficiently manages his time by utilizing the available resources, such as a computer and Wi-Fi, to also attend to his personal email and engage with his social network on Facebook. While he remains attentive to customers who approach him, he promptly returns to his tasks once the customer's needs have been addressed.
It is important to acknowledge that individuals similar to David are prevalent in today's workforce. The prevalence of the internet and social media in our daily lives has created a constant need to stay connected and engaged with the virtual world, even while at work. The act of going online during work hours has become increasingly common, whether it be through a company-assigned computer or by utilizing personal devices such as smartphones to access the employer's Wi-Fi network. This behavior raises questions about the boundaries between personal and professional use of technology in the workplace.
From a legal perspective, it is important to distinguish between ownership and possession. While David has permission to use the company's computer and Wi-Fi, he is merely in possession of them and does not own them. According to Black's Law Dictionary, "possession" is defined as the ability to exercise control over a physical object to the exclusion of others. Therefore, David has control over the computer and Wi-Fi and enjoys possession of them.
On the other hand, ownership is defined as having complete dominion, title, or proprietary rights over something. In this scenario, the employer has complete control over the office premises and equipment, including David's office computer. This means that the employer owns the computer and has the right to access it.
Given these legal distinctions, it raises the question of whether there are limits to an employee's right to privacy and the content of their communication. This is an important consideration in the workplace and requires a careful balance between the employer's rights and the employee's privacy.
In his book "The Employee: How Technology is Compromising Workplace Privacy," Frederick Lane highlights the stark reality that employees do not enjoy the same constitutional protections in the workplace as they do in a democratic society. Lane succinctly points out that the principles of the Constitution do not extend to private employers operating within a capitalistic work environment. This underscores the importance of understanding the limitations of privacy rights in the workplace and the need for employees to be vigilant in protecting their personal information.
In today's digital age, the rise of social media has enabled individuals to freely express themselves in a public forum like never before. However, it has become increasingly common for employees who post about work-related issues to face consequences, including termination.
Many individuals have found themselves in hot water after venting online about their jobs, only to discover that their employers have taken swift action by terminating their employment. In response to such situations, some employees have chosen to challenge their dismissal by filing a formal labor complaint with the National Labor Relations Board (NLRB).
It is important for employees to be mindful of the potential repercussions of their online activities, as employers are within their rights to take action against those who violate company policies or engage in behavior that is detrimental to the organization. By understanding the boundaries of acceptable online conduct and seeking recourse through proper channels, individuals can protect their rights and advocate for fair treatment in the workplace.
n 2010, a social services provider at Hispanics United of Buffalo, a nonprofit organization in New York, was terminated for discussing her working conditions on Facebook. Subsequently, her colleagues who commented on the post were also fired. The National Labor Relations Board (NLRB) determined that their dismissals were unlawful, as the Facebook post constituted a form of "concerted activity" for "mutual aid," which is explicitly safeguarded by the National Labor Relations Act.
Conversely, the NLRB did not rule in favor of a former Walmart employee who used derogatory language towards the Assistant Manager online and criticized his work on store displays. Despite receiving support from his coworkers in response to his posts, the NLRB concluded that this was not a protected group action (Wal-Mart, Case No. 17-CA-25030, July 19, 2011). This case involving Walmart helped clarify the definition of "concerted" according to the NLRB.
Overall, these cases highlight the importance of understanding the boundaries of protected speech in the workplace, particularly in the context of social media. It is crucial for employees to be aware of their rights and responsibilities under the National Labor Relations Act to avoid potential legal issues.
“An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted” .
In a previous memo, it was stated that the Board will protect social media posts that are made on behalf of other employees or aim to induce group action. This standard is broad and continuously evolving."
When employees become upset with a work situation, they often turn to venting online. Some may attempt to add humor and sarcasm to their posts in an effort to lighten the mood. However, while these posts may receive a lot of attention and shares, employers do not always see the humor in them. Many of these posts are deemed as tactless rants that reflect poorly on the company and ultimately lead to the employee's dismissal. It is important for employees to remember the potential consequences of their online behavior and to always maintain professionalism, even in moments of frustration.
In 2009, a ticket taker for the Philadelphia Eagles was terminated from their position after posting on social media that the team was making a foolish decision by not signing a particular player. Similarly, former Arizona Daily Star reporter Brian Pedersen faced dismissal for tweeting about a series of homicides in Tucson out of frustration with the lack of news coverage. One tweet read, “What?!?!?! No overnight homicide... You’re slacking, Tucson,” while another stated, “You stay homicidal, Tucson.”
The National Labor Relations Board (NLRB) upheld the legality of these dismissals, citing the offensive nature of the tweets, their lack of being considered concerted activity, and their failure to address working conditions. In a separate incident, a couple of food servers publicly called out customers who did not leave a tip, while an Illinois bartender posted a threatening message about patrons he deemed as “rednecks,” expressing a desire for harm to come to them as they drove home intoxicated. [JT’s Porch Saloon, Case No. 13-CA-46689 (July 7, 2011)].
These examples serve as cautionary tales about the potential consequences of posting inappropriate content on social media platforms, especially when it pertains to one's employment. Individuals need to exercise discretion and professionalism in their online interactions, as their words and actions can have real-world implications.
In an April 12, 2011 Memorandum, the Acting General Counsel of the National Labor Relations Board (NLRB) instructed that all cases involving employer rules prohibiting or disciplining employees for engaging in protected activity using social media platforms such as Facebook or Twitter should be submitted to the NLRB Division of Advice. Despite this directive, there is a mounting number of complaints from terminated employees who argue that their communication was protected, and this trend continues to grow each day.
Laws have been established to safeguard electronic communications. One such law is the Electronic Communications Privacy Act of 1986 (ECPA), which shields wire, oral, and electronic communications while they are in transit. Title I of the ECPA provides protection for communications during transit, while Title II, also known as the Stored Communications Act (SCA), safeguards communications stored in electronic storage, specifically messages stored on computers.
The utilization of pen register and/or trap and trace devices to capture dialing, routing, addressing, and signaling information for the transmission of wire or electronic communications is strictly prohibited under Title III, unless authorized by a court order.
It is important to note that federal statutes do not safeguard employees' personal use of the Internet during work hours. The Electronic Communications Privacy Act (ECPA) does not impose restrictions on employers reviewing emails stored on servers designated for internal electronic communication systems with restricted employee access. As stated by Privacy Rights.org, an employer has the authority to monitor any messages sent or received on systems owned by the company.
In the 2010 case of City of Ontario v. Quon, investigators discovered that a police officer was exchanging explicit messages. The court ruled that an employer has the right to review messages on employer-issued equipment, especially if there are valid work-related reasons to do so.
Under the National Labor Relations Act, employers are prohibited from restricting online communication regarding terms and conditions of employment when they allow employees to use company-provided Internet and email for personal use. Additionally, the Sarbanes-Oxley Act permits employees to report fraud or safety violations publicly without violating their employer's rights.
These legal precedents highlight the importance of balancing employee privacy with employer interests in maintaining a safe and productive work environment. It is crucial for both employers and employees to understand their rights and responsibilities when it comes to electronic communication in the workplace.
The employer has the authority to own the equipment and exercise management discretion, which allows them to block websites that are considered inappropriate for the workplace, such as social media sites. This is done to uphold the values of confidentiality and enforce sanctions for any violations. Additionally, the employer may visually monitor employees' computer screens during working hours and conduct random checks on the Internet history of company computers to track visited websites.
Furthermore, according to the USPS Domestic Mail Manual (DMM), an employer is permitted to open a letter addressed to an employee at the employer's address. This is all part of maintaining a secure and productive work environment.
All mail addressed to a governmental or nongovernmental organization or to an individual by name or title at the address of the organization is delivered to the organization, as is similarly addressed mail for former officials, employees, contractors, agents, etc. If disagreement arises where any such mail should be delivered, it must be delivered under the order of the organization's president or equivalent official. (DMM Chapter 508, Section 1.5.1).
As for other employers’ rights, employers may listen to an employee’s phone calls at work (Electronic Communications Privacy Act, 18 USC 2510, et. Seq), except that if all the parties are in the State of California (California Public Utilities Commission General Order 107-B), parties are required to be inform that the conversation is being recorded and a beep tone prompt is likewise required. Regardless of the state, employers are not allowed to eavesdrop on an employee’s phone call if the call is personal and not work related (Watkins v. L.M. Berry & Co., 704 F.2d 577, 583, 11th Cir. 1983).
When communicating with the public, it is likewise common for an employer to require an employee disclaimer to the effect that his views are personal and does reflect the company’s views. However, an administrative judge of the National Labor Relations Board ruled that this is not permissible:
"The requirement that a disclaimer be posted by the employee every time he or she speaks on work related issues and is identifiable as an employee of the employer, is unduly burdensome, well beyond any legitimate interest of the employer, and will have a tendency to chill legitimate Section 7 speech by the burden it brings to it. The Respondent's rule impinges on Section 7 activity beyond any reasonable accommodation with any legitimate concern."
This ruling is not final and executory as it is expected to be appealed and heard by the National Labor relations Board en banc. Regardless of the ruling in this case, it is best for employers to have a policy that draws the line between official and personal use of social media, especially in the workplace.
Company policies are most effectively communicated to employees through a comprehensive manual, new hire orientation, and seminars. It is advisable to involve the human resources and legal departments in the development of these policies. The more informed an employee is about the rules and the potential legal ramifications of non-compliance, the more likely they are to adhere to them.
While there are no definitive guidelines regarding the use of social media, it is wise for employees to exercise caution and refrain from airing grievances publicly online. It is always better to err on the side of caution. When engaging in private communications, employees can protect themselves by using their personal phones and ensuring privacy in their own homes.
In the event of any issues with employers, it is essential to follow the proper channels for resolution. Two adages come to mind in this context - "if you do not have anything nice to say, don't say anything at all" and, most importantly, "do not bite the hand that feeds you." Employees must maintain professionalism and respect in all interactions with their employers.
Comments