(Source: Conference Reporter Newsletter 04/04/2019)
At the conference in Tampa, a nationally-known labor arbitrator gave a lecture on social media. Here are four take-aways.
You posted it, you live with it
This aphorism refers to the following doctrine: reasonable expectation of privacy. The Supreme Court created this doctrine as a way to draw the line on what the law will protect when it comes to the privacy of the individual. The trend in court decisions today is that the person who posts does not have a reasonable expectation of privacy.
Employees have argued that they intended to keep information posted on Facebook, Instagram, etc, private and shared only with their friends, and not their employer. These employees want the judge or arbitrator to protect their postings.
However, the trend in the courts and among arbitrators is going the other way. The privacy argument is not controlling. If the employer can show that the information is relevant, the arbitrator will admit the postings. In a sense, these decision-makers are saying: you posted it, you live with it.
Employer-owned equipment: employer has access
This trend follows the first one. The Supreme Court suggested in one of the early cases that employees who are using the employer’s device (cellphone, laptop, etc.) do not have an expectation of privacy. The employer has a built-in business reason to look into such a device.
But this should never become controversial or litigated. Wise employers have a policy which protects the employer’s interest. And employees understand from reading the policy what the employer has access to, including whenever the employee may have used the equipment off-site or after-hours.
Privacy is not dead
There are two laws which apply: the Stored Communications Act and the Electronic Communications Privacy Act. There are also state laws. The federal laws are extensions of the wiretap laws. They are intended to protect the privacy of individual communications.
For example, employees were using a group chat to air their complaints. One of the employees had a supervisor who wanted the password in order to read, and possibly discipline, for what was said. And the supervisor pressured the employee to disclose the password which the employee did. That employer was found guilty of violating the two aforementioned federal laws.
The take away: if there’s evidence that an employer gained access to a social message site and did so using nefarious or deceitful means, there is a valid basis for the arbitrator to not admit such evidence.
Vulgar messages in today’s culture
Arbitrators recognize the changes which have taken place in both the words used and the mediums. The younger generation uses the internet as an extension of their life. And some will write as they talk: vulgar or sophomoric.
In a case involving both romantic and boorish email messages to a woman, the arbitrator reinstated the employee who sent the questionable emails over the employer’s server. That employee: 1) got his work done and 2) did not send any emails that were pornographic or unwelcome. In short, the grievant was sending adolescent emails to his lover. The employer jumped to discharge and should have used progressive discipline.