Academic journal article Rutgers Computer & Technology Law Journal

Employment & Social Media Privacy: Employer Justifications for Access to "Private" Material

Academic journal article Rutgers Computer & Technology Law Journal

Employment & Social Media Privacy: Employer Justifications for Access to "Private" Material

Article excerpt

I. INTRODUCTION II. BACKGROUND        A. General Expectation of Privacy        B. Invasions of Privacy in Employment Context        C. Social Media        D. Ehling v. Monmouth-Ocean Hospital Service: the            Facebook Incident III. EMPLOYER ACCESS TO EMPLOYEE SOCIAL MEDIA        CONTENT        A. Overview of Denying Employer Access        B. Overview of Allowing Employer Access        C. Role of Social Media and Employment IV. CONCLUSION 


Most users of social media websites would agree that protecting their posts from unwanted eyes is important. Speaking even more generally, most people are keen to keep certain things private. Coincidentally, most employers would agree that protecting themselves from liability because of the "private" actions of their employees is equally important. Even more generally, as an example, the public might feel they have a right to know if a doctor who is about to operate on them went out drinking the night before. As the job market becomes increasingly competitive, and businesses become highly scrutinized, a number of employers have gone so far as to require employees to disclose their login information to social media sites they belong to in order to monitor their activity. (1)

Today, social media has permeated the daily lives of millions and millions of people, but the legal implications of this movement are still evolving daily. As social media has gained popularity nationwide, a myriad of new legal issues have arisen regarding the accessibility of information on sites such as Facebook and Twitter. Specifically, labor and employment law has seen a breadth of new challenging legal issues that revolve around social media use. (2) Social media companies have responded to their members' concerns by adding or updating certain "privacy settings" within the websites. (3) Through the independent actions of employers and employees, tensions arose, pitting the privacy concerns of employees against the business interests of employers. Employers clearly have a strong interest in maintaining a certain business image, as well as providing a safe and secure workplace to both their employees and consumers alike. (4)

Conversely, employees are resistant to succumbing to what amounts to little more than a general invasion of privacy by their employers. (5) All future and current law must consider these competing interests and balance them accordingly. A cursory search of the case law in this area reveals there is no bright-line, consistent approach that can apply across the board, and this note will not argue for one. Instead, courts should use a fact-based inquiry that examines the competing interests on a case-by-case basis, which best serves both employers and employees.

Part II of this note examines the general expectation of privacy stemming from the United States Constitution, and specifically how that expectation affects the private electronic communications of employees on social media sites. Part II includes what role this general expectation of privacy has in the context of both private and public employment. In working through the employment issues, the analysis will fall under two foundational areas of labor law, the National Labor Relations Act ("NLRA") and the National Labor Relations Board ("NLRB"), and examine what, if any, privacy protections they provide. Part II concludes by considering what specific areas of the employee and employer relationship retain privacy rights and what areas remain open to interpretation by case law or legislation.

Having addressed the law, Part III will more generally discuss employer accessibility to the social media content of their employees, including a discussion of "privacy settings" and their legal impact on employer accessibility. Here, specific cases show a fundamental split where some courts protected employer access while other courts denied employers such access. A comparison of these two types of case law will exemplify some of the policy concerns and policy justifications courts have considered in deciding such cases. …

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