Social Media, Employee Privacy and Concerted Activity: Brave New World or Big Brother?
Mello, Jeffrey A., Labor Law Journal
Advances in technology which allow tremendous portability and affordability of personal computers, personal digital assistants and tablet devices combined with the proliferation of social media networking sites have changed the way in which we communicate, both privately and publically. Individuals are now afforded the means to communicate with friends, co-workers and even strangers via networks that until very recently were not available. While e-mail has existed for several decades, new social media, particularly Facebook and Twitter, have not only greatly altered how both individuals and organizations communicate, but also changed the ways in which business is conducted as well as how people interact with each other in many of their personal and professional dealings.
As of December 2011, Facebook had more than 800 million active users, half of whom log on to the site on a daily basis and half of whom access Facebook through their mobile devices.1 Roughly 200 million of these members are in the United States, representing two-third of the population.2 Facebook is currently available in more than 70 languages around the world3and is estimated to reach 30 percent of global internet users.4 Twitter has approximately 300 million users,5 although participation in both sites continues to expand in both numbers of members and volume of communications.
The use of social networking is not limited to personal communications. 46 percent of information technology professionals believe that online social networking is an important business tool and 31 percent of that number considered it to be essential to contemporary business. More than 25 percent of organizations with 500 or more employees have developed some sort of social networking presences as a business tool.6 A recent poll conducted of human resource professionals by the Society for Human Resource Management found that 68 percent of organizations were using social media for external communications, recruiting and marketing to engage customers, potential customers and potential employees.7 Employers see tremendous benefit from social networking which include facilitating collaboration among employees, improved efficiencies in operations, facilitation of orientation and learning, internal brand building, employee and organizational development and faster development of new products and services.8 However, 85 percent of IT professionals acknowledge that they are aware of employees visiting social networking sites for personal usage while at work.9 The use of online social media has contributed to the farther blurring of the separation between employees' work and personal lives.
II. Traditional Employer Monitoring - E-mail and Internet Usage
A significant number of employers monitor the communications and online activities of their employees in the workplace. I0 In fact, 43 percent of employers were actively monitoring their employees' internet use in 2007, the most recent year in which a reliable widespread survey was administered." Most large employers have electronic communications policies that alert employees that the employer reserves the right to conduct such monitoring. E-mail activity is also widely monitored. I2 Most of this monitoring is accomplished not manually but electronically via software programs which can track time, content, size, attachments and recipients.13 This tracking can also be used on personal e-mail accounts (such as those from AOL, yahoo and Google) which are accessed from the employer's network. I4 96 percent of employers who monitor their employee e-mails track incoming as well as outgoing messages.15 It is, however, more difficult for employers to monitor text and email messages sent from employees' personal personally-owned communication devices than from those provided by the employer.
There are many reasons why employers engage in monitoring the electronic communications of their employees. The first is to protect the employer from a variety of legal liabilities which could come about as the result of the content of such communications. …