Seyfarth Synopsis: Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to
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Monitoring Employee Communications: A Brave New World
Seyfarth Synopsis: This blog considers the blurring of the lines between personal and work-related communications which has created novel legal issues when it comes to determining whether an employer has the right to access and review all “work-related communications” made by its employees.
Over the last decade, communication via email and text has become a vital
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Blurred Lines: Social Media and Confidentiality in Workplace Investigations
By Uma Chandrasekaran and Annette Kim
Employers may need to tweak their workplace investigation policies in order keep complaints of twerking out of the workplace. Recent decisions and guidance from the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”) have spotlighted the need for employers to develop narrow policies while maintaining flexibility to address workplace-related concerns, including harassment on social media.
As we have blogged before here and here, the NLRB has actively scrutinized and stricken down employer social media policies as being overbroad and having a “chilling” effect on employees’ rights to engage in activity protected by Section 7 of the National Labor Relations Act (“NLRA”). Despite the NLRB’s decisions, employers cannot afford to turn a blind eye to their employees’ social media activities altogether, because social media harassment can, in certain circumstances, support Title VII harassment claims.
Notably, the First, Second, Seventh, Eighth and Ninth federal circuit courts currently allow an employee’s “off-the-clock” social media conduct to be considered as part of the “totality of the circumstances” to show a hostile work environment harassment claim under Title VII.
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