Blurred lines: social media and confidentiality in workplace investigations

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.

The NLRB has also weighed in on employer workplace investigation confidentiality policies. In July 2012, the NLRB struck down an employer’s confidentiality rules based on their potential effect to chill or prohibit the exercise of protected Section 7 rights. The NLRB concluded that, although confidentiality may be requested in specific situations, it should be on a case-by-case inquiry.

More recently, in July 2013, the NLRB held that two notices issued by an employer violated Section 7 of the NLRA: one “directing” employees not to discuss workplace investigations with each other and the second “recommending” that employees not discuss such investigations with other employees.

It may be only a matter of time before the EEOC joins the fray.

An August 2012 pre-determination letter issued out of the EEOC’s Buffalo, New York district office cautioned an employer that its policy of warning employees not to discuss harassment investigations with co-workers could be a violation of Title VII’s anti-retaliation policies. The letter seems to run afoul of the EEOC’s longstanding enforcement guidance that directs employers conducting investigations of workplace harassment to “protect the confidentiality of harassment complaints to the extent possible.” This may signal an emerging trend within the agency as a whole.

What should employers do?

Although there are no absolute guidelines, employers can consider the following steps to minimize risk:

• Implement narrowly tailored social media policies. An employer’s social media policy should be clear and specific, including providing specific examples of prohibited conduct, such as using social media to harass co-workers, and cautioning employees that they may be disciplined for engaging in harassing, intimidating, or unlawful conduct towards co-workers on any social media tools. An electronic communications policy can also establish the employer’s right to access any content on its own technology systems, so that if the alleged harassment occurs on a company device, the employer may access it and use the information as grounds for taking action. The NLRB has provided guidance on how to draft social media policies to avoid Section 7 issues. See our prior post here for our analysis of the NLRB’s guidance.
• Employers should not solicit employees to identify social media activity of their coworkers, as it could be construed as a violation of the Stored Communications Act (“SCA”). However, if an employee approaches the employer and provides information posted on his/her social media page, employers can likely rely on this information without running afoul of the SCA.
• Regularly review policies. Due to the rapidly evolving legal landscape, particularly with respect to social media, employers should consider reviewing their policies periodically to ensure that they are in compliance with Title VII, the NLRA, and existing and/or emerging state and federal legislation.

Stay tuned to the Employment Law Lookout for further updates. If you have questions or need more information, please contact the authors, a member of Seyfarth’s Privacy and Social Media Team, or your Seyfarth attorney.