Gary Vaynerchuk discusses how he uses social media to engage with his 500 or so employees and addresses the risks on The Ask Gary Vee Show, episode 176 (video below). Gary made his career using social media, and continues to do so in running his digital media company, Vayner Media. So it does not come as much of a surprise that he embraces using social media to engage with employees. He is correct in his position that “intent trumps everything.” He means that if employers have a good intent in engaging employees via social media, there will be less risk of litigation from its use. Gary is also correct in his position that employees can make up anything or sue on anything, and if being afraid of litigation is the standard about whether to engage in certain conduct, employers would have a very difficult time running a business. Gary notes also that employees are happy when he engages with them on social media, but he notes he does engage with respect, and does not want to make anyone uncomfortable.
I generally agree with Gary’s position, and employers should feel free to engage employees on social mediation as long as they understand the general rules of employee privacy issues that arise (and as noted below, this is nothing new with the development of social media).
California’s right to privacy
First off, in California, Article I, Section I of the California Constitution guarantees citizens a right of privacy:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
This right to privacy carries over to the workplace, but is even more protected when the employee is conducting personal activities during non-working hours. A person’s privacy expectation in their social media posts is very low since it is posted for the general public. But one could argue that off-work conduct (which includes social media activity) is part of the employee’s privacy right recognized in the California Constitution.
Furthermore, section 96(k) of the Labor Code provides that the California Labor Commissioner may assert on behalf of employees:
Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.
Indeed, employees have successfully alleged claims that an employer’s use of off-work conduct was used in making an employment decision that violated the employee’s privacy. For example, in Rulon-Miller v. IBM Corp. (1984) an IBM employee was terminated for an alleged conflict of interest due to her dating a manager of an IBM competitor. IBM warned the employee to stop dating the manager of the competition, and when she protested IBM terminated her employment. The court found that IBM violated the employee’s right to privacy in terminating her employment due to off-work conduct, and the jury awarded her $300,000.
Unreasonable intrusion into an individual’s private affairs
There is also a potential for employees to argue that it is intrusion into their private affairs. To be unlawful conduct in California, an intrusion into someone’s privacy must be an unreasonable intrusion into one’s seclusion or private affairs that is highly offensive to a reasonable person. A plaintiff can state a cause of action when their privacy is invaded in an offensive manner without consent, and it does not matter if the information was disclosed after the invasion. See Shulman v. Group W Prods. Inc. (1998). However, because an employer is following an employee’s posts on social media, it would be very difficult for an employee to establish that such an invasion occurred because the employee is posting the information publically.
So can employers use social media to follow and communicate with employees?
There is nothing illegal about employers or supervisors from following employees on social media. The information posted by the employees is publically shared, so it would be very difficult for employees to state that the employer somehow intruded upon their privacy by following or commenting about the information posted by the employee. However, employees do have a privacy interest in their off-work conduct and as established by the IBM case above, and employers must be careful in making employment decisions based on this information. So is social media off limits to supervisors or companies? No necessarily so as Gary states. Indeed, the IBM case above was decided in 1984, well before social media existed. Employers, managers, and supervisors always had to manage this risk – even before social media. Therefore, it is not per se illegal that companies follow and engage their employees on social media, as many companies are probably feeling to pressure to do so as this is becoming the standard way many people communicate. As Gary discusses, the fact that a company is engaging its employees on social media can be a huge employee morale boost, and a way to establish that the company cares about employees and is communicating with them on a less formal basis. Companies should approach the sensitivity of the information and privacy of employees just as they would have prior to the invention of social media.