The use of social media by employees has become quite a hot bed for employment law related claims and issues for the employee and the employer . At the point , the law is struggling to keep up with the subject . As the law evolves , employers and employees will face uncertainties in understanding the legal consequences of social media usage , but the old adage “ fools ’ names and fools ’ faces often appear in public places ” should be a reminder that the loose and intemperate comments that people share with each other over drinks are probably not best posted online . And now , with most every person carrying a handheld audio and video recording device , their smart person , your public comments and actions can be recorded and posted by someone other than yourself .
Besides an employer ’ s concerns about a known employee postings potentially being considered the representations of the employer which could affect the employer ’ s business , employers are particularly concerned that their employees ’ online postings could lead to liability for employment claims . For example , could an off duty employee ’ s statements about a co-worker or subordinate result in a harassment claim against the employer ? In most instances , the answer is “ no .” An employer generally cannot be held liable for conduct that occurs outside the workplace by offduty employees , unless there is some nexus between the conduct and the work environment . So , the “ no ,” has the potential for “ yes ” under certain circumstances . This nexus is a factual determination that is examined by the courts on a case by case basis , so it may take lengthy and expensive litigation to ultimately determine if the employer is liable or not . Furthermore , under Texas law , employers could be vicariously liable for defamatory statements , statements that invade someone ’ s privacy or intentionally inflict emotional distress , if the employee was acting within the scope of his authority , and for the benefit of the employer . Again ,
Social Media and Employment Law
these determinations are factually based and determined on a case by case basis .
On the employee side , employees must understand that the First Amendment to the US Constitution provides little protection for employees . The First Amendment restrains only government action and does not restrict private sector employers from taking disciplinary action based on an employee ’ s online conduct , whether on or off duty . Moreover , although the First Amendment does apply to public employees , the government employer still has wide latitude to regulate their employees ’ online speech provided the content of the speech is not a matter of public concern . Most employee online activity that discusses work-related issues will fall outside the protection of the First Amendment .
To avoid some of these issues , or at least give the employers some protection by warning the employees , is for employers to create social media and computer and internet usage written policies which are incorporated into the employers ’ policy handbook . This will make it clear what an employee can or cannot do .
Besides that , another old adage seems appropriate , “ your business ends where my nose begins .” While it is true that a person ’ s off-duty activities are that person ’ s own affair , that works only as long as the person does not interfere with the rights of others . In an employment context , employees are free to do what they will in their own free time , as long as what they do does not adversely affect coworker , the employer , or the employer ’ s clients or customers .
Tim Mendolia , , Partner , M & P Law Office , 6900 E . Interstate 20 , Aledo , Texas 76008 , 817.546.4100 , a general practice , including , criminal , family , juvenile , civil , real estate , business law since 1994 , and since 2003 in Parker County , Texas . Tim is a member of the Texas Bar Foundation and 2017 American Institute of Criminal Law Attorneys 10 Best Attorneys .
Zachary Q . Pettigrew , Timothy L . Richardson , Kimberly T . Mendolia , Timothy J . Mendolia 6900 E . Interstate 20 Frontage Rd . South H Aledo , Texas H 817.546.4100 H 817.546.4104 fax
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