Parker County Today January 2018 - Page 81

Social Media and Employment Law 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 your- self. 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 subordi- nate 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 off- duty 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 intention- ally inflict emotional distress, if the employee was acting within the scope of his authority, and for the benefit of the employer. Again, 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 govern- ment 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 ѡȁ啕ϊdɽ٥)ѡѕЁѡ́ЁѕȁՉɸ5)啔ѥ٥ѡЁ͍͕́ݽɬɕѕՕ́ݥ)ͥѡɽѕѥѡЁи)Qٽͽѡ͔Օ̰ȁЁЁٔѡ)ͽɽѕѥ݅ɹѡ啕̰́ȁ́Ѽ)ɕєͽѕȁѕɹЁͅɥѕ)́ݡɔɅѕѼѡϊd䁡)Q́ݥЁȁݡЁ啔ȁЁ) ͥ́ѡаѡȁ͕́ɽɥєqȁͤ)́́ݡɔ䁹͔̻t]Ё́ՔѡЁͽe)䁅ѥ٥ѥ́ɔѡЁͽéݸȰѡЁݽɭ́䁅)́ѡͽ́ЁѕəɔݥѠѡɥ́ѡ̸%)嵕Ёѕа啕́ɔɕѼݡЁѡݥ)ѡȁݸɕѥ́́ݡЁѡ䁑́Ёٕ͕)ЁݽɭȰѡȰȁѡˊé́ȁѽ)̸)Q5AѹȰ4@1܁=%ѕхєQ(ఀܸظɅɅѥՑɥ䰁ٕ٥)ɕхєͥ́܁ͥаͥ́Aɭȁ չ䰁Q̸)Q́ȁѡQ́ ȁչѥ܁ɥ%ѥє) ɥ1܁ѽɹ̀ Ёѽɹ̸(%ѕхєɽхIMѠ Q́ ܸظ ܸظЁ)iDAѥɕܰQѡ0Iɑͽ-ɱP5Qѡ(5(