Workers and Unions beware of managers peeping at “private” social media

Union members, representatives and other workers' rights activists should be aware of a new trend among management involving social media.  Courts and the National Labor Relations Board have become increasingly faced with cases in which a manager attempts to coerce an employee into giving that manager access to the employee's social media account, in order to enable the manager to check out what other coworkers and employees are "saying" and "sharing" online.  Managers are also asking workers to share their passwords, or adding them as "friends" on Facebook, in order to gain access to the activities of and, statements made by, the Union that may only be intended for members. 

These types of scenarios have yet to be worked out conclusively in terms of the limits of privacy law, but courts have found that actions like this may invade the privacy rights of the person who's page the manager ultimately views via coercion. 

For instance, in Ehling v. Monmouth Ocean Hosp. Serv. Corp., D.N.J., No. 11-3305, a supervisor gained access to the contents of a union activist employee's "friends-only" Facebook page allegedly through strong-arming or coercing one of that employee's Facebook friends.  In this instance, the Facebook posts were accessible only to the union activist employee’s Facebook friends, including the coerced employee.

Expectations of privacy are established by social norms, the court said.  The issue was whether Facebook posts to a limited number of Facebook users enjoy a reasonable expectation of privacy.  The court concluded that, depending on the facts in that particular instance, they might—and the case was allowed to proceed. 

Although retaliation against workers who exercise their right to engage in protected, concerted activity regarding their working conditions, even through social media, remains unlawful (see other previous labor law updates available on this website), the bottom line is clear.  Watch out, even if you believe your social media comments, posts, or pages are private, or shared with only a limited few, you can never really be sure.

By Lisl Duncan

Legal Developments