PRIVACY AND THE EMPLOYMENT RELATIONSHIP
Technology and Social Media. Employers and employees are struggling to define the boundaries of appropriate employee use of technology, including social media, as well as appropriate employer monitoring and management of electronic data. In addition to concerns about employee productivity, the sophisticated electronic communication tools available to employees create new challenges for businesses to consider, including potential harm to reputation and brands, theft of trade secrets and other confidential information, and potential liability for employee behavior online. For example, an employer may be liable for an employee’s online comments that are discriminatory or defamatory, even if the employee posts from a personal computer on personal time. Likewise, an employer may be liable for an employee’s online endorsements of the employer if the employee does not properly disclose her affiliation with the employer. In addition to current employee issues, many businesses are also increasingly using social media and other online technology tools to market their organization and to search for, recruit, and screen potential employees. The legal obligations and rights of employers are continuing to evolve as technology changes. Nevertheless, employers can anticipate and plan for many of the legal risks associated with the use of technology in the workplace by applying existing laws to what we know about new electronic tools. Although new technological tools may ultimately be a “game changer” for employers, there are a number of practical steps that employers can take based on the law today to manage legal risk in this constantly evolving frontier.
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