Why Can’t We Be Friends? Monitoring Employees’ Social Media

By Andrew Adams - Skoler, Abbott & Presser, P.C.

December 16, 2019

Employees received an early present on the social media front this fall. A recent decision from the Nation Labor Relations Board (NLRB) has set additional parameters on what employers may and may not do when it comes to monitoring employees’ social media (some may have been more obvious than others). The recent decision from the NLRB in National Captioning Institute, Inc. (NLRB 2019) discusses the limitations on employer surveillance in the age of social media.

Make Sure to Have those Away Messages Ready

Slack, Spark, Stride, Teams, Workplace . . . if you’re not one of the growing number of employers familiar with these services, you probably will be soon. With the rise of telecommuting and the open office, more and more companies are incorporating messaging and enterprise technology to enhance employee communication and workflow. It makes sense. How else can you communicate effectively with your team when all the other employees in your open office are trying to do the same thing?

“Workplace Chat” companies Slack and Workplace by Facebook boasted over 10 million active users and more than 5 million paid users in early 2019, and if investor backing is any indication those numbers will continue to rise. These services offer everything from enterprise tool integration and multi-user video conferencing to real time translation services. Most even allow filtering and real time monitoring of employee communication to protect against harassing or unlawful behavior. While useful in preempting lawsuits and HR worries, the downside of these à la 1984 capabilities is the ever-present temptation to peer into areas that can get employers in trouble.

The Board Decision

In early 2016, the National Association of Broadcast Employees & Technicians-Communications Workers of America, AFL­-CIO attempted to unionize National Captioning Institute, Inc. (NCI) employees in California and Texas. In response to these efforts, NCI’s CEO and COO began searching employees’ chat logs on the company’s Spark Messenger System (Spark) for union discussions.

If this had been the only surveillance conducted by NCI, the Board may have ruled in their favor. However, shortly after NCI discovered the Spark chats, they were also informed that employees had created a private pro-union Facebook group. NCI used the employee who had reported the group to clandestinely collect information, including the names of members and summaries of private discussions. According to the board, this surveillance ultimately resulted in the termination of two employees who were union supporters.  

Additionally, the Board found that NCI had violated Section 8(a)(1) of the National Labor Relations Act when it repeatedly solicited and received information from employees about the membership and the messages posted in the Facebook group page. While they did not rule on the Spark searches specifically, one board member found that the targeted searches of Spark to learn about the union organization drive did in fact constitute unlawful surveillance.  

The NLRB ordered NCI to reinstate both employees with back pay and benefits, pay for each employee’s search-for-work, and pay any additional taxes they may face for receiving lump sum back pay.  NCI was also ordered to cease and desist from engaging in coercive surveillance of employee union activity.

The Bottom Line

So what does this mean for your company?  Well, if you’re thinking of incorporating a “workplace community and productivity app” into your workplace, or already have, it’s essential to review not only your policies but also your practices regarding this technology. While the temptation to know exactly what your employees are thinking at any given time is understandable, employers should limit their monitoring activities to certain parameters, or risk finding out the hard way that their practices are unacceptable.