Are There Legal Issues With Tracking Ex-Employees' Social Media? - In House
In House - The FindLaw Corporate Counsel Blog

Are There Legal Issues With Tracking Ex-Employees' Social Media?

It's not unusual for employees who are fired to walk out the door with a bit of resentment. Even those who quit might leave on poor terms. But with the rise of social media, the anger of an ex-employee can be easily amplified. We're not talking about just a few upset tweets here, but things like potentially damaging, even defamatory, statements on review sites like Yelp or recruitment platforms like Glassdoor.

To help monitor and minimize such damages, managers may be tempted to track employee's social media post-firing. But what sort of legal issues might be involved?

Former Employees on Social Media

A company's right to control the public speech of former employees is fairly limited. Unless an employee has signed a nondisparagement agreement, there's not much legal recourse available when a worker goes on to, well, disparage the company after they leave.

That doesn't mean you can't keep tabs on what they say, however. There's no "legal impediment to viewing information posted publicly by a former employee," Anne E. Kane, a partner at Schnader Harrison Segal & Lewis in Philadelphia, recently told the Society for Human Resource Management. Thomas Rees, head of the litigation and employment practice at High Swartz LLP, recommends monitoring employee's social media after they leave the company in order to make sure trade secrets or confidential information isn't shared.

Then there's the question of who takes responsibility for such issues. You may think that handling social media issues with past employees would fall to the company's human resources department, or perhaps the marketing team. But that's not what many HR professionals think.

"These seem more like legal or business matters," Kathleen Monast, an HR director, told the SHRM. An employee who is collecting workers compensation, for example, who then posts images of themself jet skiing may raise issues best handled by the company's lawyers. Indeed, the person best prepared to respond to former employees' social media use will depend on the nature and severity of any issues raised by such use.

Make Sure You're Aware of Local Social Media Laws

Still, employers should be cautious -- particularly around how they connect to those ex-employee social media accounts. There may be state laws preventing companies from demanding access to social media information or deceptively "friending" employees, Kane says.

California, for example, prohibits employers from requesting that employees divulge any personal social media information, except in limited circumstances. Illinois has a similar law. In total, 25 states have enacted some form of social media privacy laws respecting employers -- any of which could come in to play when tracking employees' social media use.

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