Not so fast! Employees May Discuss Work on Facebook, But Still No Expectation of Privacy

Our ardent Facebook fans probably noticed a Time Magazine article we posted on our page last week noting that, in an employment lawsuit concerning unlawful terminations, the National Labor Relations Board recently ordered that five people that were fired for complaining about their employment on Facebook should get their jobs back, plus back pay.

The ruling is the most recent in a series of employee rights victories for employees turning to social media to discuss the conditions of their employment, a right protected by the National Labor Relations Act. We covered this topic and the NLRB’s efforts in this burgeoning area of law back in April 2011 in a blog post drafted by Jill Abrams, Esq. entitled “Do employees have the right to complaint about their jobs on Facebook and Twitter?.”

But a recent opinion issued by the American Bar Association is an important reminder that, although your right to discuss your employment on social networking websites is better protected today than it ever has been before, your employer still owns and controls any devices issued to you that you may use to access those sites.

In the context of employees communicating with their lawyers, the ABA announced last week that lawyers now have a duty to caution clients about using an employer’s devices such as a work computer or smartphone, to correspond with their lawyer. According to the ABA, clients may not have a reasonable expectation of privacy when they use an employer’s computer to send emails or to receive emails.

So, remember: your right to discuss the conditions of your workplace extend to social media sites like Facebook, but, according to the ABA, your right to privacy on devices issued to you by your employer have  not changed. Employers still often have policies reserving a right of access to your email, computer and any other devices from which you can correspond.

Do you think it’s time for us to reevaluate employees’ rights to privacy on devices issued by employers?

Abbey Spanier, LLP , located in New York City, is a well-recognized national class action and complex litigation law firm.