Employee Privacy and Off-Duty Conduct: Protected Activities, Social Media Policies and More

Employers are interested in maintaining a good company image, as well as ensuring that their employees continue to provide high levels of job performance. As can often be seen in the news, employees sometimes take actions while they are "off-duty" that can reflect poorly on a company or impact their job performance.

With the goal of balancing these interests, employers may be tempted to monitor their employees' social media activity or to subject employees to drug testing. Employers and their counsel must be aware of the various laws that prohibit employers from intruding into their employees' lives outside of work. Some states, including California, have laws prohibiting employers from taking any adverse job-related action based on a worker's lawful conduct when they are not at work.

Under the National Labor Relations Act (NLRA), it is also illegal for an employer to monitor or conduct any surveillance of employee union activities, including off-the-job meetings or gatherings. This rule also applies to any concerted activity even if no union is involved as long as employees are discussing their work conditions or terms of employment.

Listen as our distinguished panel guides employers and their counsel on how to navigate the thorny issue of managing employees' privacy. The panel will specifically address state and federal guidance on this issue, as well as how current trends in social media, concerted activities and the legalization of marijuana may affect an employer's analysis.

1. Overview of state and federal employee privacy laws
2. Recent guidance from NLRB regarding protected concerted activities
3. Recent court decisions regarding employee privacy
4. Best practices for drafting employer policies

The panel will review these and other relevant topics:

• What are the laws that govern employee privacy and prohibit employers from monitoring off-duty activity?
• What is currently considered a "concerted activity" by the NLRB?
• How are courts handling issues of employee privacy in today's world of social media?
• How can employers draft employee policies that balance their interests with employees' rights to privacy?
• Are social media exposures covered under employment practices liability insurance policies?