Digital Workplace Discussions and Employer Liability

Labor & Employment @lert

Date: January 29, 2018

Employers looking to minimize liability and related discovery challenges in legal proceedings are facing another foe: employees expressing legally unsuitable views involving social issues on internal workplace digital messaging apps. Since the news broke about the class action lawsuit against Google involving a former employee’s now-viral memo addressing workplace diversity, employers are asking: How do we monitor and control employees’ digital discussions on our company systems?

Internal digital discussions can be discoverable in legal proceedings and potentially subject an employer to liability, so it is important for employers to limit liability exposure for employee misconduct occurring on their company systems. In addition to productivity concerns, employers should consider monitoring internal systems to detect and deter unlawful or inappropriate conduct as early as possible. In any case, employers should be quick to investigate complaints about a violation of the company’s anti-harassment policies.

While monitoring, employers must comply with several laws, including federal and state laws regarding privacy, employment discrimination, and employees’ rights under the National Labor Relations Act to engage in certain kinds of protected speech. Employers seeking to minimize risks while monitoring internal digital forums should consider incorporating the following best practices:

  • Balance the business needs of an internal workplace messaging app and associated monitoring of employees’ digital discussions against the legal risks and impact on workplace culture.
  • Review company policies surrounding information technology, social media, company communications, harassment and discrimination, and use of company property. Employers should consider implementing policies regarding internal workplace messaging apps that include, at a minimum, providing notice that (1) employee communications may be monitored, (2) employees should have no expectation of privacy, and (3) employee discussions should be in compliance with company policies. Further, these policies should be reviewed and updated regularly to ensure compliance with any changes to the law or to reflect important societal changes.
  • Require written acknowledgement of and consent to monitoring digital discussions in the workplace. Consider including contemporaneous acknowledgement through pop-up windows that employees are expected to comply with company policies on digital discussions.
  • Ensure consistent enforcement of company policies—including when violations occur in digital forums.

For more information, please contact:

M. Scott Young

Candice S. Thomas

or any member of our Labor & Employment group.

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