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Apr 20, 2023

Q&A: Set expectations for social media use to protect confidentiality

Privacy & ConfidentialitySafety and HealthWage and Hour 

Question: I just found out that employees are using their personal cell phones at work to snap and share pictures, in response to randomly timed daily prompts from an app called “BeReal.” Our policy prohibits cell phone use during work time unless it’s necessary for the job. Our manufacturing employees are only allowed to use their cell phones during breaks and meal periods. However, we don’t even want to allow employees to snap pictures in the lunchroom, let alone anywhere on company premises, due to privacy and security concerns. Can we stop this?

Answer: For the most part, yes, employers can implement and enforce policies that prohibit employees from taking photos and making audio or video recordings in the workplace, so long as the policy is narrowly drafted to protect legitimate business interests such as safety, privacy, confidentiality, and security. The terms of your policy and how you enforce it cannot run afoul of Section 7 of the National Labor Relations Act (NLRA), which protects nonmanagement employees’ right to discuss or complain about their wages, hours, and working conditions. Before creating any workplace policy that may impact Section 7 rights, consult with legal counsel to ensure your policy is lawful as written.

Before applying a workplace policy to specific employee conduct, HR should investigate the facts to ensure that the company can lawfully enforce its policy. For example, the NLRA may protect an employee who shares photos of a safety hazard with their co-workers online in an effort to get the company to fix it. However, the NLRA wouldn’t protect an employee who violates your cell phone use policy by posting random photos of coworkers at their workstations for the purpose of gaining internet followers. To the extent a workplace restriction potentially impacts Section 7 rights under the NLRA, your policy should set forth a clear business justification for the rule, such as protection of trade secrets or customer confidentiality. Keep in mind that employers have a duty to protect their employees’ reasonable expectation of privacy in the workplace. A coworker may give permission to be in a snapshot, but they shouldn’t be asked to participate in the first place, if the photo would violate your policy and isn’t being used to document a workplace safety concern or other protected activity.

For more information, see our Legal Guide, Electronic Communications in the Workplace and model Social Media Policy, or consult with your Vigilant Law Group employment attorney. Don’t know what “BeReal” is? Saturday Night Live explains it well in this hilarious skit. Apps and technology will continue to evolve, but you can address concerning behavior by periodically reminding employees of your policy (and the business reasons behind it) and by using caution before disciplining for violations.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.