In addition, that same survey revealed that an overwhelming majority of adults accessing the Internet are also fans of social media sites such as Facebook, LinkedIn, Instagram and Twitter. But just because people possess the technological ability to update their status on Facebook anytime, does that mean it is legal for an employer to “snoopervise” that activity?

The Feds have their say
In 1935, Congress enacted the National Labor Relations Act (NLRA). The law was designed to protect the rights of employees and employers and curtail certain private sector and management practices that could damage the general welfare of employees, businesses and the American economy.

According to employment law attorney Bill Nolan, office partner of the Columbus office of Barnes & Thornburg, the NLRA “forbids employers from chilling the communications of employees about the terms and conditions of employment. Therefore, social media monitoring, unless done carefully, can be troublesome.”

Nolan explains the adjective ‘carefully’ by saying the monitoring “should be targeted.” He advises employers to be certain about why they are perusing an employee’s social media activity and to keep that goal in mind while they are conducting their investigation.

For example, if an employee properly communicates an idea online, such as he or she thinks they should be paid more, their behavior is likely protected by the NLRA.

Countless cases can be found on the National Labor Relations Board’s (NLRB) website, including one from Muncie, Indiana. In that scenario, the owner of a skilled nursing facility enacted a new social media policy and required employees to sign it or face termination. One employee balked, arguing the policy was too stringent. After being fired for not signing the policy and discussing her grievance with co-workers, the employee filed a complaint with the NLRB’s Regional Office in Indianapolis indicating rights extended to her under the NLRA were violated. When the NLRB informed the employer it would file a complaint against the business for its policy, the company relented. Not only was the former employee reinstated with full back pay of nearly $12,000, the nursing facility revamped the policy by removing any illegal language.

However, companies do have legitimate privacy concerns, and “keeping an eye on employees protect” themselves, says Nolan.

One topic he advises employers to steer clear from is religion. “There’s almost never a good business reason to investigate an employee’s religious practices. Be sure you if you have to investigate, there is a legitimate business reason to do so,” says Nolan.

Perusing pre-hire profiles
While the NLRA restricts employers from creating overly onerous social media policies, similar protections don’t necessarily extend to potential hires. Moreover, information mined about candidates from social media web sites may not necessarily reflect how a person will succeed in their job.

“People worried about privacy don’t like prospective employers ‘snooping.’ But, if it’s in the public domain, is it really snooping?” says Nolan.

For his part, Nolan opines that if information is shared on a social media web site, it’s in the public domain. That makes it fair game.

However, he also cautions employers to rely on tidbits about job candidates gleaned from the Internet. First, they may even be true. Secondly, the information might sway an employer to make a decision about an applicant they might have otherwise.

Despite the potential pitfalls, employers are increasingly checking out potential employees online. According to a 2013 survey conducted by CareerBuilder, 39 percent of employers investigated job applicants online, while 43 percent reported finding something about the candidate online that led them to stop considering that person for the position.

Conversely, Internet snooping proved positive for some employers. Nineteen percent reported discovering beneficial information about a candidate online that led to the candidate’s hiring.

In an article in the November 2014 issue of Entrepreneur magazine, Nancy Flynn, founder and executive director of the ePolicy Institute, advises employers to follow three guidelines relating to employee use of the World Wide Web. They are:

·         Establish a formal policy that clearly states with whom employees may communicate with during the workday,

·         Educate employees about the company’s digital dos and don’ts; and

·         Enforce the rules evenly among employees. When company policies are not enforced equally among employees, cries of discrimination and unfair treatment can arise.

No matter what, Nolan doesn’t think employers usually conduct daily witch hunts about employees online. “I don’t think employers generally aren’t out there fishing,” he says.