Week 7 Develop a Plan to Manage Change and Analyze SC Johnson A Family Company Social Media Policies

Week 7 – Assignment 1: Develop a Plan to Manage Change

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Managing change is the process of planning, implementing and sustaining change in organizations. Individuals all have their own unique “depiction” of what change represents, and from this, they formulate their attitude and reactions to the change. Some actively resist the change, but many also use more passive resistance, which is the most difficult. It is not always obvious that the person resists change because they do nothing observable that shows their resistance the change. Change offers organization new realities that are only successful if employees accept and try to meaningfully interpret it.

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Like the cartoon above, imagine that as a manager you are announcing an organizational change to your team. Although the team members aren’t openly expressing any feelings about the change they have various positive and negative thoughts. Now select three thoughts, at least one that could be assumed resistant or, at least, not supportive of the change displayed by different team members. Then decide the best strategies to address those team members concerns to help them get on board and support the change.

Develop a plan explaining what approaches, methodologies or tools you might use to address resistant team members. Determine which areas team members are targeting regarding their resistance to the change: the planning and implementation; the proposed change, or the individuals leading the change efforts.

Length: 1-2 pages, not including title and reference pages

Include a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing.

Assignment 2: Analyze SC Johnson A Family Company’s Social Media Policies

The saying “an ounce of prevention” is certainly worth much more than “a pound of cure” has been around for ages but it has never been more appropriate than when a company needs to manage the use of technology and social media specifically in the workplace. A good company social networking policy generally defines “social networking” and establishes clear purposes for the policy along with expected behavioral norms; provides guidance regarding use of social media associated with the organization, employees or customers; refers to proprietary and confidential information at risk; and outlines disciplinary measures for violating the social media policy. Some companies have effective social media networking policies that have been utilized as best practices across industries.

Begin this assignment by obtaining a copy of SC Johnson A Family Company’s social media policy. You can find examples using the Internet. Know that in some cases the social media policy might not be a separate policy, but is either included in an overall technology policy or the employee policy manual. (I will be comparing this information with my company’s social media guidelines)

Is there a clear purpose underpinning for SC Johnson’s social media policy?
What image of social media is portrayed from the overall policy?
What concepts of social media and employee functions are identified?
What social media challenges are identified?
What policy strategies have been selected to address these challenges?

Now, review the Social Media Guidelines from SC Johnson A Family Company organization and summarize the information you learned in a white paper for a new company ready to write their first social media policy. Be sure to include your recommendations.

Length: 1-2 pages, not including title and reference pages
Include a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing.

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N U M B E R S , FA C T S A N D T R E N D S S H A P I N G Y O U R W O R L D A B O U T F O L L O W D O N AT E

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Social Media and the Workplace
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BY KENNETH OLMSTEAD (HTTP://WWW.PEWINTERNET.ORG/AUTHOR/KOLMSTEAD/) , CLIFF LAMPE
(HTTP://WWW.PEWINTERNET.ORG/AUTHOR/CLAMPE2/) AND NICOLE B. ELLISON (HTTP://WWW.PEWINTERNET.ORG/AUTHOR/NELLISON/)

M Y A C C O U N T 

About Pew Research Center

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http://www.pewinternet.org/author/kolmstead/

http://www.pewinternet.org/author/clampe2/

http://www.pewinternet.org/author/nellison/

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/

(http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/) Social
media influences and permeates many aspects of daily life for Americans today, and the workforce is no exception.
These digital platforms offer the potential to enhance worker productivity by fostering connections with colleagues and
resources around the globe. At the same time, employers might worry that employees are using these tools for non-
work purposes while on the job or engaging in speech in public venues that might reflect poorly on their organization.

A Pew Research Center survey of 2,003 American adults (including 795 who are currently employed on a full- or part-
time basis) conducted Sept. 11-14 and 18-21, 2014, finds that social media plays some role in the lives of many
American workers – but that role is not always clear-cut or entirely positive.

Workers turn to social media for a range of reasons while at work, with taking a mental break being among
the most common

Today’s workers incorporate social media into a wide range of activities while on the job. Some of these activities are
explicitly professional or job-related, while others are more personal in nature. The survey asked Americans who are
employed full- or part-time about eight different ways they might use social media while on the job and found that:

34% ever use social media while at work to take a mental break from their job

27% to connect with friends and family while at work

24% to make or support professional connections

20% to get information that helps them solve problems at work

17% to build or strengthen personal relationships with coworkers

17% to learn about someone they work with

12% to ask work-related questions of people outside their organization

12% to ask such questions of people inside their organization

As noted above, 17% of workers say they use social media to build or strengthen personal relationships at work – but
the transparency that social media facilitates comes with costs as well as benefits. Some 14% of workers have found
information on social media that has improved their professional opinion of a colleague; at the same time, a similar
share (16%) have found information on social media that has lowered their professional opinion of a colleague.

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-01/

(http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-02/)

Younger workers are more likely than their older counterparts to say they have discovered information about a
colleague on social media that lowered their professional opinion of them – but also are more likely than older workers
to have found information that improved their professional opinion of a colleague.

Some 23% of workers ages 18 to 29 report that they have discovered information on social media that improved their
professional opinion of a colleague. By comparison, just 12% of workers ages 30 to 49 and 9% of workers ages 50 to 64
have experienced this. Similarly, 29% of these younger workers have discovered information that lowered their
professional opinion of a colleague: 16% of those ages 30 to 49 and 6% of those ages 50 to 64 indicate that this has
happened to them.

Many employers have rules for how employees use social media at work

Many workers report that their employers have policies about social media use on the job, or about how employees may
present themselves in various online spaces. Half of all full-time and part-time workers (51%) say their workplace has
rules about using social media while at work (45% say their employer does not have these policies), while 32% report
that their employer has policies about how employees may present themselves on the internet in general (63% say their
employer does not have these policies).

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-02/

(http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-03/)

Policies that regulate how employers present themselves online outside of work may be expected to influence whether
these workers use social media at all. However, this does not seem to be the case: Fully 77% of workers report using
social media regardless of whether their employer has such a policy in place.

At the same time, there is some evidence that workplace policies concerning social media use while on the job may have
an effect. Workers whose companies have policies regulating social media use at work are less likely to use social media
in certain ways:

30% of workers whose companies have an at-work social media policy say they use social media while on the job
to take a break from work, compared with 40% of workers whose employers do not have such policies.

20% of workers whose employers have at-work social media policies say they use social media to stay connected
to family and friends while on the job, compared with 35% of workers whose social media use is not regulated at
work.

Only 16% of workers whose companies regulate social media at work say they use social media while working to
get information that’s helpful to their job, compared with 25% of those whose workplaces have no such
regulations.

On the other hand, workers are equally likely to say they use social media for a range of purposes regardless of their
workplace policy, including:

Making or supporting professional contacts that help them do their job

Learning more about someone they work with

http://www.pewinternet.org/2016/06/22/social-media-and-the-workplace/pi_2016-06-22_social-media-and-work_0-03/

Building or strengthening personal relationships with coworkers

Asking work-related questions of people outside their organization

Asking work-related questions of people inside their organization

Relatively few workers use specific social media platforms for work-related purposes, and the impact of that
use is not always clear-cut

A relatively modest share of workers say they have incorporated specific social media platforms into their day-to-day
work lives:

19% of workers say they ever use Facebook for work-related purposes.

14% ever use LinkedIn for work-related purposes.

3% ever use Twitter for work-related purposes.

9% use a social media tool provided by their employer for work-related purposes.

5% use social media platforms other than the ones listed above for work-related purposes.

But among the group that answered yes to at least one of the items above – that is, the subset of workers who use at
least one social media tool for job-related purposes – large shares see certain positive or beneficial impacts on their job
performance:

78% of workers who use social media platforms for work-related purposes say social media is useful for
networking or finding new job opportunities.

71% of these workers say social media is useful for staying in touch with others in their field.

56% say it is useful for connecting with experts.

51% say it is useful for getting to know their co-workers on a personal basis.

46% say it is useful for finding information they need to do their job.

On the other hand, these workers are divided on the utility of social media in other respects, especially when it comes to
the impact of social media use on their own job performance:

56% of workers who use social media platforms for work-related purposes agree that social media distracts from
the work they need to do, with 30% agreeing strongly. Some 42% of these workers disagree that social media is a
distraction.

54% of these workers agree that social media breaks help them recharge at work. A statistically similar
proportion (46%) disagree that social media breaks help them recharge while on the job.

51% of these workers agree that social media use at work lets them see too much information about their
coworkers; 47% disagree with this statement.

Helping workers understand and follow social
media policies

Kimberly W. O’Connor a, Gordon B. Schmidt a,*, Michelle Drouin b

a Division of Organizational Leadership & Supervision, Indiana University-Purdue University Fort Wayne,
2101 E. Coliseum Boulevard, Fort Wayne, IN 46805, U.S.A.

b Department of Psychology, Indiana University-Purdue University Fort Wayne, 2101 E. Coliseum Boulevard,
Fort Wayne, IN 46805, U.S.A.

Business Horizons (2016) 59, 205—211

Available online at www.sciencedirect.com

ScienceDirect
www.elsevier.com/locate/bushor

KEYWORDS
Social media policies;
Social media;
Facebook;
Young adults;
Social networking

Abstract While social media can have significant benefits for organizations, the
social media presences and postings of employees can be problematic for organiza-
tions. This is especially true when employees have connections to co-workers and
managers. Workers posting content deemed inappropriate or detrimental to the
organization has led to a significant number of workers being fired for their social
media behavior. To avoid such situations, organizations should create social media
policies to guide employee content. Organizational implementation of social media
policy is on the rise, but serious questions remain as to how to make it effective. One
crucial question is how well employees know and understand their employer’s policy.
In this article, we discuss how to communicate social media policies to workers and
help their understanding. To inform our recommendations, we draw on exploratory
data from a sample of young adult workers regarding their knowledge of their own
company’s social media policies.
# 2015 Kelley School of Business, Indiana University. Published by Elsevier Inc. All
rights reserved.

1. The impact of social media behavior
on employment status

When factory worker Ashley Heffran learned she had
received a $100 holiday bonus from her company,
she turned to Facebook to praise her employer. She
posted: ‘‘I was wowed by this today. Feels great to

* Corresponding author
E-mail addresses: oconnok@ipfw.edu (K.W. O’Connor),

schmidtg@ipfw.edu (G.B. Schmidt), drouinm@ipfw.edu
(M. Drouin)

0007-6813/$ — see front matter # 2015 Kelley School of Business, I
http://dx.doi.org/10.1016/j.bushor.2015.11.005

be appreciated by your job.’’ Before her shift end-
ed, Heffran’s supervisor informed her that she had
been fired for violating the company’s zero-toler-
ance policy for work-related social media posts
(Galli, 2014).

Similarly, when journalist Kristopher Brooks re-
ceived a job offer from the Wilmington News Jour-
nal, he announced it on his personal Tumblr blog.
Soon after, Brooks was notified that his job offer had
been rescinded because he quoted his offer letter
and used the company’s logo when making his
announcement (Giang, 2012).

http://crossmark.crossref.org/dialog/?doi=10.1016/j.bushor.2015.11.005&domain=pdf

http://dx.doi.org/10.1016/j.bushor.2015.11.005

http://www.sciencedirect.com/science/journal/00076813

mailto:oconnok@ipfw.edu

mailto:schmidtg@ipfw.edu

mailto:drouinm@ipfw.edu

http://dx.doi.org/10.1016/j.bushor.2015.11.005

206 K.W. O’Connor et al.

In another example, Cheryl James had an emo-
tionally charged shift at Oakwood Hospital in Dear-
born, Michigan, when she was asked to treat an
alleged shooter of police. After work she went to
Facebook to blow off some steam. She posted that
she had come face-to-face with evil, and hoped the
cop killer would rot in hell. The post did not contain
any direct information about the suspect’s name,
medical condition, or even the treatment hospital.
Despite this, James was fired for her post because it
was considered a violation of HIPPA privacy protec-
tions for patients and contained unprofessional con-
tent (Katarsky, 2010).

These cases, along with many others, illustrate
situations in which employees were fired for un-
knowingly and unintentionally violating their com-
panies’ social media policies. Examples such as
these highlight some of the practical problems em-
ployers encounter when dealing with employees’
personal social media usage. Specifically, for the
growing number of companies that choose to imple-
ment social media policies, questions arise as to
whether policies are (1) properly drafted and/or (2)
effectively communicated to workers. Oftentimes,
the lack of effective social media policy communi-
cation and training is the root cause of termination
cases.

In this article we offer advice to organizations on
how best to communicate social media policies to
workers. We draw on an exploratory study we con-
ducted with young adult workers as to their knowl-
edge–—or more often, lack of knowledge–—about
their own organization’s social media policy and
its components. We discuss provisions organizations
should include when drafting social media policies
and the importance of enforcement so that workers
better understand and appreciate such policies. In
addition, we discuss how social media policies can
be communicated through training programs and
elements that can help these programs be effective.
Finally, we conclude by suggesting future needs for
research, theory, and guidance for organizations on
the use of social media policies.

2. Why is there a need for social media
policies in organizations?

Social media usage has grown exponentially in
recent years. Approximately 73% of Americans en-
gage in social networking, with sites like Facebook,
Twitter, Instagram, and LinkedIn dominating the
landscape (Duggan & Smith, 2013). Not surprisingly,
personal social media usage has consequently
become connected to the workplace (Schmidt &
O’Connor, 2015). Weidner, Wynne, and O’Brien

(2012) found that 60% of employees were connected
with a colleague through social media and 40% were
connected with their supervisor. Meanwhile, Hawley
(2014) found that approximately 50% of employees
posted pictures, videos, or messages involving their
employer, which equates to approximately 60 mil-
lion U.S. workers using social media to discuss em-
ployment issues.

These behaviors may not be problematic in and of
themselves, as organizations may permit or even
encourage social media connections and posts, de-
pending upon the industry. However, problems can
arise when unprofessional or negative social media
conduct is viewed by recruiters, colleagues, super-
visors, or the public–—such as in the case of Cheryl
James. In addition, positive content posted by em-
ployees–—like Ashley Heffran and Kristopher Brooks–—
may be problematic because the dissemination of
company information may be at issue. Cases such as
these have spurred the development and implemen-
tation of social media policies, principally so that
companies can protect their professional reputations
and proprietary information from exposure.

Proskauer Rose LLP recently found that 80% of the
companies it surveyed currently have a social media
policy in place (Rubenstein, 2014). However, there is
no known applied research and little guidance for
organizations regarding whether or not employees
of companies with a social media policy are aware of
its existence or understand its specifics. Previous
research by Schmidt and O’Connor (2015), Whitfield
(2013), and others has highlighted the many legal
issues and cases involving worker discipline, as well
as the impact various laws have had on workers who
engage in personal social media usage.

Building on calls for research in the areas of
employee perceptions and understanding of social
media policy language, we conducted an explorato-
ry study. Our findings suggest that employers need to
do a better job in helping employees understand and
apply their social media policies. We found that
simply having a social media policy is not enough
to influence or change worker social media behavior.
These results inform many of the practical sugges-
tions for organizations we put forth in this article.

3. The exploratory study

3.1. Nature of the study

The study participants were 166 employed under-
graduates (60 men, 106 women) from a Midwestern
United States university. They answered questions
on their social media connections to co-workers,
their behaviors related to talking about work

Table 1. Percentages of employed exploratory participants who engage in work-related social media behaviors

Percent
yes/agree

Mean SD

Any number of work friends on SM 86% 9.45 13.44

Talk about job on SM tends to be about co-workers 19% 1.60 0.79

Talk about job on SM tends to be about job itself 41% 2.06 0.87

Talk about job on SM tends to be about customers 22% 1.68 0.81

SM co-worker talk tends to be negative 9% 3.52 0.96

SM job itself talk tends to be negative 13% 3.39 0.97

SM customer talk tends to be negative 16% 3.28 1.01

Access SM during workday 77% 2.44 1.09

Permitted to access SM at work 36% — —

Use work-provided device to access SM 14% — —

Note: SM = Social Media. Talk about job scales = 1 (disagree) —3 (agree). SM work talk negative scales = 1 (very negative) —5 (totally
positive).

Helping workers understand and follow social media policies

207

through social media, and their knowledge of their
own company’s social media policy and its elements.
The results for the first two categories are presented
in Table 1, and the answers directly related to social
media policies are presented in Table 2.

3.2. Work-related social media behaviors

The majority of participants were connected on
social media with work friends, with 86% suggesting
they had at least one co-worker connection on social
media (see Table 1). Most participants used social
media at work (77%); however, only 36% reported
they have permission to do so, suggesting that some
workers are ignoring work-policy bans on such be-
haviors.

We also found that employees are making work-
related comments on social media. With regard to
the types of job-related talk they posted to social
media, more participants reported talking about
the job itself than co-workers or customers, and
comments were mainly positive, fitting with the
results of Hawley (2014). However, a fair number
of participants (9%—16%) indicated that their social
media comments about work tended to be negative,

Table 2. Employees’ understanding of their company’s s
has a social media policy

Know what violates company’s SM policy

Company gives practical advice for employee SM use

Company has ‘use common sense’ provision

Company requires protection of trade secrets

Company prohibits online discussion related to work

Note: n = 118.

especially about customers. Those who indicated
that their company had a social media policy posted
more negative content than those who said their
company did not have a policy or were unsure
whether their company had a policy.

3.3. Knowledge of work-related social
media policies

Only 31% of participants indicated their company
had a social media policy; 34% indicated that their
company did not have a social media policy; and 35%
reported that they did not know if their company
had a social media policy. As Table 2 shows, for those
who knew their company had a social media policy,
only half knew what violated the policy. When asked
about specific policy details, many participants in-
dicated that their company either did not have, or
the participant did not know about, common social
media use policy provisions.

In terms of demographic and social media policy
knowledge, the only significant difference was ten-
ure with the company: those who indicated their
company had a social media policy had been with
their company longer than those in the other groups,

ocial media policy for those who knew their company

Yes No I don’t know

50% 50% —

42% 18% 41%

54% 10% 36%

42% 11% 47%

30% 23% 48%

208 K.W. O’Connor et al.

and significantly longer than those who indicated
they did not know if their company had a social
media policy. However, it is notable that for those
who indicated they did not know if their company
had a policy, their mean term of employment was
nearly a year (10.98 months). These findings suggest
that social media policies were not introduced dur-
ing initial training, and that they are perhaps com-
municated in a less formal way through cumulative
experiences with the company. Interestingly, even
those who knew their company had a policy did not
know many details about the policy, which suggests
that more explicit social media policy training is
necessary.

4. Practical considerations for
employers

What we know from our data–—as well as from prior
studies of worker online behavior–—is that employ-
ees are regularly talking about work, about custom-
ers, and to co-workers on social media sites (Hawley,
2014). As discussed, a noteworthy take-away from
our study is that 86% of participants were connected
with co-worker colleagues. This is higher than previ-
ous examinations of co-worker connections, which
found it to be in the 60% range (Duggan & Smith, 2013;
Weidner, Wynne, & O’Brien, 2012). This could be due
in part to the younger age of our sample and more
widespread use of social media among young adults.

With regard to the content of such social media
posts, organizations can be heartened that our study
indicates most content across all three types was
not negative. However, the fact that posts about
customers was the most endorsed category for neg-
ative content is obviously troubling. Negative con-
tent on social media may hurt the reputation of an
organization in the eyes of the public and potential
customers. Important legal issues may arise in
these circumstances, and employers may find that
having a social media policy in place helps avoid
litigation or aids their defense in court (Schmidt &
O’Connor, 2015).

Our study points to two major areas employers
need to consider regarding worker social media
behaviors and social media policies. First, social
media policies need to be well drafted and
clear–—and consistently enforced–—so workers un-
derstand the policy and the organization can protect
itself legally. Second, organizations need to clearly
communicate their social media policies to workers.
This can be accomplished by implementing various
communication mediums and training methods,
which should include multiple exposures to social
media policy language and meaning.

4.1. Social media policies need to be well
drafted, clear, and consistently enforced

As shown by our data, many workers do not know the
elements of their company’s social media policy.
This may be in part because the existing policy is
obtuse or lacking specifics of how workers should
behave. To make policies clear, organizations need
to carefully consider how policy provisions can be
written so they are well defined and understandable
to workers.

First and foremost, when creating such policies,
private sector organizations need to make sure they
are not infringing on the legally protected rights of
their employees. As outlined in Section 7 of the
National Labor Relations Act (NLRA), employers
cannot restrict employees’ right to communicate
with co-workers about working terms and condi-
tions. Depending upon what type of work-related
matters the employees discuss via social media,
their communications may be considered protected
concerted activity and within their right to debate
(Schmidt & O’Connor, 2015). Many companies
choose to include non-disparagement clauses,
which can range from requiring employees not to
say bad things about the company to not identifying
their employment with the company; in extreme
cases, this may go so far as completely banning
employees from posting anything about the compa-
ny (Gordon & Argento, 2014). However, it is impor-
tant to note that private-sector companies that
place heavy restrictions and all-out bans on their
employees run the risk of violating Section 7 of the
NLRA (Schmidt & O’Connor, 2015). Consulting an
attorney to help make a determination of whether
an organization’s policy language could violate
federal law would likely be good practice.

Furthermore, the National Labor Relations Board
(NLRB) suggests that the language of social media
policies should give employees clear examples
of permitted and banned behaviors, as well
as how the organization’s policy will be applied
(Purcell, 2012; Schmidt & O’Connor, 2015). Notably,
when examining various policies–—such as those on
the website http://socialmediagovernance.com/
policies/, a database that includes hundreds of
examples of social media policies from many major
U.S. and international employers–—the policy lan-
guage can vary tremendously among industries and
between organizations (Boudreaux, 2009). Howev-
er, common social media policy elements include
protection of company trade secrets and potential
violations of anti-discrimination or anti-harassment
laws (Breakenridge, 2012; Schmidt & O’Connor,
2015). HR professionals may want to use the social
media governance website to find examples of

http://socialmediagovernance.com/policies/

1 https://www.youtube.com/watch?v=QKW9xkX0uIE

Helping workers understand and follow social media policies 209

language they desire in their own policies, but they
will need to consider their own work context when
drafting a policy.

Equally important is the enforcement of social
media policies that exist in an organization. Even if
workers understand the existing policy language, if
they do not see it consistently enforced, they may
assume it can effectively be ignored. Inconsistent
enforcement by the organization can lead to dis-
crimination lawsuits (Dexter, 2008). Therefore, pol-
icy language should clearly define the consequences
of policy violations. This could include language on
elements such as progressive discipline (i.e., more
violations over time leads to more stringent punish-
ment) or the types of violations that are considered
severe enough for termination on the first offense.

Although consistent and systematic enforcement
is crucial for a successful policy, there are indica-
tions that organizations are failing in this regard. In
many extant termination cases (such as the K-12
teacher cases discussed in O’Connor & Schmidt,
2015), the offending worker’s social media content
was not discovered via routine organizational pro-
cesses but rather by particular individuals reporting
the worker to the organization. This is concerning,
as negative social media content could potentially
be posted but go unreported to an organization, or
be discovered much later, after damage has been
done to the organization’s image.

Due to the importance of enforcement, we rec-
ommend that organizations create policies and pro-
cedures for the collection of data and enforcement
of social media policies. Organizations could set
procedures consisting of real-time, daily, or weekly
data collections. Organizations should consider hav-
ing dedicated staff for or staff time devoted toward
monitoring and discovering social media content, as
well as staff for viewing flagged content and deter-
mining if it violates the social media policy. Tech-
nology could help with this process by creating an
automatic search utilizing programs or applications;
in fact, these applications already exist. The Orange
County School District in Orlando, Florida, uses a
software program offered by Snaptrends for the
routine monitoring of social media posts by both
students and staff (Postal, 2015). Another such
software, Socialite by Actiance, monitors social
media for key words, phrases, and patterns. It
can give organizational compliance teams real-time
updates when concerns are detected. These tools
could help organizations in the detection and en-
forcement of policy provisions.

In terms of enforcement and the general nature
of policies, it is nonetheless important to consider
how workers and employees may respond. Policies
may be legally defensible but result in situations

that the public deems unjust (Drouin, O’Connor,
Schmidt, & Miller, 2015), or that alienate workers
who feel their privacy is being violated. When craft-
ing policies and punishments, organizations may
want to consider the values and perceptions of their
own workforce and the customer base. Organiza-
tions may also want to create mechanisms by which
workers can appeal organizational decisions and
punishments, so as to be heard and explain the
intent behind the social media post in question.

4.2. Organizations need to clearly
communicate social media policies and
provide training to workers

The results of our exploratory study and the recom-
mendations of those with expertise in this area
(Breakenridge, 2012; Schmidt & O’Connor, 2015)
suggest that organizations need to do significantly
more to inform workers about social media policies
if they want the policies to have an appropriate
impact. To accomplish this, there are various ave-
nues organizations might consider. For example,
written forms of policy communication may include
a social media section in the employee handbook,
signed policy acknowledgments by employees, or
social media policy memorandums to employees.
Breakenridge (2012) suggests that organizations
could make short summary documents for easy
worker reference, especially in the case of more
expansive social media policies. However, the most
basic way to better communicate such information
might be to train workers directly on policies, as
suggested by both Schmidt and O’Connor (2015) and
Breakenridge (2012). Well-designed training pro-
grams may help workers not only understand the
words of the policy, but also how those words apply
in everyday organizational life.

The training could proceed in a number of differ-
ent ways; the best method may vary depending on
the actual elements of the organizational policy.
One method of social media training entails online
videos that workers are required to view. Idaho’s
St. Luke’s Health System provides its employees
with a video defining social media, discussing types
of issues that can arise, and listing the criteria
people should consider when posting.1 Video links
can be emailed to employees, or supervisors can run
meetings where such videos are shown. Schmidt and
O’Connor (2015) offer other examples of video-
based training.

In addition, organizations might want to imple-
ment face-to-face training, which allows participants

210 K.W. O’Connor et al.

to ask questions and receive answers; or, they could
offer a combined set of methods. A number of con-
sulting organizations develop and run programs on
social media policy training (e.g., Xcelus). It would
likely benefit employees to have exposure to more
than one method of social media policy training
(Miller-Merrell, 2011).

Organizations need to consider when employees
should get training. It makes sense to build at least
one social media policy training session into an
orientation program so that new employees gain
an understanding of such policies upon entry. As
our study revealed, lower-tenure employees are
particularly in need. If the organization has a zero
tolerance type of social media policy, or has a policy
against using the company name on social media–—as
exemplified by the Ashley Heffran, Kristopher
Brooks, and Cheryl James examples–—a good prac-
tice would be to notify a new hire in the offer letter.

It is important to make sure that existing employ-
ees and managers also receive training. Though
longer-tenured employees may know the company
has a social media policy in place, their reported
negative online postings in our study suggest either a
lack of understanding or mere complacency. Man-
agers should be comprehensively trained, as they
may be tasked with handling employee discipline
when social media—related issues arise.

It should be stressed that one training session for
the duration of a worker’s employment with the
organization is certainly not enough. Information
can become outdated and social media policies will
change significantly as new technology creates dif-
ferent concerns and potential issues. The social
media sites that are used most frequently by work-
ers will change over time, and any training needs to
keep up-to-date with such changes; organizations
will want to have refresher courses to help workers
understand current sites and social media policy
language. Yearly social media refresher courses
could remind workers of policy elements that have
remained the same, yet concurrently introduce
them to any changes or updates that will be made
and subsequently enforced.

5. Conclusion

In light of our arguments, the extant relevant liter-
ature, and the results of our exploratory study, we
suggest–—for all organizations–—the development of
comprehensive policies regarding social media use
and online conduct. Newer workers may or may not
be aware of their employer’s social media policy;
longer-tenured employees may not understand the
policy; and senior employees may have started

before such policies were adopted. We therefore
suggest ample training on social media policies
across all levels of the organization. Moreover,
future research is needed in this area, specifically
in regard to the effectiveness of various training
methods. This research could help organizations
determine how social media policies are best com-
municated to and understood by employees.

In many of the legal cases surrounding workers
terminated for social media posts, the terminated
worker seemingly had little awareness of the po-
tential consequences his or her behavior might
provoke (O’Connor & Schmidt, 2015; Schmidt &
O’Connor, 2015). This lack of awareness could, in
part, be due to policies that lack clear descriptions
of how the policies are enforced and how workers
who violate them will be punished. Social media
policies can help workers understand their legal
rights, what content is and is not appropriate, and
what content may have negative consequences.
Well-drafted policies that are crafted in line with
existing legal standards may also help an organiza-
tion avoid or defend itself from litigation. Providing
examples of prohibited conduct–—as recommended
by the NLRB–—will help employees to better under-
stand the policy and possibly reduce the likelihood
that they will later sue the organization (Purcell,
2012; Schmidt & O’Connor, 2015). If litigation
does arise, a clearly articulated policy can provide
direction for the court when deciding the matter
at hand.

In conclusion, we know for certain from our
exploratory study that employees are posting com-
ments about their co-workers, jobs, and customers.
Some of these comments, especially those about
customers, are negative. Most distressingly, this
negative talk only increases with tenure. To avoid
potential legal issues, employers should educate
their employees about company social media poli-
cies early and often, with training a potentially
fruitful way of doing so. Work life and online life
are intertwined, and organizations need to create
and communicate policies that help workers under-
stand what behaviors are appropriate.

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NEW CONCERNS IN ELECTRONIC EMPLOYEE
MONITORING: HAVE YOU CHECKED YOUR

POLICIES LATELY?

Janet Ford, Western Carolina University
Lorrie Willey, Western Carolina University

Barbara Jo White, Western Carolina University
Theresa Domagalski, Western Carolina University

ABSTRACT

Employee monitoring is a significant component of employers’ efforts to maintain
employee productivity and, to a great extent, the means by which to avoid legal liabilities and
business injuries which stem from employee misconduct. From sexual harassment to
commercial disparagement, employers must guard against employee injury to third parties,
inside or outside of the workplace. Moreover, disgruntled employees can expose valuable
business trade secrets or engage in corporate espionage or sabotage.
Developing technologies allow for extensive monitoring with video, phones, internet,
social media and other devices with which employee behaviors can be tracked. If an employer
goes too far, or not far enough, to identify and prevent employee misconduct, the legal
consequences that could befall the employer are costly to both revenue and reputation. This
balancing act, and the dilemma it creates, demonstrates the need for businesses to develop
effective electronic monitoring policies. However, policies, once developed, need to be
periodically reviewed to ensure compliance with evolving legal changes. For example, recent
legal decisions from the National Labor Relations Board and emerging trends in state legislation
regarding employee monitoring necessitate review of employee monitoring policies.

INTRODUCTION

Employers have long had compelling reasons to monitor employees. For example,
management at Los Angeles California City Hall discovered that employees were streaming the
2012 Summer Olympics over the corporate network while at work. Management’s response:
“Stop watching the Olympics at work!” (Winton, 2012). Events like the Olympics or the annual
March Madness basketball tournament impact corporate networks during very specific times, but
imagine an employer monitoring its network and discovering that every day employees are
watching over 50,000 YouTube videos, streaming over 4,000 hours of music over the internet, or
streaming movies from Netflix. This discovery, in fact, prompted Proctor & Gamble to shut
down access to movies from Netflix and music from Pandora for its 129,000 employees
(Schwartz, 2012).

Ensuring employee productivity is a major consideration to support the monitoring
processes. But employers have also long been aware of the risk of legal liability or loss to which
their organizations may be exposed as a result of inappropriate employee activities online (Papa
& Bass, 2004). Lawsuits based on online harassment are typically cited as a concern that justifies
employee monitoring, but these are by no means the only legal claims that can arise from

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

employee activity online. In recent years, employee activity on social media outlets, along with
employer responses to such activity, have increasingly exposed organizations to liability for
unlawful discrimination (Gaskell v. University of Kentucky, 2010), violation of labor laws
(Hispanics United of Buffalo, Inc., 2012), and even violation of securities laws (Bondi &
Lofchie, 2011). In addition to legal liability for employee misconduct, employers are concerned
about threats to their organization’s intellectual property as vital data and information are
increasingly stored in digital format that is easy for employees to access and distribute outside of
the organization’s protocols (Willey, Ford, White & Clapper, 2011). To support and justify
employee monitoring, employers have adopted policies that attempt to define the limits of
permissible employee online activity and identify forms of impermissible online activity that
might expose the organization to legal liability or loss. As with all best business practices, it is
not enough to simply develop an employee monitoring policy. Successful organizations regularly
review and update their policies and review the enforcement of those policies to ensure that they
are addressing current concerns in a way that complies with state and federal laws (Rozwell,
2012).

The monitoring of employees’ emails, internet usage, telephone communications and
social media gives rise to confusing legal responses. While some law supports the necessity of
monitoring, other law exists to limit the electronic monitoring of employees to protect employee
privacy, leaving employers between a rock and hard place. On top of these concerns, recent
rulings by the National Labor Relations Board confound the problem for organizations by strictly
interpreting monitoring policies that could impact employees’ rights under the National Labor
Relations Act. Additionally, numerous states have either enacted or are considering legislation
that would limit the use of social media as a monitoring tool. It’s time to take out those
monitoring policies, dust them off, and be sure the organization’s policies comply with law.

AN HISTORICAL LOOK AT ELECTRONIC MONITORING AND A LOOK AT
RECENT TRENDS

Business organizations are able to use hardware and software to electronically monitor a
wide variety of employee behaviors both in and out of the workplace. Attendance and facility use
can be monitored using video surveillance and through employee badges where entry and time
spent in various access areas is logged. In addition, new applications for physical access cards
provide authentication and access to digital systems which may ultimately lead to the
convergence of Information Technology (IT) security and physical security (Walls, 2012a). Not
only can employee access cards provide a digital record of their physical whereabouts, but also
global positioning system (GPS) chips and radio frequency identification (RFID) chips have
been used to monitor the location of assets, such as laptops, phones, and vehicles, used by
employees (Ciocchetti, 2011). Beyond monitoring the physical location of assets or employees,
organizations also monitor employee productivity (Mujtaba, 2003) including the use of
communication equipment and computer equipment that their employees use daily: activity on
the desktop personal computers, keystroke logs, email communications, text-messages; use of
social network sites, use of the internet and search engines; and telephone use, including
voicemail monitoring (Ciocchetti, 2011).

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

A Decade of Electronic Monitoring: 1997 – 2007

Monitoring techniques differ in both their usage in the workplace and in their usage over
time. Surveys of member and client companies of the American Management Association
(AMA) specifically examined workplace monitoring over the ten-year period from 1997 to 2007,
though not all technologies were measured for all years (AMA, 2000; AMA, 2001; AMA, 2008;
Anonymous, 2005). For example, monitoring using technologies such as social network sites and
blogs were not measured prior to 2007. The surveys revealed that, for the period from 1997-
2005, some monitoring techniques, such as the recording and review of telephone conversations
or voicemail messages and the review and video recording of employees to assess job
performance were used by less than 21% of the businesses surveyed (AMA, 2000; AMA, 2001;
Anonymous, 2005). Video recordings of employee job performance grew at the very low rate of
.2% per year (AMA, 2000; AMA, 2005). Although voicemail storage and review grew at a fairly
high rate of nearly 14% per year during the period, its use is not widespread, at l5% of the
surveyed companies (AMA, 2005).

Other employee monitoring techniques showed more widespread usage with several of
those monitoring techniques showing higher rates of growth over time (see Figure 1).

Figure 1: Monitoring methods and usage percentages over time

For example, from 1997-2007, monitoring email messages grew at the highest annual rate
(17% per year) while storing and reviewing computer files and computer use show very high
growth rates of 12% and 11% per year respectively. Telephone use monitoring was fairly
sizeable at 45% while monitoring internet connections was quite common at

%. Both of those
techniques showed low growth rates of 3% per year with telephone use being measured for the
ten-year period from 1997-2007, and monitoring internet connections as measured for the eight-
year period from 2000-2007 (AMA, 2000; AMA, 2001; AMA, 2008; Anonymous, 2005).
Monitoring employees on social networking sites and on the blogosphere were first measured in

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

2007 and show rates of usage of 10% and 12% respectively (AMA 2008). New technologies and
applications will continue to affect electronic monitoring.

Recent Trends in Electronic Monitoring

A recent trend is the use of social media by employees or potential employees. Gartner
Inc., an IT research firm, conducted a survey that showed widespread adoption of social
networking sites across a variety of U.S. industries including the media industry (77%),
education and telecom industries (

%), and the retail industry (52%) among others (Rozwell,
2012). Organizations monitor social media use of both employees and potential employees
(Willey, White, Domagalski, & Ford, 2012). Surveys of employers over the last seven years
show that in 2013, 39% of employers screened potential employees using social network sites
(Grasz, 2013) up from 12% (Grasz, 2006), which represents a growth rate of 225%. Information
on social network sites can both help a potential employee get hired as well as hinder a potential
employee from getting hired. Current employees are also monitored as to their social media use,
and Gartner recommends that organizations develop social media policies, rules and training for
organization employees who might be forbidden from, encouraged to use or even asked to use
and track social media sites as part of their job assignments (Mann, 2012). The social network
sites that organizations are monitoring fall into four major categories: public sites such as
Facebook, Twitter and LinkedIn; public sites that are not based on advertising, like MyCube;
semiprivate social network sites like Yammer; and private social networks such as Mumsnet
(Casper, 2011). Software such as SocialLogix is able to detect multiple social media sites
employees use and uncover their user profiles. While it is not uncommon to monitor social media
for employee postings, particularly in the major sites such as Facebook and LinkedIn and
Twitter, recent technology capabilities make it possible to monitor other social networks even if
the employee posts in multiple languages. To prevent posts that are inappropriate, organizations
must first monitor and intercept them using a variety of tools including network infrastructure
tools, services that integrate with social media platforms and social media management software
(Walls, 2012b).

A REVIEW OF THE LEGAL PRESSURES SUPPORTING EMPLOYEE MONITORING

To a significant and increasing extent, organizations monitor employee activity to reduce
potential exposure to legal liability to third parties and also to minimize the risk of harm resulting
from employee misconduct. Not only must an organization take reasonable measures to protect
third parties from the wrongful conduct of employees, it must also take measures to protect itself
from employee acts that might undermine the organization’s business interests. Although these
concerns over employee misconduct are not new, technological developments have provided
employees with increased opportunities to divert themselves from their work obligations and
engage in conduct that can be detrimental to the organization. Technology has also provided
expanded tools with which organizations may monitor employee activity. The legal system,
however, generally lags behind the needs of the workplace in terms of determining rights and
responsibilities in the face of new technology. Courts often attempt to graft new applications of
technology onto traditional legal doctrine and precedents whenever sufficient parallels exist
(Ciocchetti, 2011). Occasionally, however, courts must fashion new remedies to address new
harms, or await legislative action, and the results are seldom uniform.

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

The availability of expanded technological tools raises multiple issues, such as concerns
over employee privacy, discussed below, on the one hand and the reasonableness of monitoring
efforts on the other hand. If reasonable means of monitoring employee activity are available,
employers may be found negligent if they fail to use those means. (Papa & Bass, 2004)
Similarly, where an organization does not take advantage of available technology to protect its
business interests, it may be left with no remedy in the face of employee (or ex-employee) theft
of intellectual property or other harmful acts directed at the business (Willey, Ford, White &
Clapper, 2011).

Injury to Third Parties

U.S. law often places liability on employers when employee conduct results in injury to
third parties, either to those outside the organization or to other employees within the
organization. Because employees are hired to act on the behalf of their employer and advance the
employer’s interest, they are considered agents of the employer. Under agency principles, the
organization, as the principal, has the right to control the agent-employee (Restatement Agency,
§ 1.01). This agency relationship therefore exposes the organization to vicarious liability, under
the theory of respondeat superior, for the wrongful acts of its employees committed in the scope
of employment (Restatement Agency, § 2.04). Where the wrongful acts of an employee are
outside the scope of employment, the organization may still be liable for harm to a third party
under tort theory if the employee is on the premises of the employer or using the property of the
employer or if the employer knew or had reason to know of the employee’s propensity to engage
in wrongful acts (Restatement Torts, § 317).
Under the theory of respondeat superior, employees are generally considered to be acting
within the scope of employment if they engage in work assigned by the employer or are subject
to the employer’s control (Restatement Agency, §7.07). Under respondeat superior, employees
are engaged in activities they were hired to do to advance the organization’s interest, but perform
those activities in a manner that inflicts harm on a third party (Papa & Bass, 2004).

If the employee’s conduct is not directed by the employer and is not intended to benefit
the organization, then the employee is acting outside of the scope of employment (Restatement
Agency, § 7.07). This exposes an organization to liability for employee misconduct under the
tort theory of negligent retention. Organizations have a duty to prevent intentional harm or an
unreasonable risk of bodily harm to third parties resulting from an employee’s misconduct, either
on the employer’s premises or while using the equipment, tools, or other resources of the
employer (Restatement Torts, § 317). A negligent retention theory is also available under agency
law. Negligent retention under agency theory holds the employer responsible for the employee’s
conduct that causes harm to a third party if the employer is negligent “in selecting, training,
retaining, supervising, or otherwise controlling the agent” (Restatement Agency, § 7.05). Unlike
respondeat superior, it is not necessary for the employee to be acting in the scope of
employment for liability to arise. Thus, in a situation where an employee uses workplace email
to threaten or harass another, the injured third party may not be able to pursue the employer
under a respondeat superior theory but might be able to assert a claim against the employer
under a negligent retention theory. To avoid liability under a negligent retention theory,
organizations often seek to prevent employee misconduct by monitoring their activities (Papa &
Bass, 2004).

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

The use of workplace email systems for harassment is a phenomenon with which many
organizations and courts are familiar. E-harassment often involves using email to send
inappropriate messages to fellow employees or other third parties, distribute pornographic or
obscene material, or otherwise humiliate or intimidate others. Failure to prevent such abusive e-
mail practices has led to employer liability, which in turn has given employers a strong incentive
to monitor employees’ use of the company email (Papa & Bass, 2004).

Organizations may also incur liability when employee misconduct results in economic
harm to third parties under a common law tort known as commercial disparagement (sometimes
also referred to as trade libel or injurious falsehood). When a party makes a false statement that
is harmful to the economic interests of another, that party may be liable for the economic harm if
(1) he intended for the falsehood to cause harm or recognized or should have recognized the
potential of the falsehood to cause harm, and (2) he knew that the statement was false or acted
“in reckless disregard of its truth or falsity” (Restatement Torts, §

3A).

In addition to the common law tort claim for commercial disparagement, an injured party
may also assert a claim for violation of the federal Lanham Act. Section 1125(a) of the Lanham
Act creates civil liability for the use of a “false or misleading description of fact, or false or
misleading representation of fact,” including commercial advertising that “misrepresents the
nature, characteristics, qualities, or geographic origin of his or her or another person’s goods,
services, or commercial activities” (Lanham Act, §1125(a)). Under this theory of liability, an
employer may be liable for the actions of employees who carelessly or deliberately misrepresent
either the employer’s products or services or a competitor’s products or services.

In a case involving common law and Lanham Act claims, a human resources software
provider found itself fending off a lawsuit when an anonymous individual sent a forty-three page
PowerPoint presentation denigrating a competitor’s products and services to current and
prospective customers of that competitor. The question before the court was whether a
preliminary injunction should be issued forbidding the continued use of the presentation. In
granting the plaintiff’s request for a preliminary injunction, a federal District Court in California
found that the competitor was likely to succeed on the merits of its multiple claims. Although the
defendant acknowledged that the presentation originated internally, it denied authorizing its
widespread anonymous release. Nevertheless, the defendant was exposed to liability for this act
under a variety of legal theories, including trade libel and violation of the Lanham Act
(SuccessFactors, Inc. v. Softscape, Inc., 2008). Once the court entered an injunction, the
defendant organization would face contempt sanctions if an employee disregarded the terms of
the injunction.

Business Injury from Employee Misconduct

Employers must also be on guard for employee misconduct that could result in injury to
the organization. Most organizations are well aware of the business risks presented by employees
who do not have the employer’s interests at heart. By virtue of their access to critical business
information and resources, employees have the potential to wreak havoc by misappropriating
such information or resources, by publicizing confidential information, or by leaving the
employment relationship and taking with them valuable information and resources. Whether
such employees are motivated by greed, spite, loyalty to another, or some other impetus, the
damage done to an employer’s business interests can be devastating.

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

Intellectual property may be one of the most valuable assets in the portfolio of an
organization. Federal copyright and patent laws protect the two forms of intellectual property
with which most businesspeople are familiar, and provide remedies where the rights of a
copyright or patent holder are infringed (Ford, White, & Willey, 2010). However, copyrights and
patents are by no means the exclusive forms of intellectual property or confidential information
that need protecting. Trade secrets consist of information, in a wide variety of forms, that carries
economic value as a result of not being generally known and which an organization seeks to
protect from becoming known (Uniform Trade Secrets Act, §1(4)). Technology has played and
will continue to play a role in the development and protection of trade secrets, but it also presents
a threat to those secrets. Trade secret information is increasingly stored in digital form, which
allows it to be easily accessed and shared. This becomes a disadvantage when the trade secret is
accessed and then shared with someone outside of the organization. The portability of electronic
devices and the popularity of cloud computing make it easy for an employee to copy trade secret
information and forward or store it in locations beyond the organization’s control. Even well-
meaning employees may inadvertently leave trade secret information unguarded on a laptop,
smartphone, or other mobile device that may be accessed by third parties. Disgruntled employees
can have an even more destructive impact by copying or forwarding trade secret information to
competitors or future employers before leaving their current employment. To combat the
potential impact of employees’ disclosure of trade secrets, monitoring the access to, use of,
modifications or other manipulations of trade secret information is but one of many protective
measures that employers take (Willey, et al., 2011).

Civil remedies for violations of the Uniform Trade Secrets Act, which has been adopted
in all but a few states, include injunctions against actual or threatened misappropriation,
monetary damages reflecting the plaintiff’s actual loss or the defendant’s unjust enrichment, and
in cases where the misappropriation of a trade secret is willful and malicious, the plaintiff may
recover double the amount of calculated damages (Uniform Trade Secrets Act §§ 2-3). However,
to prevail on a civil misappropriation of trade secrets claim, the organization must establish that
it took reasonable measures to protect the secrecy of the proprietary information that was taken.
Courts often balance the economic value of the trade secret against the costs of protecting that
secret to determine if the steps taken were reasonable. Use of automated monitoring programs to
log employee access to proprietary information may be viewed as a cost effective protective
measure (Willey, et al., 2011).

The criminal side of corporate espionage is best reflected in two federal laws that seek to
protect trade secrets by criminalizing their theft. When proprietary business information falls into
the hands of foreign interests, national security may be implicated. Accordingly, Congress has
addressed both domestic and foreign corporate espionage in a pair of laws that seek to protect
trade secrets. In what is frequently referred to as the Economic Espionage Act, federal law
forbids the misappropriation of trade secrets through any number of means, high-tech or low-
tech, if those trade secrets could benefit a foreign entity (Economic Espionage Act § 1831). The
Economic Espionage Act also contains a provision that addresses theft of trade secrets without
regard to whether there is a foreign entity involved (Economic Espionage Act § 1832). These
provisions impose criminal sanctions on anyone who violate their terms, including business
entities. The Federal Bureau of Investigation (FBI) specifically recommends that businesses
protect themselves from the theft of trade secrets by “monitor[ing] computer networks for
suspicious activities.” (FBI, para. 3, n.d.).

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

In addition to trade secrets, organizations routinely compile and store other types of
confidential information, such as personnel records, financial data, litigation materials, and other
sensitive data. A patchwork of federal and state laws imposes a duty on businesses in a wide
variety of industries to maintain confidentiality of certain data, and imposes sanctions on
businesses who fail to prevent improper disclosures. Anyone who has sought medical care in the
U.S. in recent months has probably received a Health Insurance Portability and Accountability
Act (“HIPAA”) statement addressing the confidentiality of patient information (42 U.S.C.
§1320d-6, (2012)). Educational institutions that receive federal funds must guard the educational
records of students under the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g
(2012)). Attorneys are obligated to maintain the confidentiality of their client’s information
(Model Rules 1.6). Under the Graham-Leach-Bliley Act, financial institutions must protect the
personal information of customers (15 U.S.C. §§

01-6803 (2012)). These are but a few
examples of privacy laws to which organizations are subject. Given the widespread importance
of confidentiality across numerous fields, employers must implement measures to prevent
employees from disclosing sensitive information (Matwyshyn, 2005).

LEGAL RESTRICTIONS ON ELECTRONIC EMPLOYEE MONITORING

In spite of the clear need for employee monitoring to prevent harm to third parties or to
the organization itself, monitoring policies and practices have faced numerous legal challenges
from employees and government agencies responsible for regulating the workplace. These
challenges often are based on common law privacy rights, federal privacy laws, labor relations
statutes, and state laws limiting employer access to employees’ personal online accounts.

Privacy Rights of Employees

While employers face a wide range of legal liability for not monitoring employees, some
scholars argue that “…the American legal system has failed to: (1) keep up with today’s
powerful monitoring technology and (2) provide the necessary privacy protection for employees”
(Ciocchetti, 2011, p. 289). Attempts to address this failure and to protect both employer and
employee rights have been inconsistent. To the extent that employee privacy concerns are
implicated in an organization’s monitoring policy, the outcome often hinges on whether an
employee has a reasonable expectation of privacy as to the activity being monitored. This
inquiry, in turn, requires a distinction between a public employee and a private employee.
Private employees will find little in the United States Constitution to define or protect workplace
privacy. While the United States Constitution does not specifically address a right of privacy, the
courts have determined that public employees do have some protection from unreasonable
searches and seizures from governmental employers (City of Ontario v. Quon, 2010). The Fourth
Amendment puts some limits on monitoring government workers but only when the employee
has a reasonable expectation of privacy. However, the Fourth Amendment protections do not
translate to the private sector (Levinson, 2012). Even when a reasonable expectation of privacy
exists for a public employee, the employer’s actions will be deemed lawful if the reasons for the
monitoring are deemed legitimate (City of Ontario v. Quon, 2010).

State law addresses privacy disputes with a variety of privacy principles that are
generally referred to as “invasion of privacy” torts. All privacy torts require the party claiming
injury to have a reasonable expectation of privacy violated by the conduct of another. The

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standard is not subjective; the expectation of privacy must be one that is considered by society to
be reasonable (Katz v. United States, 19

). While several torts can be categorized under the
umbrella of “invasion of privacy,” two widely recognized privacy torts are intrusion upon
seclusion and publicity of private facts. Both of these torts require the plaintiff to establish that
the privacy violation be extreme and unreasonable. Intrusion upon seclusion occurs when a
person “. . . intentionally intrudes, physically or otherwise, upon the solitude or seclusion of
another or his private affairs or concerns … if the intrusion would be highly offensive to a
reasonable person” (Restatement Torts §

2B). The tort of publicity of private facts involves “.
. . giving publicity to a matter concerning the private life of another . . . if the matter publicized is
of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate
concern to the public” (Restatement Torts § 652E). The expectation of privacy, however, is
greatly reduced in employment settings. This is particularly true where employers provide
resources such as computers, email, phones, or internet access to facilitate employee productivity
and where employers have notified employees that activity on company-provided resources will
be monitored. Questions of unreasonableness, private affairs or offensiveness are resolved by
courts on a case-by-case basis, but the workplace is not often viewed by courts as an area where
a reasonable expectation of privacy is likely to exist.

Electronic Communications Privacy Act of 1986

The federal Electronic Communications Privacy Act of 1986 (ECPA) consists of two
titles on which lawsuits regarding employee monitoring have been based, the Wiretap Act and
the Stored Communications Act (SCA) (Electronic Communications Privacy Act). Since privacy
is the intent of the law, certain applications of the ECPA support privacy in the workplace,
especially for personal email accounts and social media postings. The problem is that the law is
complex and courts have different views on how the law should be interpreted. The ECPA
provides a civil remedy to the individual against a person or entity who intentionally intercepts
an electronic communication or who obtains unauthorized access to stored electronic
communications. While the statute appears to be on point when discussing workplace privacy,
the interpretation of the law and its exceptions are unsettled as applied to electronic monitoring
in the workplace.

The Wiretap Act prohibits interception, use and disclosure of contents of electronic
communications and an interception is defined as “the aural or other acquisition of the contents
of any wire, electronic, or oral communication through the use of any electronic, mechanical or
other device” while the communication is in transit (Electronic Communications Privacy Act, §
2510 (4)). The “interception in transit” requirement is often discussed in monitoring cases
(Global Policy Partners v. Yessin, 2010).

The second title of the ECPA, the Stored Communications Act defines “electronic
storage” as “(A) any temporary, intermediate storage of a wire or electronic communication
incidental to the electronic transmission thereof; and (B) any storage of such communication by
an electronic communication service for purposes of backup protection of such communication”
(Electronic Communications Privacy Act, § 2510(17)). Overall, court opinions generally hold
that when employer’s access and monitor stored emails on work computers, employees have no
reasonable expectation of privacy even when using an employer’s computer for personal reasons.
Use of workplace computers “…carries with it social norms that effectively diminish the

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

employee’s reasonable expectation of privacy with regard to his use of his employer’s computers”
(Sporer v. UAL Corp., 2009 WL 27

329 at *5).

ECPA is not applicable to systems for electronic communications that are “configured so
that such electronic communication is readily accessible to the general public” (Electronic
Communications Privacy Act, § 2511(2)(g)(i)). Therefore, organizations are free to monitor and
intercept communications employees make when those communications are available to the
public, regardless of whether the communication is work related or not (Abril, 2012). Some
courts have interpreted “readily accessible to the general public” as a broad exception that
provides no protection for employee privacy. Therefore, organizations that provide electronic
communications service or Internet access to employees for work-related purposes may access
all communications (Abril, 2012).

Consent, authorization and the ordinary course of business are exceptions under the
ECPA that are often raised by employers in ECPA litigation. In the employment area, consent is
the exception to the Wiretap Act that most limits employees’ rights regarding organizational
monitoring and interception of electronic communications. Courts do look at the facts of a case
to determine whether the employees knew they were being monitored and whether they
voluntarily consented to the monitoring (Levinson, 2011). In making these determinations, courts
often refer to organizational policies. Consent cases most often involve telephone rather than
email interception but the analogy is similar. Employees can authorize employers to access
stored emails under the SCA through workplace policies but that authorization generally does
not extend to personal and password protected email accounts stored on outside servers (Pure
Boot Camp v. Warrior Fitness Boot Camp, 2008). Employer monitoring of employee electronic
communications under the Wiretap Act is permitted when such monitoring is carried out in the
ordinary course of business, another exception to the ECPA. Ordinary course of business
consists of “a routine activity of the business in furtherance of a legitimate business interest”
(Arias v. Mutual Central Alarm Services, Inc., 1998, p. 416).

Employers routinely request job candidates’ usernames and passwords to access social
networking sites when considering candidates for employment (Willey, et al., 2012), but
employer monitoring of social networking sites sometimes continues even after the initial hire.
Accessing and monitoring social networking sites without employee authorization raises legal
concerns under the ECPA. What steps the account user takes to maintain privacy on a social
networking site and what posted content is meant to be private and what is meant to be public are
considerations when courts review alleged ECPA violations. Use of social networking sites as
the means to communicate among employees regarding work-related matters also muddies the
distinction between personal content and work-related content. In most states, with proper
authorization, the employer can access and monitor social networking sites, but the question of
how authorization was obtained has been raised in the courts. Moreover, the public debate over
the use of social media monitoring in the workplace has resulted in legislative prohibitions to its
use in some states and in similar pending legislation in many other states (Employer Access,
2013).

The National Labor Relations Act (NLRA)

Further complicating the balancing act between protecting an organization’s interest in
monitoring employee electronic activities and protecting employees’ rights in the workplace is
the National Labor Relations Act of 1935 (NLRA). Generally thought of as the law that protects

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

employees’ rights to organize, the NLRA includes provisions that apply to unionized and non-
unionized employees. Importantly, the NLRA protects the right of employees to engage in
concerted and collective activity in an effort to improve the terms and conditions of their
employment. Employees have the right to discuss terms and conditions of employment with
other co-workers and third parties and to take action to improve working conditions either
individually or with other co-workers without retaliation by employers (National Labor Relations
Act § 7). Employee conversations and expressions involving working conditions, wages, job
performance issues, and problems with supervisors, for example, are protected. Such
conversations are deemed lawful concerted activities.
The National Labor Relations Board (NLRB) is the administrative agency responsible for
implementing and enforcing the NLRA. The NLRB has dispute resolution as well as regulatory
functions (National Labor Relations Act § 3). In recent decisions, the NLRB has made it clear
that while employers may monitor employees’ electronic expressions, adverse action against
employees for protected concerted activities or policies infringing on or chilling employees’
ability to exercise their rights are unlawful. (OM 2011). Determinations as to whether employee
posts are protected by the NLRA are made by the NLRB based on whether there was concerted
activity, meaning that the employee actions are taken with or on the authority of co-workers and
not solely on the employee’s own behalf (Meyers Industries 1984).
At the outset of this discussion, it should be noted that the validity of some of the NLRB
decisions mentioned below is in question as a result of legal challenges to several of President
Obama’s appointments of NLRB members. The President is entitled to make recess
appointments of federal officers when the Senate is in recess, and the current challenges revolve
around whether the Senate was actually in recess or was technically in session when President
Obama made the appointments. The United States Supreme Court heard oral arguments on the
question of these appointments in January 2014, and a decision has not yet been announced. A
determination by the high court that the appointments were invalid could, in turn, invalidate
NLRB decisions made when there were not enough legally appointed members to constitute a
quorum (NLRB v. Noel Canning, 2013). Beyond this immediate question, NLRB policies and
practices may also be subject to court challenges. With these limitations in mind, a review of the
NLRB’s current philosophy regarding social media and employee monitoring is instructive to
employers who are developing or reviewing their social media policies.
In recent decisions, the NLRB found several employee-Facebook postings to be
concerted activity and, therefore, protected under the NLRA. In one case an employee posted
comments that her non-profit employer did not help clients sufficiently and that a co-workers’
job performance was lacking. Those postings were made in anticipation of a meeting with a
supervisor and the employee solicited responses from her co-workers regarding her complaints
thus her postings were protected (Hispanics United of Buffalo, Inc., 2012). Another case of
social media postings falling within the protection of concerted activity involved comments and
photographs derogatory of an employer event and the impact the disappointing event would have
on sales and commissions. The Facebook postings were made after employees discussed their
concerns among themselves and with a sales manager (Karl Knauz BMW, Knauz Auto Group,
2012). In addition, Facebook discussions between employees and a former employer expressing
upset and concern over the employer’s failure to withhold sufficient state taxes and its inability
to complete paperwork properly was also protected when one employee stated that the issue was
to be discussed with management at a staff meeting (OM 2011).

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However, not all employee conversations or expressions meet the concerted activity
standard. Statements that are defamatory and maliciously false, disrupt business operations, or
undermine supervisory authority may not be protected although that determination is dependent
on the place where the discussion took place, its subject matter, the contents of an employee’s
outburst and whether the expression was provoked by an unfair labor practice (Atlantic Steel
1979). In a case involving a reporter who “tweeted” offensive comments that the employer found
to be unprofessional and inappropriate, the discipline imposed was lawful since the “tweets” did
not involve conversations with other employees and did not relate to the terms and conditions of
his employment. Moreover, disparaging comments made by an employee about her employers
posted on the “wall” of her senator’s Facebook page were not protected. The employee did not
discuss the issues with co-workers at any time before or after the posts were made, nor did she
raise any of the issues to management (OM 2011).
Employers who have drafted well-intentioned electronic communication policies have
found themselves attempting to persuade the NLRB, often unsuccessfully, that their policies do
not discourage protected concerted activity. To offer guidance in this often challenging area of
law, the General Counsel office of the NLRB issued an Operations Management Memo on May
30, 2012. This OM Memo reviewed several social media policies that were found to have
provisions that could be interpreted as unlawfully restricting protected collective activity. The
OM Memo concluded with an acceptable social media policy that General Counsel found to be
lawful (OM 2012).
The policies found to be flawed by General Counsel typically included language that was
considered overbroad in that it could be interpreted as discouraging protected concerted activity.
One employer’s social media policy instructed employees “[not to] release confidential guest,
team member, or company information” (OM 2012, p. 4). Although this language may seem like
a reasonable attempt to protect proprietary employer information as well as the confidentiality of
the organization’s guests and workers, General Counsel determined that it could be interpreted as
forbidding employees from discussing the terms and conditions of their employment, rendering
the policy provision unlawful.
A second policy advised employees that anything employment-related that they post must
be “completely accurate and not misleading” (OM 2012, p. 6). While this provision may be an
attempt by the employer to avoid charges of commercial disparagement or defamation, General
Counsel objected to this language because it could be interpreted to forbid discussions of the
terms and conditions of employment or criticism of the employer’s policies and practices. This
same policy also instructed employees to make certain that they did not post non-public
information on a public site. This provision, while a seemingly reasonable attempt to address the
employer’s confidentiality obligations as well as protect its proprietary information, suffered a
fatal flaw in that it specifically included information about employees’ terms and conditions of
employment in the definition of “non-public information.” Yet another flaw in this same policy
involved a prohibition on the use of the employer’s logo in employee postings, which General
Counsel determined could unlawfully prohibit employees from posting photographs of workers
engaged in protected concerted activities, such as picketing with signs containing an image of the
company’s logo. General Counsel did, however, find prohibitions on the posting of safety
performance of its products and attorney-client privileged material to be lawful, since these did
not mention employees or any potential concerted activity (OM 2012).
This same employer was also apparently concerned about the potential for workplace
harassment or discrimination claims, as it included a provision in its social media policy

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62

instructing employees to avoid posting material that is “offensive, demeaning, abusive, or
inappropriate” (OM 2012, p. 8). Employees were also cautioned against “friending” co-workers
on outside social media sites if communication with those co-workers would be inappropriate in
the workplace. The policy concluded with a “savings clause” asserting that the policy would “be
administered in compliance with applicable laws and regulations (including Section 7 of the
National Labor Relations Act)” (OM 2012, p. 8). General Counsel determined that the
prohibition against “offensive, demeaning, abusive, or inappropriate” comments was overbroad
in that it could be interpreted to include criticisms or complaints about the terms and conditions
of employment. The failure of the employer to identify which communications with co-workers
would be inappropriate rendered the “friending” caution ambiguous and thus an unlawful
discouragement of communication among co-workers. A provision directing employees to
“report any unusual or inappropriate internal social media activity was found unlawful in that it
would likely discourage employees from engaging in protected concerted activity. The
employer’s “savings clause” was insufficient to overcome the ambiguities and overbreadth of the
objectionable policy provisions (OM 2012).
Confidentiality concerns over “personal information” that were reflected in another
employer’s social media policy were also found to be overbroad by General Counsel because
“personal information” could be interpreted to include the employees’ “terms and conditions” of
employment. A provision prohibiting employees from commenting on legal matters or disputes
was also found unlawful. Unlike a more narrow provision that forbids disclosure only of
attorney-client privileged information, a prohibition against commenting on legal matters or
disputes could be interpreted as forbidding the protected discussion of employee concerns. The
employer advised employees to adopt a professional and courteous tone in their online postings,
but General Counsel found this provision to be unlawful because it might discourage discussion
of controversial subjects, such as protected concerted activity (OM 2012). A provision
encouraging employees to address workplace concerns directly with co-workers and supervisors,
rather than airing them on social media, was also found to be unlawful, as it might discourage
employees from initiating or taking part in protected concerted activity. As with the previous
employer’s policy, a savings clause was determined to be insufficient to cure the flaws identified
by General Counsel (OM 2012).
The fourth policy reviewed by General Counsel contained an overbroad prohibition on
the posting of non-public information, which could be interpreted to include information on the
terms and conditions of employment. A prohibition on the posting of confidential or proprietary
information was ruled to be overbroad for the same reason, as was a prohibition on postings that
might harm the image or reputation of the employer. However, the employer’s prohibition on the
posting of “harassment, bullying, discrimination, or retaliation” was deemed lawful, as it could
not reasonably be interpreted as including protected concerted activity. A provision allowing
internal concerted activity and discussions about the terms and conditions of employment while
forbidding the same activity and discussions on a public forum was deemed unlawful and could
not be salvaged by a savings clause (OM 2012).
The fifth policy contained a requirement that employees report unsolicited or
inappropriate postings to a designated company official. This was deemed unlawful because
employees could interpret this provision as requiring them to report concerted action, thus
chilling such protected action. General Counsel also invalidated a provision forbidding postings
that disparage or defame the employer, as this could discourage criticisms of the employer’s
policies or practices. A provision forbidding certain postings on company time were found

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

unlawful because the NLRA grants workers the right to engage in concerted activity on the
employer’s premises during non-work times such as breaks (OM 2012).
In the sixth policy reviewed by General Counsel, restrictions on employee contact with
the media and with government agencies absent prior approval by or notice to the employer were
found to be unlawful limitations on concerted activity, which includes the right to communicate
with third parties concerning the terms and conditions of employment (OM 2012).
The OM Memo concluded with a seventh policy that had been revised from an earlier
version and which apparently cured flaws identified in the earlier version. It should be noted that
the policy found to be acceptable in its entirety, attached below as Appendix A, addresses social
media only and not other forms of electronic activity, and that it also references documents and
policies that are not included in the OM Memo. Nevertheless, it provides useful guidance for
organizations seeking to draft and implement a policy that does not inadvertently chill protected
employee activity. General Counsel noted with approval that the seventh policy included
examples of activity that was clearly not protected, thus clarifying and removing any potential
ambiguities. The policy carefully identifies and narrowly defines prohibited communications to
include only those that may properly be forbidden, such as disclosure of trade secrets or
communications that would constitute unlawful harassment or create a hostile work environment.
The approved policy thus strikes an appropriate balance between serving the employer’s interest
in avoiding inappropriate employee online communications and also protecting the rights of
employees to freely discuss the terms and conditions of their employment. (OM 2012; App. A).

State Restrictions on Use of Social Media to Monitor

The increasing popularity of social media in both personal and business applications has
naturally led some employers to seek access to their employees’ social media accounts, whether
private or workplace-related. It has become common for an employer to ask applicants for access
information, such as usernames and passwords, to social media accounts. Once the applicant is
employed is it also common for an employer to continue monitoring her or his social media
accounts. This clearly places applicants and employees in an uncomfortable dilemma: either
grant access to what one intended and wished to keep restricted to a narrow audience or refuse
access, which would likely be viewed negatively by an employer or potential employer. In
response to the privacy concerns of prospective and current employees, a number of states have
either passed or are considering legislation forbidding employers from even inquiring as to
whether these individuals have social media accounts as well as from requesting access to those
accounts (Employee Access, 2013). In many of the states with current or pending legislation
limiting employer access to employees’ social media accounts, there are exceptions that allow
access when necessary to investigate allegations of work-related misconduct or the disclosure of
proprietary information. Some states may also allow employers to monitor employee activity that
takes place using employer-provided resources, such as the employer’s email system or internet
server (See, e.g., Cal. Lab.Code §980).

REVISITING MONITORING POLICIES

Clearly, the legal impacts associated with the failure to monitor are considerable and
compel an organization to monitor employees to mitigate the reputational and financial
consequences of potential unlawful and wrongful conduct. On the other hand, the operation of an

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015

organization is dependent on its employees and their perception of trust regarding the
organization for which they work. A mix of federal and state laws and court decisions, recent
NLRB decisions, and state legislative actions regarding social media and monitoring mandate
that the organization’s existing monitoring policies be reviewed and revisited.
A logical starting point would be to review the organization’s existing policies to see
whether or to what extent they address concerns about an employee’s electronic activities. Where
employee monitoring policies already exist, they may be updated or modified to reflect current
conditions or workplace needs. It may be helpful to include specific examples of what type of
employee activities are permitted and what type of employee activities are forbidden. Critical
concerns such as the importance of protecting proprietary or other confidential information
should be identified and explained to employees. Ideally, a policy should provide employees
with the contact information of a person or persons within the organization who can answer
questions or address concerns that an employee might have concerning the policy (Mann, 2011).
Employees should be made aware of the monitoring policy prior to its implementation, and
should be periodically reminded of the policy. While in most cases notice of monitoring
activities by an organization are not required by law unless applicable state law exists, consent of
the employee to the monitoring provides the broadest protection for the organization. Implied
consent such as computer screen warnings also provide consent when the employee uses the
device after the warning banner is viewed (United States v. Greiner, 2007). Organizations may
be successful in defending against invasion of privacy lawsuits when the monitoring policy
includes a form for the employee to sign acknowledging her or his awareness of the policy
and/or consenting to its provisions. Clear notice of monitoring activities and consent by the
employee reduces the employee’s expectation of privacy, the basis of privacy violation claims.
Notifying employees of the employer’s monitoring policies also serves an additional
purpose. Should a legal dispute arise regarding wrongful employee conduct and injury to others,
a monitoring policy will allow the organization to document attempts to restrict unlawful
employee conduct, potentially limiting a business’s liability exposure. (Ciocchetti, 2011). Given
this benefit, it might be tempting to establish a complete ban on use of electronic devices for
non-work-related activities. However, such a policy may not pass legal muster due the
problematic nature of enforcing such a strict policy. The lack of enforcement might prove to
hinder the organization’s efforts to protect third parties from employee misconduct and also to
protect the business’s own interests. A lack of enforcement might also send an unintended
message to employees that the organization does not seriously enforce the policy and lacks
commitment to the policy (Stengart v. Loving Care Agency, 2009). Consistent enforcement of a
monitoring policy is needed to convince employees, and courts, of the seriousness of policy
violations (Huth, 2013).
The objective of any policy is to allow the employee to conform her or his behavior to
that established within the policy. To that end, clear enforcement policies, indicating the
justifications necessitating monitoring, will help avoid the uncertainty and concern employees
experience in the monitored workplace environment and allow employees to align behaviors
with policy (Huth, 2013). Emphasizing the importance of monitoring for the organization and the
reasons supporting monitoring provide a foundation on which employees can base their
workplace conduct (Henle, Kohut & Booth, 2009).
Once developed or revised, any monitoring policy should be carefully reviewed, prior to
its implementation, by an attorney knowledgeable of both the federal laws and the law of the
states in which the business operates. An organization operating in more than one state may be

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65

subjected to a variety of state laws concerning employee monitoring that can result in different
outcomes from one state to the next, so attention to variations in state laws is crucial.
Importantly, employee monitoring policies, like all employment policies, should be reviewed on
a regular basis to determine their effectiveness and continued legality in the ever-changing
landscape of employment law.

CONCLUSION

Employers face a wide array of legal consequences for failing to reasonably track
employee behavior and conduct that result in injuries to others. The competitive marketplace also
makes an employer wary of employees who may injure the business by exposing trade secrets or
revealing business processes to the competition. Technology has greatly expanded the means by
which employers can protect themselves and others but that technology comes at a price.
Overzealous monitoring of employees can result in claims of invasion of privacy or other legal
violations and more recently claims of violations of the NLRA or newly created state statutes.
The line between legal and illegal employee monitoring can be a fine one and it serves to place
employers in a difficult and potentially costly position. In light of new legal developments,
revisiting existing monitoring policies can serve to reduce potential violations of employees’
rights while maintaining the level of monitoring necessary to achieve organizational goals.

APPENDIX A: SAMPLE SOCIAL MEDIA POLICY APPROVED BY THE NLRB

The following example of a Social Media Policy was reprinted in its entirety (OM 2012, pp. 22-24).

Social Media Policy

Updated: May 4, 2012

At [Employer], we understand that social media can be a fun and rewarding way to share your life and
opinions with family, friends and co-workers around the world. However, use of social media also presents
certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about
your use of social media, we have established these guidelines for appropriate use of social media.
This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the
United States ([Employer]).
Managers and supervisors should use the supplemental Social Media Management Guidelines for
additional guidance in administering the policy.

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things. Social
media includes all means of communicating or posting information or content of any sort on the Internet,
including to your own or someone else’s web log or blog, journal or diary, personal web site, social
networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated
with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your
activities online. Ultimately, you are solely responsible for what you post online. Before creating online
content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct
that adversely affects your job performance, the performance of fellow associates or otherwise adversely

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66

affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s]
legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information
Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent
with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and
threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to
disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on
behalf of [Employer]. Also, keep in mind that you are more likely to resolve work-related complaints by
speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to
a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements,
photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or
intimidating, that disparage customers, members, associates or suppliers, or that might constitute
harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally
harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of
race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a
mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet
archives almost everything; therefore, even deleted postings can be searched. Never post any information
or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers,
people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

Maintain the confidentiality of [Employer} trade secrets and private or confidential information. Trade
secrets may include information regarding the development of systems, processes, products,
know-how and technology. Do not post internal reports, policies, procedures or other internal
business-related confidential communications.

Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to
others so that they may buy or sell stocks or securities. Such online conduct may also violate the
Insider Trading Policy.

Do not create a link from your blog, website or other social networking site to a [Employer] website
without identifying yourself as a [Employer] associate.

Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If
[Employer is a subject of the content you are creating, be clear and open about the fact that you are
an associate and make it clear that your views do not represent those of [Employer], fellow
associates, members, customers, suppliers or people working on behalf of [Employer]. If you do
publish a blog or post online related to the work you do or subjects associated with [Employer],
make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer
such as “The postings on this site are my own and do not necessarily reflect the views of
[Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related
as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer]
email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited
[Employer] prohibits taking negative action against any associate for reporting a possible deviation from
this policy or for cooperating in an investigation. Any associate who retaliates against another associate for

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015
67

reporting a possible deviation from this policy or for cooperating in an investigation will be subject to
disciplinary action, up to and including termination.

Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs
Department. All media inquiries should be directed to them.

For more information
If you have questions or need further guidance, please contact your HR representative.

REFERENCES

Abril, P. S., A. Levin, & A. Del Riego (2012). Blurred boundaries: Social media privacy and the twenty-first century

employee. American Business Law Journal, 49, 63-167.
American Management Association (AMA) (2000). 2000 Workplace monitoring & surveillance survey: Summary

of key findings. American Management Association. Retrieved July 19, 2012 from http://www.jinbo.net/
maybbs/pds/www/cyberight/monitr_surv

American Management Association (AMA) (2001). More companies watching employees, American Management
Association annual survey reports. American Management Association. Retrieved August 1, 2012 from
http://www.keylogger.org/articles/american-management-association-ama/more-companies-watching-
employees-american-management-association-annual-survey-reports-2.html

American Management Association (AMA) (2005). 2005 Electronic monitoring & surveillance survey. American
Management Association. Retrieved July 10, 2013 from http://www.epolicyinstitute.com/
survey2005Summary

American Management Association (AMA) (2008). 2007 Electronic monitoring & surveillance survey: Over half of
all employers combined fire workers for e-mail and internet abuse. American Management Association.
Retrieved July 12, 2012 from http://press.amanet.org/press-releases/177/2007-electronic-monitoring-
surveillance-survey/

Anonymous (2005). Many companies monitoring, recording, videotaping (and firing) employees. The Journal of the
Connecticut Business & Industry Association, 83(6). Retrieved August 30, 2012 from
http://www.cbia.com/cbianews/2005/07/200507_CompaniesMonitoring.htm

Arias v. Mutual Cent. Alarm Servs., Inc., 202 F. 3d 533 (2d Cir. 1998).
Atlantic Steel, 245 NLRB 814 (1979).
Bondi, B.J. & S.D. Lofchie (2011). The Law of Insider Trading: Legal Theories, Common Defenses, and Best

Practices for Ensuring Compliance. New York University Journal of Law & Business, 8, 151- 201.
Cal. Lab. Code §980 (Deering 2014).
Casper, C. (2011). Hype cycle for privacy, 2011. Gartner, Inc. Retrieved June 20, 2012 from

http://www.gartner.com/ id=1751128
City of Ontario v. Quon, 560 U.S. 746 (2010).
Ciocchetti , C. A. (2011). The eavesdropping employer: A twenty-first century framework for employee monitoring.

American Business Law Journal, 48, 285-359.
Economic Espionage Act, 18 U.S.C. §§1831-1839 (2012).
Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2712 (2012).
Employer Access to Social Media Passwords and Usernames (2013). National Conference of State Legislatures.

Retrieved March 28, 2013 from http://www.ncsl.org/issues-research/telecom/employer-access-to-social-
media-passwords-2013.aspx

Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (2012).
Federal Bureau of Investigation (n.d.). The insider threat: An introduction to detecting and deterring an insider spy.

United States Department of Justice (no date).
Ford, J. C., B. J. White, & L. Willey (2010). Software development and intellectual property: What you don’t know

can hurt you. Issues in Information Systems, 11(1), 77-84.
Gaskell v. University of Kentucky, No. 09-244-KSF, 2010 U.S. Dist. LEXIS 124572 (E.D. Ky Nov. 23, 2010).
Global Policy Partners v. Yessin, 686 F. Supp. 2d 642 (E.D. Va. 2009).
Graham-Leach-Bliley Financial Modernization Act of 1999, 15 U.S.C. §§ 6801-6803 (2012).

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015
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Grasz, J. (2006). One-in-four hiring managers have used internet search engines to screen job candidates; one-in-ten
have used social networking sites, CareerBuilder.com survey finds. Careerbuilder.com. Retrieved April 19,
2012 from http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx? id=pr331&ed= 12%2F 31
%2F2006&sd=10%2F26%2F2006

Grasz, J. (2013). More employers finding reasons not to hire candidates on social media, finds CareerBuilder survey.
Careerbuilder.com. Retrieved September 1, 2013 from
http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=6%2F26%2F2013&id=pr766&ed
=12%2F31%2F2013

Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d-6 (2011).
Henle, C. A., G. Kohut, & R. Booth (2009). Designing electronic use policies to enhance employee perceptions of

fairness and to reduce cyberloafing: An empirical test of justice theory. Computers in Human
Behavior, 25(4), 902-910.

Hispanics United of Buffalo, Inc., 359 NLRB 37 (2012).
Huth, C. L. (2013). The insider threat and employee privacy: An overview of recent case law. Computer Law &

Security Review, 29(4), 368-381.
Karl Knauz BMW, Knauz Auto Group, 358 NLRB 164 (2012).
Katz v. United States, 389 U.S. 347 (1967).
Lanham Act, 15 U.S.C. § 1125(a) (2012).
Levinson, A. R. (2011). Workplace privacy and monitoring: The quest for balanced interests. Cleveland State Law

Review, 59, 377-397.
Levinson, A. R. (2012). Toward a cohesive interpretation of the electronic communications privacy act for the

electronic monitoring of employees, West Virginia Law Review, 114, 461-530.
Mann, J. (2011, May 11). Take four initial steps toward a social media policy, Gartner, Inc. Available:

www.gartner.com/id=1664315.
Mann, J. (2012, March 9). Categorize employees when creating enterprise social media policy, Gartner, Inc.

Available: http://www.gartner.com/id=1946315
Matwyshyn, A. (Fall 2005). Material Vulnerabilities: Data privacy, corporate information security, and securities

regulation. Berkeley Business Law Journal, 3, 129-203.
Memorandum OM 11-74 (2011), Office of General Counsel, National Labor Relations Board.
Memorandum OM 12-59 (2012), Office of General Counsel, National Labor Relations Board.
Meyers Industries, 268 NLRB 493 (1984).
Model Rules of Professional Conduct, American Bar Association. Available:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/model_rules_of_professional_conduct_table_of_contents.html

Mujtaba, B. (2003). Ethical implications of employee monitoring: What leaders should consider. Journal of Applied
Management and Entrepreneurship, 8(3), 22-47.

National Labor Relations Act, 29 U.S.C. §§ 151-1

(2012).
NLRB v. Noel Canning,

5 F.3d 490 (D.C. 2013), cert. granted 133 S.Ct. 2861 (U.S. June 24, 2013) (No. 12-1281).
Papa, L., & S. Bass (2004). How employers can protect themselves from liability for employees’ misuse of

computer, internet, and e-mail systems in the workplace. Boston University Journal of Science and
Technology Law, 110-123.

Pure Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 555 (S.D.N.Y. 2008).
Restatement of Law (Third) of Agency, American Law Institute, (2006).
Restatement of Law (Second) of Torts, American Law Institute (1977).
Rozwell, C. (2012). Policy is not enough to inform employees about social media engagement. Gartner, Inc.

Retrieved July 3, 2012 from http://www.gartner.com/id=1916814
Schwartz, M. J. (2012). IBM launches advanced threat detection appliances. InformationWeek. Retrieved August 13,

2012 from http://www.informationweek.com/security/management/ibm-launches-advanced-threat-
detection-a/240004627

Stengart v. Loving Care Agency, 201 N. J. 300 (2009).
Sporer v. UAL Corporation, No. C 08-02835, 2009 WL 2761329 (N.D. Cal. 2009).
SuccessFactors, Inc. v. Softscape, Inc., 544 F.Supp.2d 975 (N.D. Cal. 2008).
Uniform Trade Secrets Act (1985).
United States v. Greiner, 235 Fed. Appx. 541 (9th Circuit 2007).
Walls, A. (2012a). Conduct digital surveillance ethically and legally: 2012 update. Gartner, Inc. Retrieved June 29,

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Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015
69

Walls, A. (2012b). Security tools for control of social media usage. Gartner, Inc. Retrieved June 29, 2012 from
http://www.gartner.com/id=2085715

Willey, L., J. C. Ford, B. J. White, & D. Clapper (2011). Trade secret law and information systems: Can your
students keep a secret. Journal of Information Systems, 22(3), 271-278.

Willey L., B. J. White, T. Domagalski, & J. C. Ford (2012), Candidate screening, information systems and the law;
social media considerations, Issues in Information Systems, 13(1), 300-309.

Winton, R. (2012, August 1). L.A. City Hall employees urged to stop watching the Olympics at work. Los Angeles
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olympics-20120801

Journal of Legal, Ethical and Regulatory Issues Volume 18, Number 1, 2015
70

Copyright of Journal of Legal, Ethical & Regulatory Issues is the property of Jordan Whitney
Enterprises, Inc. and its content may not be copied or emailed to multiple sites or posted to a
listserv without the copyright holder’s express written permission. However, users may print,
download, or email articles for individual use.

Week 7: Mini Lecture

Managing Change

Managers play a very important role during the change process in an organization. They must understand the changes, support employees, communicate effectively, advocate for the change, and reinforce it when it arrives. Ultimately, managers are accountable for adopting, embedding and sustaining new changes. If the leaders are not ready, willing and able to visibly reinforce the change – it will not stick.

Kotter’s 8 Step Change Model is designed as a campaign for change that managers can embrace. This is a simplistic model that is not focused on the actual change but on preparing people for and accepting change. The first three steps are all about creating a climate for change. The next steps focus on engaging and enabling the organization. And the final steps emphasize implementing and sustaining change (Normandin, 2012).

Flood & Coetsee (2013) assert that managers are usually able and competent in planning and structuring the change but less so when it comes to the people component of the change: implementing the change and building commitment towards the change. A variety of factors influence employee’s reaction to change. It is even irrational to think that there will be no negative employee reactions to change since the process of change itself involves going from the known to the unknown.

Technology continues to reshape the workplace as one the greatest areas of advancement and change. Technology in the workplace makes it possible for employees to telecommute, work from virtual offices around the world and communicate across the globe. Technology in business has increased efficiency and productivity; enhanced collaboration; improved management of organizational strategies and cost containment; and certainly, heightened the level of security in the business overall. Of the many technological changes, social media has permeated many aspects of daily life, and the workplace is no exception. According to Gonzales (2016) a recent study by a global law firm revealed that although 90% of businesses use social media for business purposes; 70% of those businesses also have created policies restricting employee’s use of social media at work.

Week 7 –

Assignment 1: Develop a Plan to Manage Change

Bottom of Form

Image Source:

Home

Length: 1-2 pages, not including title and reference pages

Include a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing.

Assignment 2: Analyze SC Johnson A Family Company’s Social Media Policies

Top of Form

Bottom of Form

Begin this assignment by obtaining a copy of SC Johnson A Family Company’s social media policy. You can find examples using the Internet. Know that in some cases the social media policy might not be a separate policy, but is either included in an overall technology policy or the employee policy manual. (I will be comparing this information with my company’s social media guidelines)

Is there a clear purpose underpinning for SC Johnson’s social media policy?

· What image of social media is portrayed from the overall policy?

· What concepts of social media and employee functions are identified?

· What social media challenges are identified?

· What policy strategies have been selected to address these challenges?

Length: 1-2 pages, not including title and reference pages
Include a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing.

References:

TED. (2016, May). Jim Hemerling: 5 ways to lead in an era of constant change [Video file].

Week 7 Grading Rubrics

Assignment 1: Develop a Plan to Manage Change

Content (4 Points)

Points

Assignment includes an analysis of at least three thoughts with one that could be assumed resistant.

There is discussion on the best strategies to alleviate team member concerns to ensure they support the organizational change.

Organization (1 Point)

Organized and presented in a clear manner. Included a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing; 1-2 pages in length.

Total

Assignment 2: Analyze Social Media Policies

Content (7 Points)

Points

There is a synopsis of the meeting with a person involved in the formation, monitoring or enforcement of a social media policy using the assignment questions.

1.5

A comparison is made regarding of the organization’s policy and the Adidas Group Social Media Guidelines.

1.5

Summary of social media policy guidelines to new company presented as white paper with recommendations

Organization (2 Points)

Organized and presented in a clear manner. Included a minimum of three (3) scholarly references, with appropriate APA formatting applied to citations and paraphrasing; 2-3 pages in length.

Total

Blurred Boundaries: Social Media
Privacy and the Twenty-First-Century
Employee
Patricia Sánchez Abril,* Avner Levin,** and
Alissa Del Riego***

INTRODUCTION

In his groundbreaking book on social psychology, Erving Goffman pro-
posed that human beings control others’ impressions of them through
performances within spatially defined social establishments.1 He described
a social establishment as “any place surrounded by fixed barriers to per-
ception in which a particular kind of activity regularly takes place.”2

Through these performances, Goffman posited, individuals create and
tailor their social identities for particular audiences. He argued that each
performance’s audience must be segregated from the others for the per-
formances to succeed. That is, an individual must “ensure that those
before whom he plays one of his parts will not be the same individual
before whom he plays a different part in another setting.”3 Individuals
preserve audience segregation by following the rules of decorum of each
social situation and by filtering the information about themselves available

*Assistant Professor of Business Law, University of Miami School of Business Administration;
B.A., Duke University, 1996; J.D., Harvard Law School, 2000.

**Associate Professor and Chair, Law & Business Department, Ted Rogers School of Man-
agement, Ryerson University. I wish to thank the Cegla Center for Interdisciplinary Research
of the Law at the Buchman Faculty of Law, Tel Aviv University, where I worked on drafts of
this article as a visiting scholar during 2011.

***J.D. Candidate, 2012 Harvard Law School; B.A., University of Miami, 2009.

1ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959).

2Id. at 238.

3Id. at 49.

American Business Law Journal
Volume 49, Issue 1,

–124, Spring 2012

to each audience. When the veil of audience segregation is pierced, accord-
ing to Goffman, social disruption ensues. The disclosure of information
to unintended audiences discredits the construction of roles and
identities within the group and causes “difficult problems in impression
management.”4

The workplace is perhaps the quintessential social establishment
where performers “cooperate to present to an audience a given definition
of the situation.”5 Professionalism is the language of the traditional work-
place performance. It includes conduct and appearance that demonstrate
good judgment, a respectable stature, and the maintenance of “an air of
competency and a general grasp of the situation.”6 To that end, traditional
professionalism demands audience segregation between the employee’s
professional and private personas.

Goffman’s seminal text was written in 1959, well before the digital
revolution changed our vehicles of social interaction. Today, technology
makes the boundaries between the professional and personal more
porous. The social establishments bounded by physical space about which
Goffman wrote are no longer barriers for social performances and per-
ceptions. Personal blogs, social media profiles, Tweets, and other online
fora allow individuals to publicly express multiple facets of themselves,
including their private lives and their opinions. Employer-provided
laptops and mobile devices do not discriminate between private and pro-
fessional communications or locations. These “boundary-crossing”
technologies blur the already elusive line between the private and the
public, the home and the workplace. Private information that was pre-
viously segregated now becomes easily accessible to employers, colleagues,
recruiters, and clients, among other perhaps unintended audiences. By
its nature, digital information is infinitely transferable and hard to control.
This openness has far-reaching effects on personal privacy, reputation,
and self-expression.

Privacy law in the United States has traditionally been defined by
physical and social establishments like those described by Goffman. The
reasonable expectation of privacy analysis, which is endemic to privacy
jurisprudence, is firmly rooted in the experience of physical space and its

4Id. at 139.

5Id. at 238.

6Id. at 47.

64 Vol. 49 / American Business Law Journal

surrounding normative circumstances. The evaluation of whether privacy
expectations reasonably exist is present in nearly every assessment of
privacy under U.S. law, from torts to statutory rights. In a recent case, City
of Ontario v. Quon, the U.S. Supreme Court was charged with qualifying the
privacy expectations of an employee in a social establishment not defined
by physical boundaries: text messages.7 Officer Quon claimed a violation of
privacy when his employer searched the personal text messages he sent on
his employer-provided pager.8 The Court eschewed making what it
deemed would be premature legal conclusions regarding privacy and
technology, stating that “rapid changes in the dynamics of communication
and information transmission [are] evident not just in the technology itself
but in what society accepts as proper behavior.”9 It admitted having “dif-
ficulty predicting how employees’ privacy expectations will be shaped by
those changes or the degree to which society will be prepared to recognize
those expectations as reasonable.”10

Like the U.S. Supreme Court, other tribunals and lawmakers around
the world are having trouble conceptualizing privacy in new technologies.
In Europe, courts and legislatures alike are debating the wisdom of a
proposed “right to be forgotten,” an individual right that allows citizens to
delete unwanted information online about them.11 The Canadian
Supreme Court has echoed the U.S. Supreme Court’s reticence, opting to
“leave the privacy implications of the more evolved technology to be
decided when a comprehensive evidentiary record has been developed.”12

The shared unease among lawmakers around the world suggests that
they need more information to gauge privacy and behavioral norms for
new technologies. Without clear instruction from the law or a crystal ball,
indicators of normative views are the best way to forecast how expectations

7130 S. Ct. 2619, 2625 (2010).

8Id.

9Id. at 2629.

10Id. at 2630.

11Matt Warman, Online Right “To be Forgotten” Confirmed by EU, TELEGRAPH (Mar. 17, 2011,
12:53 PM), http://www.telegraph.co.uk/technology/Internet/8388033/Online-right-to-be-
forgotten-confirmed-by-EU.html.

12R. v. Gomboc, [2010] 3 S.C.R. 211, para. 40 (Can.); see also R. v. Tessling, [2004] 3 S.C.R. 432,
para. 55 (Can.) (“Whatever evolution occurs in future will have to be dealt with by the courts
step by step. Concerns should be addressed as they truly arise.”).

2012 / Social Media Privacy and the Twenty-First-Century Employee 65

of privacy are being shaped in new contexts and technologies. In this
article, we canvass existing domestic and international jurisprudence on
social media and related technologies in the workplace, in tandem with the
self-reported privacy expectations of the emerging workforce. We analyze
the findings of a survey conducted on two university campuses that asked
various questions of business students who were imminently entering the
workforce to ascertain their privacy expectations regarding social media in
the workplace. While legislatures and courts have waffled in characterizing
privacy expectations in social media, the rising generation of workers
already manifests certain beliefs about the technology as it plays out in work
life. Our findings suggest that Millennials13 are cognizant of their reputa-
tional vulnerability on digital media but are not willing to sacrifice Internet
participation to segregate their multiple life performances. Lacking the
technological or legal ability to shield performances, Millennials rely on
others, including employers, to refrain from judging them across contexts.
Their stated expectations of privacy, therefore, appear to be somewhat
paradoxical: employee respondents generally want privacy from unin-
tended employer eyes, and yet they share a significant amount of personal
information online, knowing it could become available to employers and
others. What is at the core of this seemingly contradictory behavior? Is it
just an adolescent “have my cake and eat it too” mentality, or does it reveal
something deeper about privacy and social performances? Should legal
doctrines and business practices acknowledge this expectation?

Informed by our empirical findings, we address these questions
and offer recommendations about the future of law and business practices
in a digital world. These recommendations strike a balance between
employees’ dignitary interests and employers’ practical realities. The ways
that law and society respond to the multiple issues presented by boundary-
crossing technologies will certainly affect the evolution of technology, the
demands of the twenty-first-century workplace, and individual
autonomy.

In Part I, we provide an overview of the extant legal landscape
with an emphasis on three general areas of employer activity related to
employees’ online activities: (1) monitoring and surveillance of employee
social media profiles, (2) evaluation of applicants’ social media pro-
files and online speech in making hiring decisions, and (3) limiting

13NEIL HOWE & WILLIAM STRAUSS, MILLENNIALS RISING: THE NEXT GREAT GENERATION 4 (2000)
(defining Millennials as those “born in or after 1982”).

66 Vol. 49 / American Business Law Journal

employees’ off-duty online activities. In Part II, we report the findings of
an empirical project assessing young employees’ expectations regarding
the role of technology, particularly social media, in the workplace.14 The
survey asked respondents about a wide range of topics related to social
media, such as the extent of personal information they post online, the
privacy-protective measures they employ on social media sites, their level
of concern regarding their privacy online, and their attitudes and expec-
tations regarding the use of social media in the workplace. Despite grant-
ing employers access to information about their private lives by
participating online, respondents expect that work life and private life
should be generally segregated—and that actions in one domain should
not affect the other. Guided by the survey findings and legal examples
from international jurisdictions, in Part III we discuss the future of
employee privacy in social media and offer workable recommendations
designed to protect employees’ desire to maintain some separation
between personal and professional contexts.

I. THE LAW ON SOCIAL MEDIA IN THE WORKPLACE

Whether it involves using employer computers to check personal e-mail
and social network profiles or sending text messages on employer-
provided communications devices, employee use of boundary-crossing
technologies in the workplace for personal purposes is prevalent.15 Social

14The findings discussed in this article are part of a larger research project we conducted
regarding the basic questions of online conduct and social media usage. The same survey was
administered to university students at Ryerson University, Canada, and the University of
Miami in Coral Gables, Florida. The Canadian portion of the project was funded by the
Privacy Commissioner of Canada’s Contributions Program and those data were reported to
the Privacy Commissioner of Canada. For the full Canadian report, see AVNER LEVIN ET AL.,
PRIVACY AND CYBER CRIME INST., THE NEXT DIGITAL DIVIDE: ONLINE SOCIAL NETWORK PRIVACY
(2008), available at http://www.ryerson.ca/tedrogersschool/privacy/Ryerson_Privacy_Institute_
OSN_Report . In 2009, some of the aggregate Canadian and American data relating to
general expectations of privacy were published in the Vanderbilt Journal of Entertainment and
Technology Law. Avner Levin & Patricia Sánchez Abril, Two Notions of Privacy Online, 11 VAND.
J. ENT. & TECH. L. 1001 (2009). This article focuses on the aggregate data particular to the
employment context. We refer to and cite the 2009 article throughout for general proposi-
tions regarding the survey and its overall findings.

15See, e.g., Corey A. Ciocchetti, Monitoring Employee E-mail: Efficient Workplaces Vs. Employee
Privacy, 2001 DUKE L. & TECH. REV. 0026 (2001), available at http://www.law.duke.edu/

2012 / Social Media Privacy and the Twenty-First-Century Employee 67

media, in particular, has permeated modern culture and the daily lives of
the incoming workforce.16 Both businesses and individuals view sites like
Facebook and Twitter as valuable marketing and communication tools.17

However, given these sites’ relative newness and the ill-defined norms
surrounding them, their use across work/life contexts raises numerous
legal, ethical, and business-related questions.

Accounts of employees discrediting themselves and their employers
via postings on social networking and media sites have become ubiquitous.
A high school teacher was dismissed after posting on her Facebook page
that she thought residents of the school district were “arrogant and
snobby” and that she was “so not looking forward to another year [at the
school].”18 A flight attendant was fired for posting suggestive pictures of

journals/dltr/articles/2001dltr0026.html (discussing employee use of personal e-mail in the
workplace); Cindy Krischer Goodman, Cellphones Raise Workplace Issues, MIAMI HERALD, Feb. 2,
2011, at B6, available at http://www.miamiherald.com/2011/02/01/2045915/cellphones-raise-
workplace-issues.html (discussing employee use of personal cell phones in the workplace);
Cindy Krischer Goodman, Social Networks Test Companies’ Boundaries, MIAMIHERALD.COM ( Jan.
19, 2011), http://www.miamiherald.com/2011/01/18/2022458/social-networks-test-companies.
html (discussing the use of online social networks in the workplace).

16Facebook, MySpace, Twitter, and LinkedIn boast a combined 1045 million worldwide users,
with Facebook accounting for seventy-two percent of that figure (despite first reaching 250
million users in just 2009). See Statistics, FACEBOOK.COM, http://www.facebook.com/press/
info.php?statistics (last visited Aug. 11, 2011); see also About Us, LINKEDIN.COM, http://
press.linkedin.com/about (last visited Aug. 11, 2011); Nicholas Carlson, Chart of the Day: How
Many Users Does Twitter Really Have? BUSINESS INSIDER (Mar. 31, 2011, 6:20 PM), http://
www.businessinsider.com/chart-of-the-day-how-many-users-does-twitter-really-have-2011-3;
Company Timeline, FACEBOOK.COM, http://www.facebook.com/press/info.php?timeline (last
visited Aug. 11, 2011).

17See Robert Ball, Social Media Marketing: What’s the Payoff for Your Business, HUFFINGTON POST
(Feb. 24, 2011, 6:00 PM), http://www.huffingtonpost.com/robert-ball/do-you-know-how-
social-me_b_826802.html (reporting a survey that found seventy percent of small businesses
use social media for marketing); David Bayer, Social Media Marketing—Using Twitter and
Facebook to Grow Your Business and Maintain Relationships, MORTGAGE NEWS DAILY (Nov. 12, 2009,
11:18 AM), http://www.mortgagenewsdaily.com/channels/community/118706.aspx (provid-
ing a primer for marketing on Facebook and Twitter and noting that “[s]ocial media mar-
keting has been on the rise for the past several years”); Josh Halliday, Twitter and Facebook
Under Scrutiny as ASA Polices Online Marketing, GUARDIAN (Mar. 1, 2011, 6:01 AM), http://
www.guardian.co.uk/media/2011/mar/01/twitter-facebook-online-marketing-asa (reporting
that the United Kingdom’s Advertising Standards Authority extended its regulatory over-
sight to include companies’ online marketing).

18H.S. Teacher Loses Job Over Facebook Posting, BOSTONCHANNEL.COM (Aug. 18, 2010, 7:06 AM),
http://www.thebostonchannel.com/r/24670937/detail.html.

68 Vol. 49 / American Business Law Journal

herself in her company uniform.19 A study reported medical students
engaged in unprofessional banter and disclosure about patients on their
social networking profiles.20 Two pizza chain employees were fired after
posting a “prank” video on YouTube that showed them preparing sand-
wiches at work while one put cheese up his nose and mucus on the food.21

Whether these well-documented anecdotes reflect ill-advised judgment of
employees or overly aggressive responses by employers, they exemplify
the tension between employer interests and employee privacy and speech
rights.

Employer intrusion into an employee’s personal life threatens the
employee’s freedom, dignity, and privacy—and may lead to discriminatory
practices. A considerable body of business research indicates that employer
invasiveness may lead to higher levels of employee stress, lower levels of
productivity, and worse employee health and morale.22 Despite docu-
mented adverse effects, employee monitoring and surveillance remain
pervasive in the business world.23 Employers have compelling business

19Complaint, Simonetti v. Delta Airlines Inc., No. 1:05-cv-2321 (N.D. Ga. Sept. 7, 2005), 2005
WL 2897844 (stayed pending Delta bankruptcy proceedings).

20Katherine C. Chretien et al., Online Posting of Unprofessional Conduct by Medical Students, 302
J. AM. MED. ASS’N 1309 (2009).

21Stephanie Clifford, Video Prank at Domino’s Taints Brand, N.Y. TIMES, Apr. 16, 2009, at B1.

22See FREDERICK S. LANE III, THE NAKED EMPLOYEE: HOW TECHNOLOGY IS COMPROMISING WORK-
PLACE PRIVACY 11–16 (2003) (describing increased workplace surveillance as “inherently
destructive of employee morale” and the Web as a “seductive” drain to employee productiv-
ity); Maureen L. Ambrose et al., Electronic Performance Monitoring: A Consideration of Rights, in
MANAGERIAL ETHICS: MORAL MANAGEMENT OF PEOPLE AND PROCESS 61, 69–72 (Marshall Schminke
ed., 1998) (discussing the fact that employer video surveillance, eavesdropping, and com-
puter monitoring generally can lead to employee stress, worsening health, and declining
productivity); Jeffrey M. Stanton, Traditional and Electronic Monitoring from an Organizational
Justice Perspective, 15 J. BUS. & PSYCHOL. 129, 130, 142–45 (2000) (discussing how employee
monitoring and its particular use in the workplace can affect whether employees feel they are
being treated fairly, which may affect job satisfaction).

23Although the terms “monitoring” and “surveillance” are used in the literature somewhat
interchangeably, we use “monitoring” to refer to the automated, computerized collection of
information. In contrast, we use “surveillance” to focus on the human review of activities or
collected data. Monitoring of electronic communication is routine in the workplace, while
surveillance is not. Surveillance is usually triggered by the employer’s suspicion of employee
misconduct. See Corey A. Ciocchetti, The Eavesdropping Employer: A Twenty-First Century Frame-
work for Employee Monitoring, 48 AM. BUS. L.J. 285, 301 (2011); Avner Levin, Big and Little
Brother: The Potential Erosion of Workplace Privacy in Canada, 22 CAN. J.L. & SOC. 197, 197–98
(2007). See generally Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 487–90

2012 / Social Media Privacy and the Twenty-First-Century Employee 69

reasons to surveil employees’ and applicants’ online activities. Aside from
monitoring for productivity, security, and performance, firms have a
vested interest in learning about their present and future employees’
moral constitution and personality traits that may affect on-the-job
duties.24 Failure to uncover an obvious flaw in an employee’s background
or character could lead to negligent hiring25 and negligent retention26

lawsuits or malpractice claims having serious business repercussions.27

Employers must also control employee behavior on company computers,
as legal liability may result from employee wrongdoing. In one case, an
employer faced liability for failing to act against an employee who used a
company computer to post nude photographs of his daughter.28 Finally,
employers must protect their reputational interests, intellectual property,
and trade secrets. Given the ease and low cost of widespread information

(2006) (discussing the harm resulting from those in a position of power collecting private or
personal data through the use of monitoring); AM. MGMT. ASS’N, 2007 ELECTRONIC MONITORING
& SURVEILLANCE SURVEY 4 (2008), http://www.plattgroupllc.com/jun08/2007Electronic
MonitoringSurveillanceSurvey (surveying employer monitoring practices in various areas
such as the Internet, e-mail, and computer usage).

24See Terry Morehead Dworkin, Protecting Private Employees from Enhanced Monitoring: Legis-
lative Approaches, 28 AM. BUS. L.J. 59, 75 (1990); Don Mayer, Workplace Privacy and the Fourth
Amendment: An End to Reasonable Expectations?, 29 AM. BUS. L.J. 625, 626 (1991).

25LEX K. LARSON, 1 EMPLOYMENT SCREENING § 10-2.3 (2006) (defining negligent hiring). Neg-
ligent hiring is a tort claim recognized in more than half of the states in the United States.
Timothy L. Creed, Negligent Hiring and Criminal Rehabilitation: Employing Ex-Convicts, Yet
Avoiding Liability, 20 ST. THOMAS L. REV. 183, 184 (2008). In jurisdictions where the tort exists,
an employer can be held liable for the harm its employee causes a third party if the employer
knew or should have known of the employee’s potential risk or if reasonable investigation
would have uncovered such a risk. Id. at 184–85.

26Creed, supra note 25, at 187. Negligent retention theories of liability involve an employer’s
duty to exercise reasonable care in the continued retention of an employee. The tort was the
basis of liability for employers of priests accused of pedophilia and football players accused of
crimes. See Joel Michael Ugolini, Even a Violent Game Has Its Limits: A Look at the NFL’s
Responsibility for the Behavior of Its Players, 39 U. TOL. L. REV. 41 (2007); Kelly H. Sheridan,
Note, Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims
Against Religious Organizations, 85 WASH. L. REV. 517 (2010).

27Employers can also be held liable for the torts of their employees under the legal doctrine
of respondeat superior. See, e.g., Micah Echols, Striking a Balance Between Employer Business
Interest and Employee Privacy: Using Respondeat Superior to Justify the Monitoring of Web-Based,
Personal Electronic Mail Accounts of Employees in the Workplace, 7 COMPUTER L. REV. & TECH. J.
273, 294 (2003).

28Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. 2005).

70 Vol. 49 / American Business Law Journal

dissemination online, digital communication can be a powerful tool for
disgruntled employees seeking to harm their employers by divulging intel-
lectual assets or tarnishing their employers’ names or products.29

This part identifies three pressing legal issues regarding social media
within the employment context: (1) employer monitoring and surveillance
of employee speech in social media profiles, (2) employer evaluation of the
online speech of applicants in making hiring decisions, and (3) employer-
imposed limitations on employees’ off-duty social networking activities.

A. Monitoring and Surveillance of Employee Social Media Profiles

Most of the academic literature on the privacy of electronic communica-
tion in the workplace focuses on e-mail.30 The explosive increase in par-
ticipation on social media sites warrants an analysis of the applicability of
the current law. The Fourth Amendment, privacy torts, and statutes such
as the Electronic Communications Privacy Act of 1986 (ECPA) address
workplace privacy in this context. Their applicability to the monitoring
and surveillance of employee social media profiles and other online activi-
ties is discussed in turn below.

1. The Reasonable Expectations of Privacy Analysis

U.S. law emphasizes that the workplace and its resources are the property
of the employer. The employer is generally free to dictate permissible use
of company property as the employer sees fit. Workplace privacy is not an
employee right, but a restriction placed upon the employer’s property
rights. This restriction may arise constitutionally, legislatively, or in tort

29The American Management Association found that, of the twenty-eight percent of surveyed
employers who reported terminating an employee for e-mail misuse, twenty-two percent of
those violations involved a breach of confidentiality. See AM. MGMT. ASS’N, supra note 23, at 8–9.

30See, e.g., Bradley J. Alge, Effects of Computer Surveillance on Perceptions of Privacy and Procedural
Justice, 86 J. APPLIED PSYCHOL. 61 (2001); Ciocchetti, supra note 15; Barry A. Friedman & Lisa
J. Reed, Workplace Privacy: Employee Relations and Legal Implications of Monitoring Employee
E-mail Use, 19 EMP. RESP. & RTS. J. 75 (2007); Joan T. A. Gabel & Nancy R. Mansfield, The
Information Revolution and Its Impact on the Employment Relationship: Analysis of the Cyberspace
Workplace, 40 AM. BUS. L.J. 301 (2003); Jennifer L. Paschal et al., Effects of Electronic Mail
Policies on Invasiveness and Fairness, 24 J. MANAGERIAL PSYCHOL. 502 (2009); Janice C. Sipior &
Burke T. Ward, The Ethical and Legal Quandary of Email Privacy, 38 COMM. ACM, Dec. 1995, at
48.

2012 / Social Media Privacy and the Twenty-First-Century Employee 71

law, but in its essence it must be “reasonable” and not unduly erode the
employer’s property rights.31 Accordingly, the inquiry into whether the
employee had a reasonable expectation of privacy in the intruded space is
at the core of the law governing workplace privacy. Because the expecta-
tions lack an independent normative basis, the evaluation of the reason-
ableness of privacy expectations can be a chicken-and-egg analysis in which
normative behavior informs the law and the law, in turn, influences nor-
mative behavior. Furthermore, from a legal perspective, reasonable expec-
tations of privacy are formed in a two-step process.32 First, the claimant
must have a subjective expectation of privacy. Second, there must also be
an objective expectation of privacy that society accepts and legitimizes.
Most employee arguments for privacy are foiled in step one by such
instruments as employer communications and policies, but remain
grounded in a widespread, societal norm the legal analysis hardly ever
reaches.

For example, courts have generally held that employees do not have
a reasonable expectation of privacy in the workplace, especially if using
hardware provided by the employer33 or if the employer has communi-

31See infra notes 32–65 and accompanying discussion of reasonable expectations of privacy.
Other jurisdictions, most notably the member states of the European Union, understand
workplace privacy differently. In these jurisdictions, employees have a right to dignity and to
a private life that does not stop at the boundary of the workplace. While this right is not
absolute and must be balanced with the employer’s property rights, it does contain an
inalienable core that protects the dignity of the employee as a human being. See generally
James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J.
1151 (2004) (discussing these different approaches to understanding privacy).

32Katz v. United States, 389 U.S. 347, 360–61 (1967); see also Mayer, supra note 24, at 630–32.
In the context of private employers, the analysis is the same. See, e.g., Smyth v. Pillsbury Co.,
914 F. Supp. 97, 101 (E.D. Pa. 1996) (finding that there is no “reasonable expectation of
privacy in e-mail communications voluntarily made by an employee to his supervisor over the
company e-mail system”); Dir. of Office of Thrift Supervision v. Ernst & Young, 795 F. Supp.
7, 10 (D.D.C. 1992) (applying the O’Connor standard to the question of employee privacy in
diaries containing personal and company data). In O’Connor v. Ortega, 480 U.S. 709, 726
(1987), the Supreme Court held that an employee’s reasonable expectation of privacy in the
workplace should be judged under all the circumstances and must be reasonable both in
inception and scope.

33See, e.g., Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996); Smyth, 914 F. Supp. 97;
Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App. July 26, 1993) (unreported
decision); McLaren v. Microsoft, No. 05-97-00824-CV, 1999 Tex. App. LEXIS 4103, at *12
(Tex. App. May 28, 1999); Jay P. Kesan, Cyber-Working or Cyber-Shirking?: A First Principles
Examination of Electronic Privacy in the Workplace, 54 FLA. L. REV. 289, 303 (2002).

72 Vol. 49 / American Business Law Journal

cated to employees that they may be monitored (by written policy or
otherwise).34 The Supreme Court has also recognized that employers have
a legitimate interest in monitoring their employees, especially for reason-
able work-related reasons.35 As a result of this legal validation, employee
monitoring and surveillance has become a common practice.36

Despite the fact that organizations generally have a legal right to
access and monitor employees’ e-mail and online activities and that
employees generally accept monitoring practices, employees still cling to
certain expectations of privacy in the workplace.37 Studies show that
employees generally believe that it is illegal and unethical for employers to
intrude into certain areas of their lives.38 The manner in which reasonable
expectations of privacy are legally constructed, both for constitutional and
private law purposes, and the observable expectations of employees are
thus disconnected.39 For this reason, the debate over expectations of
privacy in the workplace endures and is apparent in privacy jurispru-
dence, specifically relating to the Fourth Amendment and the privacy
torts.

34See, e.g., Muick v. Glenayre Elec., 280 F.3d 741, 743 (7th Cir. 2002) (finding no reasonable
expectation of privacy in workplace computer files when the employer expressly reserved the
right to inspect the computer); Thygeson v. U.S. Bancorp, No. CV-03-467, 2004 WL
2066746, at *20 (D. Or. Sept. 15, 2004) (finding no reasonable expectation of privacy in
computer files and e-mail when the employee handbook explicitly warned of the employer’s
right to monitor files and e-mail); Kelleher v. City of Reading, No. Civ. A. 01-3386, 2002 WL
1067442, at *8 (E.D. Pa. May 29, 2002) (finding no reasonable expectation of privacy in
workplace e-mail when the employer’s guidelines “explicitly informed employees that there
was no such expectation of privacy”).

35O’Connor, 480 U.S. at 712.

36The American Management Association has reported that sixty-six percent of the largest
U.S. companies monitor Internet connections. The Latest on Workplace Monitoring and Surveil-
lance, AM. MGMT. ASS’N (Mar. 13, 2008), http://www.amanet.org/training/articles/The-Latest-
on-Workplace-Monitoring-and-Surveillance.aspx.

37See Jason L. Snyder, E-mail Privacy in the Workplace: A Boundary Regulation Perspective, 47 J.
BUS. COMM. 266, 268 (2010) (citing Gary Gumpert & Susan J. Drucker, The Demise of Privacy
in a Private World: From Front Porches to Chat Rooms, 8 COMM. THEORY 408 (1998)).

38See, e.g., Stanton, supra note 22, at 130 (discussing studies addressing employees’ reactions
to workplace monitoring).

39For more on the historical connection between the constitutional test as it was first set out
in Katz v. United States, 389 U.S. 347 (1967), and tort law, see Mayer, supra note 24, at 632–37;
Peter Winn, Katz and the Origins of the “Reasonable Expectation of Privacy” Test, 40 MCGEORGE L.
REV. 1 (2009).

2012 / Social Media Privacy and the Twenty-First-Century Employee 73

The Fourth Amendment—via the Fourteenth Amendment40—grants
individuals in the United States, including federal and state government
employees, the right to “be secure in their persons, houses, papers, and
effects” and protects them against “unreasonable searches and seizures.”41

Although the Fourth Amendment does not govern private-sector
employers, judicial interpretation of the reasonableness of privacy expec-
tations in the constitutional context validates new kinds of privacy interests
and serves as a guide to judges and employers in the private sector.42 As
such, Fourth Amendment analyses of privacy inform privacy tort law, an
area equally dependent upon the reasonableness of the plaintiff’s desire
for privacy.

Assessments of privacy expectations have traditionally hinged upon
territorial and context-driven factors. In O’Connor v. Ortega, the leading
Fourth Amendment employee privacy case, the U.S. Supreme Court con-
cluded that a state hospital did not violate an employee’s Fourth Amend-
ment right to privacy when it searched his office drawers and cabinets as
part of an inquiry into sexual harassment allegations against him.43 The
analysis, the Court reasoned, must first take into account whether the
employee had a reasonable expectation of privacy in the invaded space
given the “operational realities of the workplace.”44 Courts evaluating
privacy claims in light of O’Connor have held that employees maintain a
reasonable expectation of privacy in breakrooms,45 restrooms,46 and other

40Mapp v. Ohio, 367 U.S. 643, 654 (1961).

41U.S. CONST. amend. IV; see also O’Connor v. Ortega, 480 U.S. 709, 737 (1987) (stating that
“individuals do not lose Fourth Amendment rights merely because they work for the
government”).

42Kevin J. Conlon, Privacy in the Workplace, 72 CHI.-KENT L. REV. 285, 289–91 (1996); Mayer,
supra note 24, at 629.

43480 U.S. at 713.

44Id. at 717.

45State v. Bonnell, 856 P.2d 1265, 1279 (Haw. 1993) (holding that the defendants had a
reasonable expectation of privacy in their break room because access to the room was limited
to employees).

46Cf. Cramer v. Consol. Freightways, Inc., 209 F.3d 1122, 1131 (9th Cir. 2000) (holding that
an employment contract that arguably allowed video surveillance of the employee bathroom
could not supersede the mandatory provisions in state privacy laws), rev’d en banc, 255 F.3d
683 (9th Cir. 2001) (reversed in part on other grounds concerning the collective bargaining
agreement in place). On review, the en banc Ninth Circuit found that the invasion of privacy

74 Vol. 49 / American Business Law Journal

spaces normatively branded as private.47 The analysis must also consider
whether the purpose and scope of the employer’s search was reasonable.48

Searches conducted for “noninvestigatory, work-related purposes” and
“investigations of work-related misconduct” are permissible exceptions to
an employee’s right to privacy so long as they are reasonable in light of the
surrounding circumstances.49

Since O’Connor, the analysis into expectations of privacy in the work-
place has become considerably dislodged from its spatial roots. In City of
Ontario v. Quon, the Supreme Court revisited O’Connor in the context-
challenged world of digital technology.50 The case asked whether a police
officer had a reasonable expectation of privacy in the personal text mes-
sages sent and received on his employer-provided pager.51 Officer Jeff
Quon claimed his Fourth Amendment right to privacy had been violated
when his employer, the City of Ontario Police Department (OPD),
requested an administrative review of his text messages for purposes of
determining whether to upgrade its messaging plan.52 Upon review, the
OPD discovered that the preponderance of text messages sent by Quon
were of a personal nature.53 The review also revealed that Quon had sent
sexually explicit text messages to a fellow OPD employee with whom he

claims were independent of the terms of the collective bargaining agreement and not pre-
empted by the Labor Management Relations Act, 255 F.3d at 694; that any provision in the
collective bargaining agreement that purported to authorize the use of two-way mirrors was
illegal under state statute, id. at 695; and that such provision would thus be illegal and void.
id.

47See Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001) (finding an employee had a
reasonable expectation of privacy in the contents of his computer where the employee
occupied a private office with a door, had exclusive use of the computer in his office, and did
not share his computer with other employees or the public, notwithstanding the employer’s
policy prohibiting use of work equipment for personal purposes).

48O’Connor, 480 U.S. at 722–25.

49Id. at 725–26.

50130 S. Ct. 2619, 2625 (2010).

51Id. at 2632–33.

52Id. at 2626.

53Id. For example, of the 456 text messages Quon sent or received in the month of August
2002, no more than fifty-seven were work related. On an average business day, Quon sent or
received twenty-eight text messages, only about three of which were work related. Id.

2012 / Social Media Privacy and the Twenty-First-Century Employee 75

was romantically involved, and his then-wife.54 Consequently, the OPD
disciplined Quon for abuse of its policies.55

The Supreme Court held that the OPD did not violate Quon’s Fourth
Amendment right to privacy because the employer had a legitimate work-
related purpose for conducting the search. The Court declined to decide
whether Quon had a reasonable expectation of privacy in his text messages
because it determined that the search was reasonable both in scope and
purpose.56 In reference to scope, the Court gave great weight to the fact
that the OPD limited its search of Quon’s text messages to those sent and
received while he was on duty.57 As to purpose, the Court found that the
OPD’s stated purpose for the search—to determine whether the current
text-messaging service plan needed to be upgraded—was a “legitimate
work-related rationale.”58

A clear analogy can be drawn from text messaging on an employer-
provided pager or telephone to the practice of communicating through
social media sites on company computers. Both practices make use of
employer hardware and systems for the social and personal purposes of
the employee. In Quon, the Supreme Court displayed a surprising ambiva-
lence regarding privacy on boundary-crossing technologies. On the one
hand, the Court noted that the pervasiveness of the technology was sug-
gestive of its essential role “for self-expression, even self-identification,”
which it reasoned “might strengthen the case for an expectation of pri-
vacy.”59 On the other hand, the technology’s ubiquity suggested that it “is
generally affordable, so . . . employees who need cell phones or similar
devices for personal matters can purchase and pay for their own.”60 Ulti-
mately, the Court refused to elaborate on privacy expectations on an

54Id. at 2626.

55Id. at 2626–27. The officers were instructed that messages sent and received from their
issued devices would be treated as e-mails under the City’s Computer Policy, which stated that
the City “reserve[d] the right to monitor and log all network activity . . . with or without
notice.” Id. at 2625.

56Id. at 2630.

57Id. at 2631–32.

58Id. at 2632–33.

59Id. at 2630.

60Id.

76 Vol. 49 / American Business Law Journal

“emerging technology before its role in society has become clear,”61 claim-
ing that “[p]rudence counsels caution before the facts in the instant case
are used to establish far-reaching premises that define the existence, and
extent, of privacy expectations enjoyed by employees when using
employer-provided communication devices.”62

Although the Supreme Court sidestepped analyzing the reasonable-
ness of Quon’s privacy expectations, it opined in dicta that the employee’s
expectation of privacy should have been limited. A reasonable employee,
according to the Court, “would be aware that sound management prin-
ciples might require the audit of messages to determine whether the pager
was being appropriately used.”63 The Court also noted that “employer
policies concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such policies
are clearly communicated.”64 This holding is consistent with previous
lower court rulings.65

While shedding some light on employees’ reasonable privacy expec-
tations, current Fourth Amendment jurisprudence fails to define the rea-
sonableness of those expectations as to modern technology and social
media. Some foreign courts have displayed a more direct approach. For
example, France’s Supreme Court has long been famous for its protective
stance toward employee privacy. In Société Nikon France, S.A. v. M. Onof, it

61Id. at 2629.

62Id.

63Id. at 2631.

64Id. at 2630.

65Courts customarily look at all of the circumstances surrounding the alleged consent to
company monitoring policies in assessing whether the employee has a reasonable expectation
of privacy. See Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1078 (Cal. 2009) (holding that the
plaintiffs had a reasonable expectation of not being videotaped in their offices, despite
company policy indicating the employees had no reasonable expectation of privacy in their
communications, because such policy never alluded to the possibility of video recording);
Bourke v. Nissan Motor Corp., No. YC-003979 (Cal. Ct. App. July 26, 1993) (unreported
decision), available at http://www.loundy.com/CASES/Bourke_v_Nissan.html (last visited Oct.
9, 2011) (holding that employees forfeit reasonable expectations of privacy on work com-
puters by agreeing to the employer’s policies providing that use of its computers was for
business purposes only); Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (holding
that, despite an employer’s failure to notify its employee that his communications were
being monitored, the employer’s “interest in preventing inappropriate and unprofessional
comments or even illegal activity over its e-mail system outweigh[ed] any privacy interest
the employee may have [had]”).

2012 / Social Media Privacy and the Twenty-First-Century Employee 77

held that employees have a robust right to privacy in their communications
on work computers.66 In that case, an employer was prohibited from
terminating an employee based on evidence obtained from e-mails written
by the employee on a work computer while at work.67 Recently, in another
case, La Société Seit Hydr’Eau v. M. J-M, the labor chamber of France’s
highest court found that employees had an expectation of privacy in
electronic folders that had been marked “personal” on work computers.68

It construed the expectation narrowly to conclude that an electronic folder
marked with the employee’s initials was not private.69

In Canada, courts have been walking a middle ground between the
United States and the European Union (EU).70 In R. v. Cole, a high school
teacher was accused of storing nude images of a sixteen-year-old student
on the laptop that the school board provided to him. He argued that he
had a reasonable expectation of privacy in the laptop.71 Cole was criminally
prosecuted after a board technician discovered the offending images and
other pornographic images on the laptop during a routine service of the
school’s information network.72 Cole argued that the board and the police
searched the laptop in violation of his rights under Section 8 of the
Canadian Charter of Rights and Freedoms.73 The Canadian court con-
cluded the teacher had a subjective expectation of privacy in the laptop,

66Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Oct. 2, 2001, No. 4164
(Fr.), available at http://www.courdecassation.fr/jurisprudena_2/chamber_sociale_576/arret_
no_1159.html.

67Id.

68Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Oct. 21, 2009, No. 2044
(Fr.), available at http://www.courdecassation.fr/publications_cour_26/arrets_publies_2986/
chambre_sociale_3168/2009_3332/octobre_2009_3246/2044_21_13949.html.

69Id.

70See Avner Levin & Mary Jo Nicholson, Privacy Law in the United States, the EU and Canada: The
Allure of the Middle Ground, 2 U. OTTAWA L. & TECH. J. 357 (2005) (describing Canada’s
middle-ground position on privacy matters).

71[2011] 105 O.R. 3d 253 (Can. Ont. C.A.), available at http://www.ontariocourts.on.ca/
decisions/2011/2011ONCA0218.htm.

72Id. at para. 12.

73Id. at para. 3. Section 8 is roughly equivalent to the Fourth Amendment, stating, “Everyone
has the right to be secure against unreasonable search or seizure.” Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act § 8, 1982, available at http://
laws.justice.gc.ca/eng/charter/page-1.html.

78 Vol. 49 / American Business Law Journal

and absent a clear privacy policy or acceptable use policy or both, this
expectation was reasonable. In particular, the court stated that

based upon the totality of the circumstances in this case . . . the appellant had
a reasonable expectation of privacy in the personal use of his work laptop. . . .
The teachers used their computers for personal use, they employed passwords
to exclude others from their laptops, and they stored personal information on
their hard drives. There was no clear and unambiguous policy to monitor,
search or police the teachers’ use of their laptops.74

The Canadian court, however, found that Cole “knew that a school
technician had a limited right of access to the hard drive as part of his
duties to maintain the stability and security of the network system,”75 and
so concluded that Cole’s reasonable expectation of privacy did not apply to
the actions of the technician.76 Accordingly, once the technician had
stumbled upon the images, the technician’s and school board’s actions did
not violate the Canadian Charter.77

Cole is notable for linking expectation of privacy to organizational
norms and highlighting the important role that policies play in setting
privacy expectations. Other Canadian cases have held that policies in
collective bargaining agreements may also inform expectations of privacy
in personal data.78

These cases indicate the Canadian and American courts’ reluctance
to recognize a strong workplace privacy right and their willingness to defer
to employer policies and agreements as setting reasonable workplace and
e-mail privacy expectations. At the same time, it is clear from these
holdings that workplace policies are not entirely responsible for setting
expectations of privacy. The French court’s Seit Hydr’Eau decision demon-
strates that it is possible to protect employer interests notwithstanding
strong workplace privacy rights.79 The Canadian and American courts’

74Cole, 105 O.R. 3d 253, para. 45.

75Id. at para. 47.

76Id. at para. 48.

77Id. at paras. 63, 66.

78See, e.g., France v. Tfaily, [2009] 98 O.R. 3d 161 (Can. Ont. C.A.) (finding that a collective
bargaining agreement between a university and a faculty association granted a professor an
objectively reasonable expectation of privacy in relation to his personal electronic data on
university computers).

79See supra notes 68–69 and accompanying text.

2012 / Social Media Privacy and the Twenty-First-Century Employee 79

unwillingness to render broader holdings has left employees and employ-
ers without a clear answer about which surveillance and monitoring prac-
tices violate an employee’s reasonable expectation of privacy.80

2. The ECPA

The ECPA protects the private transmission and storage of electronic
data.81 Title I of the ECPA, known as the Wiretap Act, prohibits the
interception, use, or disclosure of any electronic communication while in
transit.82 The significant exceptions to the Wiretap Act limit its applicability
to employer monitoring and surveillance of employee social networking
activities. First, the Wiretap Act does not apply to communications made
through an electronic communication system that is readily accessible to
the general public.83 It appears, then, that if an employee makes her digital
information accessible to the general public, her employer is not pro-
hibited from monitoring, viewing, or intercepting such communication.
This is true whether or not she was at work when the communication was
made. Second, the Wiretap Act provides an exception for providers of the
communication service who intercept, use, or disclose the communication
in the ordinary course of business and when engaged in an activity inciden-
tal to the provision of such communication service.84 As such, organizations
providing mobile telecommunications service or Internet access to their
employees for work-related purposes may access all employee communi-
cation transmitted thereby. Third, the Wiretap Act permits interception of
a communication when one of the parties to the communication expressly
or impliedly consents to it.85 Individuals often expressly consent by accept-
ing a written electronic communications policy or contract clause and

80It also has been argued that, with every U.S. Supreme Court case defining the reasonable-
ness of an individual’s expectation of privacy under the Fourth Amendment, the Court has
become more vague and continued to narrow its holding in Katz v. United States, 389 U.S. 347
(1967). See Mayer, supra note 24, at 656–58.

81Pub. L. No. 99–508, Title I, 100 Stat. 1851, 1859 (codified at 18 U.S.C. §§ 2510–22 (2006));
Title II, 100 Stat. 1860 (codified at 18 U.S.C. §§ 2701–11 (2006)); Title III, 100 Stat. 1868
(codified at 18 U.S.C. §§ 3121–27 (2006)).

8218 U.S.C. § 2511(1).

83Id. § 2511(2)(g)(i).

84Id. § 2511(2)(a)(i).

85Id. § 2511(2)(c) & (d).

80 Vol. 49 / American Business Law Journal

acknowledgment of monitoring by way of a login prompt or corporate
policy are common ways of obtaining express consent. Courts infer
consent from the conduct of workers who continue employment after
having been notified that their communications are subject to surveillance
and monitoring.86 Finally, employees seem to have a claim under the
Wiretap Act only if their communications are intercepted while in transit,
rather than in storage.87

Title II of the ECPA, known as the Stored Communications Act
(SCA), may offer more redress for the employee whose personal online
information is accessed by an employer in an unsanctioned manner. The
SCA forbids the intentional and unauthorized access of stored communi-
cations.88 The SCA provides broader exceptions than the Wiretap Act
because it excludes from liability those who have been authorized access by
the entity providing the electronic communication service, a user of that
service who is the intended recipient of the communication, or the author
of the communication.89

Recently, courts have interpreted the meaning of “authorized access”
to social media profiles in light of the employment relationship. In Pietrylo
v. Hillstone Restaurant Group, two restaurant employees were terminated
after their manager discovered their password-protected MySpace group,
which contained personal information, also referenced illegal drug use,
violence, and sexual remarks about the restaurant’s management and
customers.90 Employee Brian Pietrylo had created the private online

86See Matthew Finkin, Information Technology and Workplace Privacy: The United States Law, 23
COMP. LAB. L. & POL’Y J. 471 (2002) (discussing the ECPA and U.S. workplace privacy in
general); Sylvia Kierkegaard, Privacy in Electronic Communication Watch Your E-mail: Your Boss Is
Snooping, 21 COMPUTER L. & SEC. REP. 226 (2005).

87See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003) (holding that an
employer accessing an employee’s e-mail did not violate the Wiretap Act because the com-
munication was in storage rather than in transit); Konop v. Hawaiian Airlines, Inc., 302 F.3d
868, 878 (9th Cir. 2002) (holding that an employer that accessed its employee’s personal,
password-protected Web site did not violate the Wiretap Act because the electronic commu-
nication was accessed when in storage, rather than when in transmission).

8818 U.S.C. § 2701(a).

89Id. § 2701(c).

90No. 06-5754-FSH, 2008 WL 6085437, at *1-2 (D.N.J. July 25, 2008); see also Dionne Searcey,
Employers Watching Workers Online Spurs Privacy Debate, WALL ST. J., Apr. 23, 2009, at A13.

2012 / Social Media Privacy and the Twenty-First-Century Employee 81

forum to vent about work-related topics.91 One of the online group
members, a hostess at the restaurant, showed the site to a restaurant
manager.92 Another restaurant manager later requested the hostess
divulge her MySpace login information and password to management so it
could access Pietrylo’s private group and review the postings.93 The hostess
testified that she gave the password to the manager for fear of retaliation.94

Based on the content of the online postings, management terminated
Pietrylo and another employee.95 The employees filed suit, claiming the
employer violated the SCA, wrongfully terminated them in violation of a
clear mandate of public policy, and invaded their privacy.96 The jury found
that, because the employee who provided access to the private online
forum did not act voluntarily, employer Hillstone had “knowingly or
intentionally or purposefully accessed the [private MySpace group] . . .
without authorization,”97 in violation of the SCA, and awarded the plaintiff
employees compensatory and punitive damages.98 Regarding the privacy
claim, the jury found that, even though Pietrylo created the private
MySpace group as “a place of solitude and seclusion which was designed to
protect the Plaintiff’s private affairs and concerns,”99 he did not have a
reasonable expectation of privacy in the postings made on the group.100

91Pietrylo, 2008 WL 6085437, at *1.

92Id.

93Id.

94Id. at *4.

95Id. at *2.

96Id.

97Pietrylo v. Hillstone Rest. Grp., No. 06-5754 (FSH), 2009 WL 3128420, at *1 (D.N.J. Sept.
25, 2009).

98Id.

99Verdict and Settlement Agreement, Pietrylo v. Hillstone Rest. Grp., No. 2:06-cv-05754-
FSH-PS (D.N.J. June 26, 2009) 2009 WL 2342553.

100Id. Pietrylo is consistent with the manner in which expectations of privacy on social networks
have been analyzed in Canada. For example, in a recent labor arbitration decision on the
dismissal of a unionized employee of a car dealer, the arbitrator found that the employee had
no reasonable expectation of privacy in his Facebook postings because he had one hundred
Facebook friends. Lougheed Imports, Ltd. v. United Food & Commercial Workers Int’l
Union, Local 1518, [2010] CanLII 62482, para. 97 (Can. B.C.L.R.B.), available at http://www.
canlii.org/en/bc/bclrb/doc/2010/2010canlii62482/2010canlii62482.html. Similar to Pietrylo, the

82 Vol. 49 / American Business Law Journal

Pietrylo stands for the proposition that an employer cannot lawfully obtain
access to stored information on an employee’s social media profile by
coercion. It remains clear that employers are free to access such informa-
tion and to act upon it,101 if granted access to the online forum voluntarily
or if the online information is readily accessible to the public at large.

The court’s application of the SCA in Pietrylo is consistent with pre-
vious cases in which employers surreptitiously accessed the personal e-mail
accounts of their employees. In Pure Power Boot Camp v. Warrior Fitness Boot
Camp, a New York district court found that an employer’s unauthorized
access to a former employee’s personal Internet-based e-mail accounts was
a violation of the SCA, despite the existence of a company policy, which
stated that “e-mail users have no right of personal privacy in any matter
stored in, created on, received from, or sent through or over the sys-
tem.”102 Former employee Alexander Fell admitted he accessed his per-
sonal Gmail and Hotmail accounts on his work computer, but denied
drafting or receiving e-mails at work.103 Fell’s employer reportedly
obtained access to Fell’s personal Internet e-mail accounts because some of
the usernames and passwords to those accounts were stored on the
company computer. The employer gained access to another one of Fell’s
personal Internet e-mail accounts by correctly guessing that the password
was the same as the one used in his other two e-mail accounts.104 While the
court predictably found that the Wiretap Act did not apply because com-
munications were not in transit,105 it determined that the employer vio-
lated the SCA because the employee’s personal Internet e-mails,
administered through Google and Microsoft, were not stored on the
company system, per the company policy’s narrow scope.106

employer did not have direct access to the employee’s Facebook page, but was granted access
by an ex-employee. Id. at para. 22.

101See infra notes 152–62 and accompanying text (discussing whether employees’ off-duty
online speech is concerted activity under Section 7 of the National Labor Relations Act).

102587 F. Supp. 2d 548, 552 (S.D.N.Y. 2008).

103Id. at 553.

104Id. at 556.

105Id. at 557–58.

106Id. at 559.

2012 / Social Media Privacy and the Twenty-First-Century Employee 83

The employer had also argued that the one-sentence company e-mail
policy, advising employees that they had no right of personal privacy,107

eviscerated any reasonable expectation of privacy that Fell might claim in
his personal e-mail accounts and that leaving a username and password
accessibly recorded on an employer-provided computer constituted
implied consent to employer access to personal e-mail accounts.108 The
court concluded that this argument had “no support in the law” and
proceeded to determine that the employee did indeed have a reasonable
expectation of privacy in the passwords and usernames stored on company
computers.109 It analogized the situation to an employee leaving his house
key on his work desk, reasoning that under no circumstance would the law
interpret a mislaid house key as “consent to whoever found the key, to use
it to enter his house and rummage through his belongings.”110 The court
refused to accept that “carelessness equals consent” in the realm of pri-
vacy.111 The court further found that spotty enforcement of the company
e-mail policy reinforced the employee’s reasonable expectation of privacy
in his personal e-mail accounts while at work.112

With only a minor stretch of the imagination, Pure Power Boot Camp
suggests that employees who access their Facebook profiles on the job and
store their online social network (OSN) usernames and passwords on
workplace computers may be protected by the SCA from unauthorized
employer intrusion into their Internet profiles and accounts. The decision
is also a warning for employers. Employee Internet and social media use
policies must be explicit about what information is accessible to the
employer and where it is located. The existence of an explicit policy is not
always dispositive to a finding of a reasonable expectation of employee
privacy.

While the SCA was not drafted with the intention of securing
employee e-mail and Internet privacy, it seems to be in the process of

107Id. at 553.

108Id. at 559.

109Id.

110Id. at 561.

111Id.

112Id. The policy was not enforced in a consistent manner “that would have alerted employees
to the possibility that their private email accounts, such as Hotmail, could also be accessed and
viewed by their employer.” Id.

84 Vol. 49 / American Business Law Journal

experiencing a resurgence for that purpose. This is consistent with devel-
oping approaches to employee Internet privacy internationally. As men-
tioned above, the French Supreme Court has held that employers cannot
access employee communications that are clearly marked as “personal”
without employee permission.113

In Israel, a recent National Labor Court decision similarly restricted
employer access to employee e-mail and offered an innovative analysis
based on the character of the e-mail account, not its owner, label, or
location.114 The scenario was a familiar one—the employer wished to use
an employee’s e-mails as evidence to support a termination decision, and
the employee argued that the e-mails were private.115 After reminding
employers of the need to have clearly communicated policies as a precon-
dition for any employer action, the Israeli Labor Court drew a distinction
between private Internet-based e-mail accounts, which employees may
access at work, and certain types of employer-provided e-mail accounts.116

The court prohibited employers from accessing private Internet-based
e-mail accounts without a court order, even if such accounts were accessed
by the employee at work using employer-provided infrastructure.117 It
then distinguished among three types of workplace or employer-provided
e-mail accounts: (1) those used exclusively for work-related purposes, (2)
those used exclusively for personal purposes, and (3) those used by the
employee for both work-related and personal purposes.118 According to
the court, employers may regularly monitor “exclusively-work-related”
accounts, but may not access the content of personal e-mails sent from such
accounts unless the employee freely consents.119 This rule applies even if

113See supra notes 68–69 and accompanying text.

114File No. 90/08 National Labor Court, Tali Isakov Inbar v. Commissioner for Women Labor
(Feb. 8, 2011), available at http://elyon1.court.gov.il/heb/dover/3082302 [in Hebrew]. For
a case note in English, see Dan Or-Hof, Israel—Monitoring Employees Email Severely Restricted,
PEARL COHEN ZEDEK LATZER (Feb. 10, 2011), http://www.pczlaw.com/news/2011/02/10/israel—
monitoring-employees-email-severely-restricted.

115Tali Isakov Inbar, at para. 3.

116Id. at para. 2.

117The Israeli court explicitly stated that employee consent would be insufficient. Id. at para.
49.

118Id. at para. 2.

119Id. at para. 39.

2012 / Social Media Privacy and the Twenty-First-Century Employee 85

the employee sends personal e-mails on work accounts in violation of
corporate policies. Personal workplace accounts and dual-purpose work-
place accounts are subject to further restrictions: employers must have an
independent valid business reason for monitoring or accessing them, they
must first resort to less-invasive methods, and they must obtain the
employee’s freely given consent.120 While the Israeli decision offers
employees strong protection, it is a default position. Employers are not
obligated to offer employees personal e-mail accounts, and employers and
employees may enter into collective agreements to regulate workplace
privacy and the use of technology at work, which would supplant the
Israeli Labor Court’s default position.121

B. Employer Evaluation of Online Speech and Virtual Identity of Applicants

Organizations are increasingly monitoring social media for information
that may provide insight on prospective hires.122 One study recently found
that forty-five percent of surveyed employers researched job candidates
using online social networking sites.123 More than a third of employers in
that survey also reported having found publicly available content on appli-
cants’ social media profiles that caused them not to hire the applicants.124

Objectionable content included inappropriate photographs or informa-
tion, evidence of alcohol or drug use, and information revealing that the

120Id. at para. 41.

121Id. at para. 5. Employment in Israel is governed by collective agreements to a greater
extent than in the United States because legislation enables the Ministry of Labor to apply
such agreements to nonunionized workplaces as well. See Collective Agreements Law, 5717–
1957 §§ 25-33G (Isr.), available at http://www.tamas.gov.il/NR/rdonlyres/DF31497A-297C-
431A-8C63-7DB7CD653C1F/0/3 .

122See Diane Coutu, We Googled You, HARV. BUS. REV., June 2007, at 37, 44 (providing
comments by chairman and chief executive officer of Manpower, an employment company,
about the pervasiveness of the employee online screening practice); Brian Elzweig & Donna
K. Peoples, Using Social Networking Web Sites in Hiring and Retention Decisions, SAM ADVANCED
MGMT. J., Autumn 2009, at 27, 28.

123Career Experts Provide Advice on Dos and Don’ts for Job Seekers on Social Networking, CAREER-
BUILDERS.COM (Aug. 19, 2009), http://www.careerbuilder.com/share/aboutus/pressreleases
detail.aspx?id=pr519&sd=8/19/2009&ed=12/31/2009&siteid=cbpr&sc_cmp1=cb_pr519_&cb
RecursionCnt=2&cbsid=c6bd4651f8e845f187ba45c9c3152747-316799338-RK-4.
124Id.

86 Vol. 49 / American Business Law Journal

applicant had lied on the job application.125 More information about can-
didates is desirable when that information is bona fide. The danger of
“social media background checks” is that personal information presented
out of context or inaccurately may lead employers to judge candidates
unfairly without their knowledge or without providing an opportunity for
rebuttal. Worse yet, the surreptitious quality of the information search may
be a backdoor to illegal discrimination. This unregulated yet widespread
practice has received some scholarly attention.126

There are two main legal issues surrounding social media back-
ground checks: the propriety of employer access to the candidate’s online
information and the permissibility of basing hiring decisions on the dis-
covered digital information. Of course, employers are permitted to
research candidates’ lives and reputations as documented in their publicly
available, non-password-protected social media profiles. However, access-
ing a candidate’s password-protected social media profile in an unautho-
rized manner (such as surreptitiously or by coercion) violates the SCA.127

These practices could also violate the social network site’s terms of ser-
vice.128 Both Facebook’s and MySpace’s terms of service prohibit using
their networks for commercial purposes or gains without users’ consent.129

A company’s use of a social network to research its prospective hires may
be characterized as a commercial use of the network.130 Social media sites
also generally prohibit accessing a member’s account for the purpose of

125Id. (revealing that fifty-three percent of the employers that reported having found content
that caused them not to hire candidates said they found candidates had posted inappropriate
photographs or information, forty-four percent found evidence of candidates drinking
or using drugs, and twenty-four percent discovered that applicants had lied about their
qualifications).

126See, e.g., Alexander Wohl, After Forty Years of Tinkering With Teachers’ First Amendment Rights,
Time for a New Beginning, 58 AM. U.L. REV. 1285, 1316–17 (2009); Carly Brandenburg, Note,
The Newest Way to Screen Job Applicants: A Social Networker’s Nightmare, 60 FED. COMM. L.J. 597
(2008); Ian Byrnside, Note, Six Clicks of Separation: The Legal Ramifications of Employers Using
Social Networking Sites to Research Applicants, 10 VAND. J. ENT. & TECH. L. 445 (2008).

127See supra notes 90–101 and accompanying text.

128Brandenburg, supra note 126, at 612–13.

129MySpace.com Terms of Use Agreement, MYSPACE.COM, http://www.myspace.com/index.cfm?
fuseaction=misc.terms (last visited Aug. 14, 2011); Statement of Rights and Responsibilities,
FACEBOOK.COM, http://www.facebook.com/terms.php?ref=pf (last visited Aug. 14, 2011).
130Brandenburg, supra note 126, at 613.

2012 / Social Media Privacy and the Twenty-First-Century Employee 87

obtaining information regarding another member or circumventing
privacy settings.131 However, no regulation forces employers to disclose
their information-gathering practices on social networking sites.132 In
analogous contexts, the law suggests that regulating background checks of
social media by prospective employers may be warranted. For example,
the Fair Credit Reporting Act allows prospective employers to obtain a
candidate’s consumer report from consumer reporting agencies provided
they inform the candidate in writing of the request and obtain the candi-
date’s written authorization.133

Employers are currently free to judge candidates on the basis of all
available information, unless prohibited or restricted by law. A candidate’s
recklessness, bad reputation, and unsound moral character are obviously
justifiable reasons for denial of employment. Employers may not, however,
discriminate on other bases. Title VII of the Civil Rights Act of 1964 (Title
VII) covers most private employers with fifteen or more employees and
prohibits discrimination in the workplace “with respect to . . . compensa-
tion, terms, conditions, or privileges of employment, because of [an] indi-
vidual’s race, color, religion, sex, or national origin.”134 Various state
statutes have broadened the scope of hiring and employment discrimina-
tion. New York, for example, bars employers from basing employment
decisions on a candidate’s legal recreational activities, political activities,
union membership, and consumption of legal products provided that the
candidate’s behavior does not conflict with the employer’s genuine busi-
ness interest.135 By covertly obtaining personal candidate information to

131MySpace.com Terms of Use Agreement, MYSPACE.COM, supra note 129; Statement of Rights and
Responsibilities, FACEBOOK.COM, supra note 129.

132See generally Donald Carrington Davis, MySpace Isn’t Your Space: Expanding the Fair Credit
Reporting Act to Ensure Accountability and Fairness in Employer Searches of Online Social Networking
Services, 16 KAN. J.L. & PUB. POL’Y 237 (2007) (discussing the general lack of regulation
requiring employers to disclose the source or process by which they obtained information on
job candidates, which in turn makes them more likely to engage in surreptitious practices).

13315 U.S.C. §§ 1681a–b (2010).

13442 U.S.C. § 2000e-2(a)(1) (2006). While restrictive of some speech, Title VII has been
considered compatible with the First Amendment as it protects the individual’s autonomy of
consciousness promoted through the First Amendment. See O. Lee Reed, A Free Speech
Metavalue for the Next Millennium: Autonomy of Consciousness in First Amendment Theory and
Practice, 35 AM. BUS. L.J. 1, 36–38 (1997).

135N.Y. LAB. LAW § 201-d (Consol. 2011).

88 Vol. 49 / American Business Law Journal

which they would not otherwise be privy, employers may be more likely to
discriminate illegally and less likely to get caught.

C. Employer-Imposed Limitations on Employee Private Life

Conventional wisdom dictates that an employee is a representative of his
or her organization in all areas of life.136 This is especially true when an
employee uses a company logo, wears a company uniform, or purports to
speak for or about the company as an insider. In extreme cases, employers
have dismissed employees whose extracurricular activities could have a
negative impact on their organizations’ reputations.137 Some companies
have contended that employees’ aberrant, off-duty behavior can even
affect the bottom line.138 For these reasons, private employers have often
sought to control the risks of off-duty employee conduct by way of specific
contractual clauses such as morality clauses, confidentiality agreements,
and off-duty codes of conduct.139

136Patricia Sánchez Abril & Ann M. Olazábal, The Celebrity CEO: Corporate Disclosure at the
Intersection of Privacy and Securities Law, 46 HOUS. L. REV. 1545, 1575–76 (2010). As some have
noted, “as employees move up the organizational hierarchy, so does the expectation of
conformity with organizational expectations in one’s private life.” Rafael Gely & Leonard
Bierman, Workplace Blogs and Workers’ Privacy, 66 LA. L. REV. 1079, 1107 (2006).

137See LEVIN ET AL., supra note 14, at 68; Terry Morehead Dworkin, It’s My Life—Leave Me
Alone: Off-the-Job Employee Associational Privacy Rights, 35 AM. BUS. L.J. 47, 47–49 (1997)
(providing examples of companies in the past that made employment decisions based on the
employee’s personal life, if they found aspects of the employee’s personal life to conflict with
the image the company wanted to portray to the public).

138In one case, a low-level supermarket employee was terminated when his supervisors
learned he enjoyed dressing like a woman in private. Oiler v. Winn-Dixie La., Inc., No.
00-3114, 2002 U.S. Dist. LEXIS 17417, at *4–9 (E.D. La. Sept. 16, 2002). Company repre-
sentatives maintained, in their defense, that the employee’s aberrant behavior would cer-
tainly drive away customers in their small town. Id. at *9–10.

139See Brian Van Wyk, Note, We’re Friends, Right? Client List Misappropriation and Online Social
Networking in the Workplace, 11 VAND. J. ENT. & TECH. L. 743, 754–55 (2009) (discussing the
employment of a confidentiality and noncompetition agreement to prevent client misappro-
priation). See generally Terry Morehead Dworkin & Elletta Sangrey Callahan, Buying Silence,
36 AM. BUS. L.J. 151 (1998) (discussing the use of employee secrecy agreements in various
contexts); Marka B. Fleming et al., Morals Clauses for Educators in Secondary and Post-Secondary
Schools: Legal Applications and Constitutional Concerns, 2009 BYU EDUC. & L.J. 67 (2009)
(discussing the inclusion of morals clauses in teachers’ employment agreements); Fernando
M. Pinguelo & Timothy D. Cedrone, Morals? Who Cares About Morals? An Examination of Morals
Clauses in Talent Contracts and What Talent Needs to Know, 19 SETON HALL J. SPORTS & ENT. L. 347

2012 / Social Media Privacy and the Twenty-First-Century Employee 89

The growing use of interactive social media significantly compli-
cates this already elusive line between the private individual and the
company representative. A more public digital existence can threaten the
privacy of both employees and their employers. An amalgamation of all
of the elements and characters in a person’s life, social media profiles
allow for unprecedented transparency of an employee’s private dealings,
which can then be associated with his organization with minimal infer-
ence. A disgruntled employee can easily divulge trade secrets, intellectual
property, or confidential information—or can harm the organization’s
reputation with disparaging commentary. Even a well-intentioned but
reckless employee can tarnish an organization by disseminating
potential evidence of the organization’s negligence, immorality, or
incompetence.

Some organizations have restricted their employees’ off-duty use of
social networking sites or have prohibited using them altogether. For
example, the National Football League has prohibited players’ access to
social media immediately before, during, and after football games.140

College athletic programs also restrict their student athletes’ online par-
ticipation to avoid damaging the reputations of their host universities.141

Employer restrictions on off-duty speech and conduct are troubling in that
they squelch expression and individual autonomy and may compromise
the employee’s right to a private life, especially when restrictions are
unilaterally imposed after employment commences.

The First Amendment offers limited protection against speech
restrictions in the employment context.142 It does not shield private

(2009) (discussing the more traditional use of morals clauses in contractual agreements
involving talent, including endorsement contracts).

140Mark Maske, League Issues New Twitter Policy, WASH. POST: THE LEAGUE (Aug. 31, 2009, 4:53
PM), http://views.washingtonpost.com/theleague/nflnewsfeed/2009/08/league-issues-new-
twitter-policy.html.

141Autumn K. Leslie, Note, Online Social Networks and Restrictions on College Athletes: Student
Censorship? 5 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 19, 20 (2008) (explaining that closer
monitoring and restrictions upon student athletes has traditionally been accepted because the
acts of those athletes could implicate or tarnish the moral character of the school).

142See generally Reed, supra note 134 (arguing for an interpretation of free speech values
in the new millennium more compatible with the human individual’s autonomy of
consciousness).

90 Vol. 49 / American Business Law Journal

employees,143 and rights afforded to public employees are limited to
speech regarding matters of public concern,144 which are balanced against
their employers’ business interests.145 The U.S. Supreme Court has held
that, if the employee’s speech “cannot be fairly considered as relating to
any matter of political, social, or other concern to the community, govern-
ment officials should enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the First Amend-
ment.”146 As such, internal office matters generally are not issues of public
concern147 and, by logical extension, neither are pictures of drunken
employees or sexual remarks about coworkers. Employers in the public
sector, like the private sector, are not required to “tolerate action which
[they] reasonably believ[e] would disrupt the office, undermine [their]
authority, and destroy close working relationships.”148 The Supreme Court
also has found that an employer may lawfully base an adverse employment
action on an employee’s off-duty, off-premises speech.149 In City of San
Diego v. Roe, a police officer filed a First Amendment claim after he was
fired for selling on eBay videos of himself stripping off his police uniform
and masturbating.150 The Supreme Court held that the officer’s speech was
not protected under the First Amendment, because it was sufficiently

143Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 817 n.5 (4th Cir. 2004); Pietrylo v. Hillstone Rest.
Grp., No. 06-5754-FSH, 2008 WL 6085437, at *5–6 (D.N.J. July 24, 2008); Laura B. Pincus
& Clayton Trotter, The Disparity Between Public and Private Sector Employee Privacy Protections: A
Call for Legitimate Privacy Rights for Private Sector Workers, 33 AM. BUS. L.J. 51, 53–54 (1995)
(discussing the difference in First Amendment and other privacy rights between private and
public sector employee); David C. Yamada, Voices from the Cubicle: Protecting and Encouraging
Private Employee Speech in the Post-Industrial Workspace, 19 BERKELEY J. EMP. & LAB. L. 1, 4–5
(1998).

144Connick v. Myers, 461 U.S. 138, 147 (1983).

145See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); City of San Diego v. Roe, 543 U.S. 77,
82–83 (2004); Connick, 461 U.S. at 142; Pickering v. Bd. of Educ., 391 U.S. 563, 568–70 (1968)
(holding that a public school teacher could not be dismissed from his job for writing a letter
to the newspaper criticizing the school board’s treatment of revenue measures for the school
because the teacher’s First Amendment rights outweighed the school’s business interests).

146Connick, 461 U.S. at 146.

147Id. at 143.

148Id. at 154.

149City of San Diego, 543 U.S. 77.

150Id. at 78–79.

2012 / Social Media Privacy and the Twenty-First-Century Employee 91

“linked to his official status as a police officer” and “detrimental to the
mission and functions of [his] employer.”151

The National Labor Relations Board (NLRB) has attempted to bring
employers’ restrictions of employees’ off-duty speech and conduct under
the purview of the National Labor Relations Act (NLRA).152 The NLRA
guarantees both union and nonunion employees the right to self-
organization and to “engage in other concerted activities for the purpose
of collective bargaining or mutual aid or protection.”153 In late 2010, the
NLRB issued a complaint against an ambulance service, claiming it unlaw-
fully terminated an employee for violating its Internet posting policy,
which forbade employees from making disparaging or defamatory com-
ments about the company or its supervisors at any time online.154 The
employee had posted remarks on Facebook angrily implying that her
supervisor was mentally ill and disparaging him with expletives.155 The
case eventually settled, and in the settlement agreement, the employer
agreed to alter its Internet policies and standards of conduct, which
“improperly restricted” employees’ rights to “discuss [their] wages, hours,
and working conditions with [their] fellow employees and others.”156

The NLRB recently filed additional complaints against employers
who terminated employees based on their online speech.157 The NLRB

151Id. at 84–85.

152Congress passed the NLRA in 1935 to protect workers’ right to unionize, and it created the
National Labor Relations Board to enforce the rights created under the Act. 29 U.S.C. §§
151–69 (2006). Before the passage of the NLRA, employers could freely spy on, interrogate,
and fire union members. See generally Coppage v. Kansas, 236 U.S. 1 (1915) (upholding an
employer’s right to fire its employee for refusing to sign a document stating the employee
would withdraw from the union.).

15329 U.S.C. § 157.

154See Complaint and Notice of Hearing, In re Am. Med. Response of Conn., Inc., No.
34-CA-12576 (N.L.R.B. Oct. 27, 2010), available at http://www.jdsupra.com/post/document
Viewer.aspx?fid=daf37177-f935-4fe0-be1f-82c65d0f2ac3.
155See id.

156Settlement Agreement, In re Am. Med. Response of Conn., Inc., No. 34-CA-12576
(N.L.R.B. Feb. 7, 2011), available at www.minnesotaemploymentlawreport.com/NLRB%20
Facebook%20Settlement .

157Melanie Trottman, NLRB Faults Company for Firing Workers Over Facebook Posts, WALL ST. J.
(May 18, 2011, 7:08 PM), http://online.wsj.com/article/SB1000142405274870350910457633
1861559033254.html.

92 Vol. 49 / American Business Law Journal

filed a complaint against a car dealership that fired an employee who
posted critical photos and comments on Facebook.158 The employee
complained that sales commissions were likely to drop because a promo-
tional event sponsored by the dealership served only water and hot-
dogs.159 As a result, the employee was terminated despite the fact that he
had complied with his employer’s request to delete his online rant.160

The NLRB also has taken action against Hispanics United of Buffalo, a
nonprofit organization in New York, after the organization fired five
workers for Facebook postings that criticized working conditions.161 It
remains to be seen, however, whether the scope of “concerted activities”
will eventually be broadened to include insulting rants about an
employer.162

In addition to federal protections, a few states such as California,
Colorado, Connecticut, New York, and North Dakota have passed legisla-
tion attempting to protect employees from reprisal for lawful off-duty
conduct.163 For example, the California statute prohibits demoting, sus-
pending, or discharging an employee for lawful conduct occurring during
nonworking hours away from the employer’s premises.164 Colorado and
North Dakota’s statutes provide an exception for conduct that has a rela-
tion to the employer’s business interests.165 Despite these protections,

158Press Release, NLRB, Chicago Car Dealership Wrongfully Discharged Employee for Face-
book Post, Complaint Alleges (May 24, 2011), available at http://www.nlrb.gov/news/chicago-
car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges.

159Id.

160Id.; Dave Jaimeson, Facebook Posting Led to Worker’s Unfair Firing: Feds, HUFFINGTON POST
(May 24, 2011, 3:15 PM), http://www.huffingtonpost.com/2011/05/24/facebook-posting-
worker-fired_n_866353.html.

161Trottman, supra note 157.

162Settlement Agreement, supra note 156; Company Settles Case in Firing Tied to Facebook, N.Y.
TIMES, Feb. 7, 2011, at B7.

163See Marisa A. Pagnattaro, What Do You Do When You Are Not at Work?: Limiting the Use of
Off-Duty Conduct as the Basis for Adverse Employment Decisions, 6 U. PA. J. LAB. & EMP. L. 625, 629
(2004). For a general discussion of free speech in America for employees both in and out of
the workplace, see BRUCE BARRY, SPEECHLESS: THE EROSION OF FREE EXPRESSION IN THE AMERICAN
WORKPLACE (2007).

164CAL. LAB. CODE § 96(k) (Deering 2011).

165COLO. REV. STAT. §§ 34-402.5(1)(a)–(b) (2011); N.D. CENT. CODE § 14-02.4-03 (2011).

2012 / Social Media Privacy and the Twenty-First-Century Employee 93

employers who can prove a legitimate business interest in regulating their
employees’ off-duty conduct are generally given a free pass.166 Case law
interpreting lifestyle protection statutes reveal that courts tend to err on
the side of employers when any business interest is at stake. Courts have
permitted dismissals arising out of conduct such as employee extramarital
affairs and criticism of an employer in the newspaper.167

In Canada, employers seeking to dismiss employees on the basis of
unsavory off-duty conduct have often opted to terminate them with com-
pensation to avoid litigation.168 For example, one employer dismissed an
employee with compensation after learning from a customer that the
employee moonlighted as an actor in the adult film industry.169 Labor
arbitration standards for the evaluation of off-duty conduct have a long
history in Canada. A 2011 decision from Nova Scotia, Cape Breton-Victoria
Regional School Board v. Canadian Union of Public Employees, Local 5050,
applied labor arbitration principles dating back to 1967 to evaluate the
conduct of a school caretaker who had a sexual relationship with a
student and ultimately married her.170 In the 1967 precedent, Re Mill-
haven Fibres Ltd. and Ontario O.C.A.W., Local 9-670, the court determined
the following factors to be relevant when evaluating off-duty conduct: (1)
whether a crime had been committed, (2) the harm to the employer’s
reputation or product, (3) the ability of the employee to continue to
perform his duties satisfactorily, (4) the effect on other employees, and
(5) whether the employer is able to continue managing and directing
employees efficiently.171 Presumably, labor arbitrators in Canada will

166See Aaron Kirkland, Note, You Got Fired? On Your Day Off?!: Challenging Termination of
Employees for Personal Blogging Practices, 75 UMKC L. REV. 545, 552–57 (2006) (discussing how
the presence of a legitimate business interest in regulating or monitoring employee conduct
could provide employers with a defense against various different state law claims).

167For a discussion of these examples and others, see Robert Sprague, From Taylorism to the
Omnipticon: Expanding Employee Surveillance Beyond the Workplace, 25 J. MARSHALL J. COMPUTER
& INFO. L. 1, 30–31 (2007).

168See LEVIN ET AL. supra note 14, at 68.

169Id.

170[2011] 298 N.S.R. 2d 258 (Can.), available at http://www.canlii.org/en/ns/nsca/doc/2011/
2011nsca9/2011nsca9.html.

171[1967] 18 L.A.C. 324 para. 20 (Can.).

94 Vol. 49 / American Business Law Journal

reformulate and apply these traditional factors when evaluating
online off-duty conduct and setting appropriate boundaries in employer
policies.

In summary, U.S. law currently provides feeble protection to the
electronic social communications of employees—whether on or off the
job. Fourth Amendment case law suggests that, while expectations of
privacy in digital communication may be recognized as reasonable in the
future, several factors usually cut against a finding of reasonableness,
including employer interests, the logistical demands of the workplace,
and the general accessibility of the information. In fact, every U.S. law
touching upon employee privacy grants significant deference to the
legitimate business interests of employers.172 Statutes that specifically
govern the intersection of social media and workplace privacy have yet
to be enacted. In their absence, it seems that U.S. employers may legally
canvass social media sites for information on employees and candidates
and act on the basis of the information found therein. Employers do not
have an obligation to disclose their methods of gaining information, but
they may not obtain access to digital profiles by coercion. Internationally,
courts are similarly struggling with blurred boundaries between work
and home. On the one hand, the French and Israeli courts, guided by an
inalienable right to privacy in each jurisdiction, are more generous
toward employees and their digital communications. Canadian courts, on
the other hand, acknowledge that workplace policies play a role, but not
an exclusive one, in shaping reasonable employee expectations. Against
this uncertain legal backdrop, an analysis of current workplace practices
and attitudes regarding social media participation is instructive. As
the U.S. Supreme Court has asserted, these burgeoning norms will
dictate the future of the law governing privacy in communication
technologies.173

172See French v. United Parcel Serv., Inc., 2 F. Supp. 2d 128, 131 (D. Mass. 1998); Marsh v.
Delta Air Lines, Inc., 952 F. Supp. 1458, 1462 (D. Colo. 1997).

173See City of Ontario v. Quon, 130 S. Ct. 2619, 2629–30 (2010).

2012 / Social Media Privacy and the Twenty-First-Century Employee 95

II. THE PRIVACY EXPECTATIONS OF MILLENNIAL
EMPLOYEES: A SURVEY

Whether referred to as Millennials,174 the MySpace Generation,175 Digital
Natives,176 or Generation Me,177 the rising workforce is marked by its
presence on the Web and its digital world view. Much has been forecast
about the role this demographic will play in shaping the workplace of the
twenty-first century.178 Scholars have described the new generation of
employees as ambitious—having high expectations for salary and career
promotions—while perhaps incongruously placing a premium on private
life, flexibility, and work/life balance.179 They are reported to value a “fun”
and relaxed workplace atmosphere180 and tend to perplex employers with
the “casualness of their e-mail and texting language” and their furtive
participation on social media while on company time.181 Regarding

174HOWE & STRAUSS, supra note 13. The term Millennial is typically used to describe the cohort
after Generation X and extends, according to Howe and Strauss, from those born from 1982
to 2002. Id. at 15. These authors posit that Millennials “are redefining the purpose of
information technology,” which involves communicating with networks of friends and
“almost uninterrupted contact with each other.” Id. at 272–75.

175Jessi Hempel, The MySpace Generation, BUS. WK., Dec. 12, 2005, at 86 (describing the
MySpace Generation as living comfortably in both the online word and the real world
simultaneously, using online social networks as a community center), available at http://
www.businessweek.com/magazine/content/05_50/b3963001.htm.

176JOHN G. PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF
DIGITAL NATIVES 346 (2008) (defining Digital Natives as those born after 1980 and discussing
their presence on the Internet).

177JEAN M. TWENGE, GENERATION ME: WHY TODAY’s YOUNG AMERICANS ARE MORE CONFIDENT,
ASSERTIVE, ENTITLED—AND MORE MISERABLE THAN EVER BEFORE (2006) (defining Generation Me
as a generation growing up in the 1980s, 1990s, and 2000s). Twenge describes this generation
as a self-important generation that believes everyone should follow and accomplish their
dreams. The generation also has an extremely high focus on individuality. Id. at 4–7.

178Stephanie Armour, Generation Y: They’ve Arrived at Work with New Attitudes, USA TODAY, Nov.
6, 2005, at 1B; The “Millennials” Are Coming, CBS NEWS (Feb. 11, 2009, 3:54 PM), http://
www.cbsnews.com/stories/2007/11/08/60minutes/main3475200.shtml; Steve Tobak, Gen Y:
Solve Your Own Damn Workplace Issues, BNET (May 13, 2010), http://www.bnet.com/blog/ceo/
gen-y-solve-your-own-damn-workplace-issues/4604.

179TWENGE, supra note 177, at 216–21.

180Id. at 218.

181PALFREY & GASSER, supra note 176, at 235.

96 Vol. 49 / American Business Law Journal

privacy, they have been characterized as having “few qualms about sharing
information that [others] might consider sensitive or private,”182 as evi-
denced by their copious digital dossiers. For them, identity seems to be a
“synthesis of real-space and online expressions of self.”183 Paradoxically, as
a whole this group reports being unnerved by the idea of “someone
aggregating, searching through, and acting on the basis of [the] informa-
tion” they share online.184

The empirical project discussed in this part was undertaken to define
attitudes about online privacy, specifically with regard to participation in
OSNs.185 We discuss and analyze that part of the survey pertaining to the
respondents’ usage of OSNs and their attitudes about online privacy vis-
à-vis their employment context. Approximately 2500 Canadian and
American undergraduate students answered questions relating to their
employment status, privacy expectations concerning employer access to
their OSN profiles, and the existence of and adherence to OSN workplace
policies, among other things. These questions were close ended, as respon-
dents chose from a list of various answer choices in multiple choice and
Likert-scale format.186

Most respondents (94%) were between the ages of eighteen and
twenty-four. Females (51%) and males (49%) were equally represented.
Two-thirds of respondents (67%) were employed in paid positions and
worked shifts while pursuing an undergraduate degree, as presented in
Figure 1. Few respondents (less than 10%) were employed full time.

Ninety-two percent of respondents indicated that Facebook was their
preferred OSN,187 while only 2% reported belonging to LinkedIn, a
business-oriented OSN mainly used for professional networking. The
project’s general findings suggest that respondents post a significant

182TWENGE, supra note 177, at 217.

183PALFREY & GASSER, supra note 176, at 36.

184Id. at 51.

185Supra note 14 (discussing the findings); see also LEVIN ET AL., supra note 14 (providing a full
report on the Canadian findings); Levin & Sánchez Abril, supra note 14 (offering general
propositions regarding the survey and its overall findings).

186For a detailed discussion of the methodology as well as the complete survey instrument, see
LEVIN ET AL., supra note 14, 80–92; Levin & Sánchez Abril, supra note 14, at 1048–51.

187Id. at 1023–24.

2012 / Social Media Privacy and the Twenty-First-Century Employee 97

amount of truthful information about themselves online.188 The most
commonly shared pieces of information were pictures of themselves (77%),
their hometown (76%), and their real full name (68%).189 Respondents
expressed some concern over their information reaching unintended
audiences.190 Seventy-two percent of respondents reported restricting
access to their profiles by use of the privacy settings offered by the OSN
Web sites.191

This part presents the findings related to the employment context to
draw conclusions regarding the views of both current and future employ-
ees. The findings have been categorized into three thematic groups: (1)
employer monitoring of OSNs, (2) work and personal life separation, and
(3) workplace restrictions on OSN usage.

A. Employer Monitoring of Employee OSN Profiles

The data suggest a general ambivalence regarding employer access to
employee OSN profiles. Most respondents reported being truthful about
facts relating to their identities (such as full name, portrait photograph,
hometown, etc.). In all likelihood, employers already enjoy access to these

188Id. at 1024–25.

189Id.

190Id. at 1026–27.

191Id. at 1034.

Figure 1. Hours respondents worked each week.

98 Vol. 49 / American Business Law Journal

bits of identifying information without monitoring OSNs. However, some
respondents reported voluntarily posting information about traditionally
private or sensitive topics such as political preferences (24%) or their
partner’s name (25%). Interestingly, 62% posted their relationship status
and 40% disclosed dating interests.192 Perhaps Millennials consider that
sharing such information, which is traditionally shared “at the water
cooler,” does not unduly compromise their privacy. It is unsurprising that
this cohort, which has been characterized as valuing a casual and social
work environment, would be inclined to share facts relating to private life
with employers. This sharing reflects perhaps a population that does not
construct the traditional segregation between social or home and work
contexts on the basis of such facts.

Respondents generally acknowledged that posting information on
social media sites makes it more accessible to many audiences. When asked
how they would react to an employer accessing their social network profile
information, respondents had mixed responses: 41% reported they would
not be concerned if their employer accessed information on their OSN
profiles, 35% indicated they were concerned or very concerned, and 25%
were neutral. These findings, displayed in Figure 2, suggest that respon-
dents were almost equally divided in their tolerance for employer access to
their social media profiles. It may be that the less concerned group is not
privacy wary, or it may be that they have made efforts to cleanse their
profiles of private information and information that could cast them in a
negative or unprofessional light in the eyes of employers.

192See id. at 1025 (providing a chart representing this data).

Figure 2. How concerned would you be if your employer accessed your
social network profile information?

2012 / Social Media Privacy and the Twenty-First-Century Employee 99

Despite what seems like overall ambivalence toward employer intru-
sion into employees’ social networking activities, 54% agreed with the
statement, “It is not right when people can have access to information not
intended for them.”193 This response suggests that respondents generally
disapprove of unintended audiences learning information about them
posted on social media profiles.

Overall, respondents disapproved of employer monitoring or access-
ing employees’ OSN profiles. Seventy-five percent found this practice to be
somewhat or very inappropriate (see Figure 3). This indicates that the
respondents perceive an employer’s monitoring of their private life as a
breach of trust, especially in light of the fact that they tend to be willing to
share certain private information openly with employers.

Respondents were slightly less perturbed, however, by employers
checking on job applicants online without the applicant’s knowledge. Fifty-
six percent of respondents considered it somewhat or very inappropriate
for employers to access OSNs to check the character of a job candidate (see
Figure 4). The greater disapproval of intrusions in the private life of
employees versus applicants may stem from a shared sentiment that
judging a person based on his or her private life is more appropriate
before hiring. After all, the purpose of the hiring process is to vet appli-
cants based in part on their character and reputation.

Almost half (49%) of respondents found it somewhat or very inap-
propriate for employers to proactively search OSNs with the purpose of

193Id. at 1027.

Figure 3. How appropriate would it be for you as a manager to use a social
network to check up on what your employees do during personal time
without them knowing?

100 Vol. 49 / American Business Law Journal

identifying potential candidates for future positions (see Figure 5).194 This
figure suggests that individuals do not expect to be assessed as job candi-
dates in their capacity as OSN members and that at least half of them are
uncomfortable with the blurring of those boundaries.

Figure 5 further underlines the conclusion above: Respondents dem-
onstrated clearly defined expectations of the uses and interpretations of
their online profiles. While they are apt to share their profiles with many

194For a discussion of automated processes developed for such purposes, see, for example,
Saul Hansell, Let Your Boss Find Your Facebook Friends, N.Y. TIMES (Dec. 15, 2008, 3:28 PM),
http://bits.blogs.nytimes.com/2008/12/15/let-your-boss-find-your-facebook-friends.

Figure 4. How appropriate would it be for you as manager to use a social
network to check out the character of someone who has applied for a job?

Figure 5. In your opinion, how appropriate would it be for you as a
manager to proactively research social networks to identify potential high
quality candidates for future positions?

2012 / Social Media Privacy and the Twenty-First-Century Employee 101

and disparate audiences, they reject one audience evaluating them on the
basis of information intended for another audience. Elsewhere, we have
labeled this attitude “network privacy.”195 Below we elucidate network
privacy in the employment context.

B. Work/Personal Life Separation

While a majority of respondents reported not inviting their employers or
supervisors to be part of their OSN, many respondents considered it
appropriate to blend worlds in that manner. Nearly one-third (29%) of
respondents included their immediate supervisor as an online “friend.” As
discussed below, some welcomed their employers’ participation in their
social networks; others reported being required to give their employers
access to their profiles. These data are consistent with the conclusion above
regarding the openness and transparency of Millennial employees vis-à-vis
their workplace cohorts, as well as the characterization of Millennials as
valuing casual and social work environments.

In what seems like a significant departure from traditional workplace
practices, 18% of respondents reported the participation of a senior
company executive in their OSN (see Figure 6). The survey did not define
“senior company executive,” but made it clear this was a person with which
offline socialization would not occur, someone senior to the immediate
supervisor. The data indicate, therefore, the internal blurring of bound-

195Levin & Sánchez Abril, supra note 14, at 1045–46.

Figure 6. In your current or most recent workplace, which of the
following belongs to your online social network?

102 Vol. 49 / American Business Law Journal

aries, or flattening of hierarchies, that digital media facilitate. Rather than
waiting for the “elevator pitch” that may never come, some young employ-
ees now have access to higher-level executives and are willing, perhaps
eager, to interact with these superiors in a digital context. The data also
indicate the willingness of some senior corporate executives to communi-
cate with junior employees through OSNs.

Respondents were divided in their opinions on the propriety of
supervisors socializing with employees through a social network. Thirty-six
percent opined that superior-to-employee socialization is somewhat to
very appropriate, 33% were neutral, and 31% found it to be somewhat to
very inappropriate. The equal distribution signals that respondents’ opin-
ions may depend on other factors, such as the ages and genders of the
parties, the workplace culture, the industry, and the unsettled norms that
are still actively forming in this area. Despite the fact that approximately
one-third of respondents included supervisors or senior company execu-
tives or both in their OSNs, respondents tended to disassociate work life
from personal life. As shown in Figure 7, 54% of those surveyed strongly or
somewhat agreed that “work life is completely separate from personal life,
and what you do in one should not affect the other.” Eighteen percent of
respondents somewhat or strongly disagreed with that statement. Further,
56% disagreed that “knowing how a person behaves outside of work hours
gives managers insight into whether that person is ready for a promotion.”
Only 16% of respondents agreed that off-duty behavior is evidence of
career readiness or potential, which is highly consistent with a separatist

Figure 7. Work life is completely separate from personal life, and what
you do in one should not affect the other.

2012 / Social Media Privacy and the Twenty-First-Century Employee 103

view of professional and personal life. The plurality of those surveyed did
not believe that their participation on social media would significantly
impede their professional development. Over half (52%) somewhat or
strongly disagreed with the following statement: “People wanting to move
up the career ladder should not be part of OSNs because [they] can’t
completely control what is posted about [them].” Nineteen percent agreed
with the foregoing statement, despite their own admitted participation on
OSNs, which indicates that the need to be connected may supersede any
perceived threat to privacy or reputation. Perhaps it indicates that identity
presentation and audience segregation should be facilitated by other legal
and technological means.

One of our hypothetical scenarios probed the relationship between
online behavior and workplace consequences. We asked respondents if
they had heard of the scenario occurring or if it had occurred to them
personally. Putting themselves in the place of the hypothetical actor,
respondents were also asked to attribute responsibility for the conse-
quences of the scenario to the various parties involved. Finally, they were
asked whether they believed real harm could arise from the event. The
hypothetical involved an employee who was caught in a lie when his
employer found incriminating information about him on a social media
Web site. The scenario read as follows:

You called in sick to work because you really wanted to go to your friend’s all
day graduation party. The next day you see several pictures of you having a
great time at the party. Because the pictures are dated you start to worry about
whether you might be caught in your lie about being sick. You contact the
developers of the social network and ask that the pictures be taken down
because the tagging goes so far, it would take you too long to find all the
pictures. There was no response from the network. You are stunned to be
called in by your supervisor a week later to be advised that you were being
“written up” for taking advantage of sick leave and put on notice that if it
happened again you would be terminated.

When attributing responsibility to the various parties for the adverse
consequences, 78% assumed personal responsibility, while the rest laid
blame on the “snooping” supervisor.196 Nearly half (47%) of respondents
were concerned that material about them was not posted by them.197

Seventy-one percent respondents agreed that “real harm”—defined as

196Id. at 1033.

197Id. at 1037.

104 Vol. 49 / American Business Law Journal

physical, economic, or reputational injury—could arise from this occur-
rence (see Figure 8).198 Respondents reported experiencing an invasion of
privacy when information moved, uncontrolled by participants, across
networks and contexts.

These statistics suggest the same contradiction that we have seen
above: the respondents were willing to give digital access to their personal
lives but resists being judged on the basis of what they disclose. They
expect their work and personal lives to be segregated regardless of their
unified and publicly accessible digital identity.

C. Workplace Policies on Employee Participation in Social Media

The survey results show that the preponderance of the respondents’
employers did not adopt clear policies regarding social media use in the
workplace. Sixty-two percent of respondents indicated that their work-
places did not have formal policies on social networking (see Figure 9).
Nineteen percent of respondents did not know if their employers had a
policy on social media usage. Respondents’ lack of clarity as to the exist-
ence of a policy and its contents has clear implications on their expecta-
tions of privacy both in and out of the workplace.

One-fifth of respondents were subject to a formal workplace policy
on social media. Of respondents whose employers have a formal workplace
policy, 32% reported that the policy banned employee access to social
media during company time. Others only forbade any association with or
mention of the company name on the employee’s profile. Respondents

198Id. at 1043.

Figure 8. This scenario could result in physical, economic, or reputational
injury in the offline world.

2012 / Social Media Privacy and the Twenty-First-Century Employee 105

whose employers had formal policies admitted adherence to such
policies was generally poor. Only 22% of respondents working for an
employer with an OSN policy stated that employees abided by the policy
(see Figure 10). Another recent survey found that nearly half of office
employees access Facebook during work hours.199

199NUCLEUS RESEARCH, FACEBOOK: MEASURING THE COST TO BUSINESS OF SOCIAL NETWORKING
(2009), http://nucleusresearch.com/research/notes-and-reports/facebook-measuring-the-cost-
to-business-of-social-notworking/.

Figure 9. Does your workplace have a formal policy related to use of
OSNs during company time?

Figure 10. If there is a policy that forbids all use of OSNs during work
time, do employees generally abide by the policy?

106 Vol. 49 / American Business Law Journal

At the same time, when asked to answer in the role of manager, 51%
of respondents agreed that “accessing OSNs should not be allowed during
work hours” (see Figure 11). This indicates that, although employees
habitually access their OSNs during working hours, there is a generalized
acknowledgment that such practice is counterproductive and that
employer restrictions on this practice during work hours are reasonable.200

Some businesses have begun policing their employees’ online behav-
ior by way of requiring employees to add superiors to their OSN pro-
files.201 As noted above, 18% of respondents reported a senior executive
requested to (and was) added as a friend or connection to an OSN profile.
If employer access is obtained by implicit or explicit coercion, this practice
clearly contravenes the SCA and other laws.202 Eighty-one percent of
respondents considered it inappropriate for employees to be required to
invite their supervisor to their OSN profile. Considering that only 31% of
respondents believed it inappropriate for managers to socialize with
employees via a social network after work hours and that 29% of respon-
dents included their immediate supervisor, it is likely a considerable

200It is possible that some respondents may have interpreted “work time” and “work hours”
broadly, to include breaks and meal times.

201See Jared Sandberg, OMG—My Boss Wants to “Friend” Me on My Online Profile, WALL ST. J.,
July 10, 2007, at B1.

202See supra notes 90–101 (discussing the anti-coercion principle as applied in Pietrylo v.
Hillstone Rest. Grp., No. 06-5754(FSH), 2009 WL 3128420 (D.N.J. Sept. 25, 2009)).

Figure 11. In my opinion, accessing OSNs should not be allowed during
work hours.

2012 / Social Media Privacy and the Twenty-First-Century Employee 107

number of employers may already have access to their employees’ infor-
mation on an OSN and would, therefore, not violate the SCA. Given these
employee practices, the current legislative framework does not offer mean-
ingful protection for employee information online.

D. Summary

The data suggest that Millennial employees maintain an expectation of
privacy regarding information disclosed on social media, especially in
relation to their current and prospective employers. They acknowledge
the increased accessibility and transparency of their private lives when
memorialized on social networks. They also understand that they lack
control over the information posted about them, the way such informa-
tion is interpreted, and the unintended audiences that may access the
information.

Despite these realizations, Millennial respondents displayed a clear
discomfort with the idea of information flowing across contexts. Three-
fourths found it inappropriate for an employer to check employee off-duty
conduct via social networks. More than half (56%) objected to the practice
of social media background checks. More than half also expressed that
work and personal life should not be commingled and that individuals
should not be judged across these contexts. When researchers posed a
scenario in which an employee was caught lying via a social network
posting, most respondents agreed that the employer invaded the employ-
ee’s privacy—even though the employee was engaged in wrongdoing.

Millennials seem to take for granted that their work and personal
lives do not intersect and that their actions in one should not affect the
other, as marked by their overwhelming belief that an employee’s conduct
outside the office should not be used as a basis for making promotion
determinations. Their objection to this increasingly common practice203

reflects an expectation that they would not be discriminated against on the
basis of their online identities. However, the practice of trawling the web

203See DELOITTE, 2009 ETHICS AND WORKPLACE SURVEY 6 (May 21, 2009), http://
www.deloitte.com/assets/Dcom-UnitedStates/Local%20Assets/Documents/us_2009_ethics_
workplace_survey_220509 (reporting that, while 53% of employee respondents said their
social networking pages are none of their employer’s business, 40% of business executive
respondents disagreed and 30% admitted to informally monitoring social networking
sites).

108 Vol. 49 / American Business Law Journal

for information about applicants and employees—and perhaps discrimi-
nating on that basis—will no doubt continue to become the norm unless
restricted by law or technology.

Although many respondents expressed unease at the lack of control
they exercise over the information about them available on OSNs,204 it is
clear that respondents were not willing to forgo participation in social
networks to achieve privacy or separation of work and personal life. They
displayed a strong desire to socialize, to interact, and to share truthful
information about themselves on social networks. The majority believed
participation on social networks is worth the risk; only a small percentage
agreed that participation in social media can impede professional devel-
opment because individuals cannot fully control what is posted about
them.

There are indeed indications in our findings that Goffman’s tradi-
tional theories on audience segregation may no longer hold, because a fair
number of respondents welcomed the blurring of work and personal
boundaries. Roughly a third invited the participation of their bosses in
their OSNs, with even more reporting that employer access to their social
networking profile would not cause them concern. Somewhat surprisingly,
a small percentage responded that work and personal life should not be
separate. This may indicate a growing trend favoring casual work envi-
ronments, it may reflect a lack of concern toward transitory “student jobs,”
or it may be indicative of the naiveté of a young demographic with respect
to the business world.

Overall, the findings are consistent with what we have labeled
network privacy,205 which can be defined as privacy within the informa-
tion’s intended network and context.206 An invasion of privacy is experi-
enced when information moves, uncontrolled by participants, across
networks and contexts.207 The information then loses what Professor

204Levin & Sánchez Abril, supra note 14, at 1037.

205Id. at 1045–46.

206Id.

207See generally Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV.
919 (2005) (arguing the harm and measure of privacy breaches actually occurs upon the
information dissemination outside or beyond the certain social networks to which the victim
of the breach reasonably expected the information to travel).

2012 / Social Media Privacy and the Twenty-First-Century Employee 109

Helen Nissenbaum has called its “contextual integrity.”208 Relevant to the
discussion here, employers access and interpret information meant for
employees’ social friends, sometimes leading to adverse consequences.
Network privacy appears to carry with it a paradox: Millennial employees
generally want privacy from unintended employer eyes and yet share a
significant amount of personal information online, knowing it could
become available to employers and others. The following part will discuss
this ostensible paradox and suggest a framework for the continued discus-
sion of network privacy in law and business.

III. THE FUTURE OF DIGITAL PRIVACY IN THE
WORKPLACE

Prior to the phenomenon of online participation, Goffman’s notion of
audience segregation shielded employees from employers’ judgment of
their private lives. Information about employee performances outside the
work sphere was less readily available to employers. Our findings suggest
that Millennials understand digital media and that cross-performance
access (i.e., employer access to Millennials’ “personal” performances) may
occur, but they are not willing to sacrifice Internet participation to segre-
gate their multiple life performances. Because it is technically and legally
unfeasible to hide their multiple life performances, Millennials rely on
employers to refrain from judging them across contexts.

With minimal technological, contractual, or statutory barriers, it is
not reasonable for an individual to expect others to refrain from judging
him or her based on publicly accessible information, especially in the
business world, where organizations have legitimate and compelling legal
and economic reasons to protect their reputations, trade secrets, and
workplace environments. U.S. law drives employers to evaluate applicants
and employees on all available, legally permissible information. While a
majority of the surveyed Millennials found employer monitoring of
employee online profiles inappropriate, an employee’s remedy in U.S. law
is contingent on whether the information obtained by the employer was

208See Helen Nissenbaum, Privacy As Contextual Integrity, 79 WASH. L. REV. 119, 136–43 (2004)
(defining the concept of “contextual integrity” and arguing that it is the “benchmark of
privacy”).

110 Vol. 49 / American Business Law Journal

publicly available. The “reasonable expectations of privacy” bar is high.209

More often than not, the large number of OSN friends with whom Mil-
lennials share information would clearly eliminate any reasonable expec-
tation of privacy. Computer usage policies, which employers broadly adopt
and employees often thoughtlessly accept, also inform the reasonable
expectation analysis.210 Though our survey respondents generally expect
the information they post on their OSNs will remain private from unau-
thorized parties, their expectation is not currently recognized by U.S. law
as reasonable and legally protectable.

Millennials’ online participation appears inconsistent with their
stated expectations of privacy and audience segregation. However, what
seems at first glance as incongruous is readily understandable as an
attempt to achieve some control in a world where individuals will inevita-
bly amass a public digital dossier. The only way to control the dossier is to
participate actively in shaping it, rather than to renounce entirely online
participation.211

A picture emerges of a society that is, surprisingly, less free, in which
tools for self-expression turn oppressive in the absence of normative,
technological, and legal controls. Normative controls may come in the
form of social acceptance of certain types of disclosures or skeletons in the
online closet. Some have suggested that businesses and society in general
will necessarily become more forgiving of unseemly personal disclosures
eventually, because so many individuals will have online evidence of some
purportedly inappropriate behavior.212 Technological controls, which have
not yet been widely perfected, could one day give individuals the capacity
to shield unwanted audiences from their online expression and identities.
As we wait for normative and technological controls to mature, the law
should protect individuals from employers who are intrusive, discrimina-
tory, or quick and unforgiving in their judgments based on unsubstanti-
ated online information.

209See supra notes 31–65.

210See supra Part I.A.

211Clive Thompson, The See-Through CEO, WIRED (Mar. 2007), http://www.wired.com/wired/
archive/15.04/wired40_ceo.html.

212See Lew McCreary, What Was Privacy? HARV. BUS. REV., Oct. 2008, at 126, 129 (citing David
Weinberger from the Berkman Center for Internet & Society as proposing such a “forgive-
ness” principle and indicating that its development may result over time as the digital-native
generation ages).

2012 / Social Media Privacy and the Twenty-First-Century Employee 111

As discussed above, the law does not currently offer meaningful
protections. Statutory protections, such as the ECPA, were enacted long
before the emergence of online social technologies.213 Updating these and
other statutes to reflect the current technological reality is essential.214

While some initiatives have already gained some traction in Congress,215

this messy, reactionary lawmaking is poor guidance for businesses and
individuals.

A continued absence of legal protection will eventually lead to a life
that Goffman called “unbearably sticky.”216 We find such a transparent
future untenable and contrary to the stated wishes of network privacy
expressed by our survey respondents. As such, we propose below a series
of recommendations for legal and business practices. These recommenda-
tions are drawn from domestic and international case law and informed by
the empirical results of our survey. They are designed to protect employ-
ees who participate online from discrimination, intrusion, harassment, and
other dignitary harms, while balancing the reasonable business and repu-
tational interests of employers.

Because social media privacy encompasses so many facets of the
complex employment relationship, it is clear that there can be no one-size-
fits-all solution. Instead, initiatives should be tailored to specific unwanted
outcomes, take into account the nature of digital information and commu-
nication,217 and give both employees and their employers the latitude to set

213Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002) (“The ECPA was written
prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory
framework is ill-suited to address modern forms of communication like Konop’s secure
website.”).

214While a worthwhile and important task, making specific recommendations regarding the
modernization of U.S. privacy statutes is beyond the scope of this article.

215In May 2011, Senator Patrick Leahy introduced the Electronic Communications Privacy
Act Amendments Act of 2011, which would update the ECPA and introduce some new
safeguards for consumers. Press Release, U.S. Senator Patrick Leahy, Leahy Introduces
Benchmark Bill to Update Key Digital Privacy Law (May 17, 2011), http://leahy.senate.gov/
press/press_releases/release/?id=b6d1f687-f2f7-48a4-80bc-29e3c5f758f2.
216GOFFMAN, supra note 1, at 49 (“Urban life would become unbearably sticky for some if every
contact between two individuals entailed a sharing of personal trials, worries, and secrets.”).

217See generally Ciocchetti, supra note 23, 324–57 (categorizing employee surveillance and
monitoring practices and prescribing analysis based on a more specific than one-size-fits-all
approach).

112 Vol. 49 / American Business Law Journal

the tone for their employment relationship in context- and firm-specific
ways. The following subsections will address these recommendations in
turn.

A. Clear and Communicated Employer Policies on Technology and Internet
Participation

Even though social media have become pervasive in the lives of employees,
their use in the workplace remains legally ungoverned and normatively
unsettled. Employees bring to the shared workplace diverse and often
paradoxical attitudes toward social media. Without legal or normative
guidance, employers are in the best position to set parameters for behavior
and expectations that reflect and honor the realities of the modern world.

What legal guidance there is points to employer responsibility. All of
the international cases on workplace privacy that we canvassed stressed the
importance of explicit workplace privacy policies. In Israel, where courts
have been extremely protective of employee privacy, the existence of clear
privacy policies is a precondition for any employer action.218 Recent deci-
sions from Canadian courts illustrate how the absence of understandable
workplace privacy policies affects employer action.219 In the United States,
much depends on the language and communication of the corporate
policies that regulate the employer–employee relationship.

Our survey shows that a striking 82% of respondents either were not
subject to a workplace policy on social media or did not know if they were.
Of the remaining 18% who reported being subject to a workplace OSN
policy, most reported the policies were ineffectual, and compliance was
poor. These statistics provide evidence that employees are unlikely to take
the time to read and understand written policies or to condition their
employment on the content of such policies. This is consistent with the
literature and empirical reports on click-wrap agreements and form poli-
cies.220 Employee-respondents’ lack of attention to these policies may result
from some combination of the incomprehensibility, legalistic style, or

218See supra notes 114–21 and accompanying text.

219See supra note 74 and accompanying text.

220See Adam Gatt, Electronic Commerce—Click-Wrap Agreements: The Enforceability of Click-Wrap
Agreements, 18 COMP. L. & SECURITY REP. 404 (2002); see also Ryan J. Casamiquela, Contractual
Assent and Enforceability in Cyberspace, 17 BERKELEY TECH. & L. J. 475 (2002).

2012 / Social Media Privacy and the Twenty-First-Century Employee 113

overbreadth of the policies and employees’ perception that the policies are
inapplicable or underenforced. To achieve buy-in from employees, and
thereby establish a uniform privacy culture with clear expectations, tech-
nology and Internet participation policies must be specific and clearly
articulated in a manner consistent with the organization’s culture, while
reflecting emerging society-wide norms. Meaningful Internet participation
policies should contain a high level of detail specific to the type of com-
munication (cell phones, text messages, computer), the character of the
medium (company e-mail versus Internet-based e-mail), the nature of the
online forum (chat rooms, blogs, etc.), the location of the message sender
(on the employer premises versus at home, on employer time or off duty),
and the effect of the hardware and transmitting systems’ ownership on the
message’s privacy. Employees also should be informed about the types of
information they are prohibited from transmitting (such as harassment or
libel about a coworker, confidential and proprietary information, unau-
thorized expressions of endorsement using the company logo or affilia-
tion, and the like). Further, such policies should remind employees that
digital information is fluid and difficult to control and that employees must
comply with Web sites’ terms of service.

An employer also should articulate and justify its technology and
Internet participation policy in terms of the organization’s purpose and
mission. Compelling policies will have a nexus to a shared purpose among
employees and the general nature of the business. For example, employees
of a private school, who are charged with being role models to children,
are much more likely to understand and abide by limitations on certain
off-duty online behavior than employees whose public personas do not
logically affect their workplace role.

Finally, technology and Internet participation policies should realis-
tically reflect the stated perceptions and common expectations of employ-
ees. Employers should consider polling employees regarding their views
or inviting representative employees to give input on proposed policies.
Surveys detailing the privacy climate and biases of the incoming work-
force, such as the one reported in this article, may be particularly instruc-
tive in the formulation of employer policies.

However, as both domestic and international courts have found, the
mere existence of a policy is not sufficient to support privacy expectations
among employees. For example, Pure Power Boot Camp v. Warrior Fitness
Boot Camp admonished that a blanket e-mail policy stating that employees
have no privacy in any matter flowing through the employer’s system may

114 Vol. 49 / American Business Law Journal

not be enough to eviscerate an employee’s expectation of privacy.221 Courts
have reasoned that the totality of circumstances, including both implicit
and explicit messages sent by employers, informs whether a reasonable
expectation of privacy exists.222 Employers should be cognizant that
written policies must be carried through, enforced consistently, and incor-
porated into the organization’s culture to form the rational foundation of
employees’ privacy expectations.

B. An Employee’s Right to Designate Private Spaces

Throughout this examination of workplace privacy concerning social
media, several recurring themes emerge. One is the individual’s real or
imagined construction of what Goffman termed “fixed barriers to percep-
tion.”223 Another is the complexity of creating those fixed barriers we call
“privacy” within an employer’s physical domain.

In the face of these challenges, courts have repeatedly remedied the
employee’s inequity by acknowledging the realities of the employment
relationship and allowing employees to burrow holes of privacy within
their employer-controlled spaces. ECPA jurisprudence has acknowledged
that an employer’s mere request for access to an employee’s password-
protected sites can constitute coercion, given the context of the employ-
ment relationship.224 The U.S. Supreme Court has held that certain areas
of the office can be deemed private, subject to the “operational realities of
the workplace.”225 The French Supreme Court has gone further, giving
employees a right to create certain private spaces by labeling them as
such.226 In these decisions, the French Supreme Court recognized that

221587 F. Supp. 2d 548, 559 (S.D.N.Y. 2008) (finding that an employer’s e-mail policy, which
stated that “e-mail users have no right of personal privacy in any matter stored in, created on,
received from, or sent through or over the system,” was not enough to eviscerate an
employee’s expectation of privacy in his personal e-mail even if accessed at work).

222Id. at 561.

223GOFFMAN, supra note 1, at 238.

224See, e.g., Pietrylo v. Hillstone Rest. Grp., No. 06-5754(FSH), 2009 WL 3128420, at *1
(D.N.J. Sept. 25, 2009).

225O’Connor v. Ortega, 480 U.S. 709, 717 (1987).

226See, e.g., X v. Y-Z, Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Dec.
15, 2009, No. 2561 (Fr.); La Société Seit Hydr’Eau v. M. J-M, Cour de Cassation [Cass.]

2012 / Social Media Privacy and the Twenty-First-Century Employee 115

employees may legitimately store certain private information on their
workplace computers and that boundary crossing is inevitable.

The French Supreme Court’s approach is compatible with our
survey respondents’ stated expectations and behaviors. Our survey
results suggest that young employees are likely to disregard traditional
work–home boundaries by intermingling audiences and accounts. Defin-
ing online behavior with territorial distinctions is simply impracticable.
Most people do not have separate devices for different types of digital
communication. As such, we propose the creation of a right of employees
to designate certain spaces as private within the workplace or employer-
provided spaces. This can be in the form of a tag on a picture labeled
“confidential,” the subject line of an e-mail reading “private,” or the label
on a digital folder. Employees should, however, bear the burden of
shielding what they want to keep private. This is a well-established tenet
of trade secret and privacy tort law. Moreover, protecting information
prospectively—that is, before a leak or a breach—by labeling it as private
both reduces the potential risk of disclosure and simplifies the messy ex
post facto evaluation of an employee’s subjective expectations. In addi-
tion to resonating with emerging technological and social practice, such a
right allows employees some reasonable and circumscribed freedom to
act within their employer’s policies.

C. An Applicant’s Right to Transparency

Fifty-six percent of our survey respondents disapproved of employers
using social networks to perform background checks on job applicants,227

while 49% found it inappropriate for employers to trawl social network
profiles for job candidates.228 Despite these findings, reports suggest that
surreptitious Internet searches of job candidates and employees have

[supreme court for judicial matters] soc., Oct. 21, 2009, No. 2044 (Fr.), available at http://
www.courdecassation.fr/publications_cour_26/arrets_publies_2986/chambre_sociale_3168/
2009_3332/octobre_2009_3246/2044_21_13949.html; Société Nikon France SA v. M. Onof,
Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Oct. 2, 2001, No. 4164
(Fr.), available at http://www.courdecassation.fr/jurisprudena_2/chamber_sociale_576/arret_
no_1159.html.

227See supra Part II.A, Fig. 4.

228See supra Part II.A, Fig. 5.

116 Vol. 49 / American Business Law Journal

become widespread.229 In fact, employers are often reluctant to acknowl-
edge their use of online resources for selection processes and reluctant to
disclose the manner in which they gain access to information applicants
seek to disclose exclusively to their friends online.230 The informal, clan-
destine quality of the practice may disadvantage applicants who participate
online. The practice may also provide employers with a secret backdoor
for illegal employment discrimination.

Regulations on employers’ screening of social media profiles could
serve to placate the concerns of social media users in the workforce. Some
have called for the application of statutory standards of fairness and
transparency for social media background checks and employer evaluation
of employee off-duty conduct.231 Such proposals would require employers
to disclose their screening practices, including the ways they use online
information in making employment decisions. This disclosure require-
ment would significantly deter employers with a penchant for illegal dis-
crimination and would simultaneously alert applicants who may not know
the effect of their online reputation or behavior on their employment
prospects.

D. An Employee’s Right to Respond and Rebut

Similarly, employees who are adversely affected by employment decisions
based on online information or off-duty online conduct should have the
opportunity to know the contents of the information and should have the
right to respond regarding the information’s integrity and veracity. Online
information, by nature, is often presented in a contextual vacuum. A
photograph or comment that may seem inappropriate to unintended
audiences can easily belie the real circumstances under which it occurred.
Our survey revealed that most students are uncomfortable with others
viewing information about them out of context. Fifty-two percent of
respondents agreed that “it is not right when people can have access to

229See Alan Finder, When a Risque Online Persona Undermines a Change for a Job, N.Y. TIMES, June
11, 2006, at 1.

230These uses of online resources may violate an OSNs’ terms of service. See Brandenburg,
supra note 126, at 612–13; Byrnside, supra note 126, at 465–67.

231See, e.g., Davis, supra note 132; Byrnside, supra note 126.

2012 / Social Media Privacy and the Twenty-First-Century Employee 117

information not intended for them.”232 Further, individuals often cannot
control what is said about them or what images of them are “tagged” in
online fora. While some facts about a person may prove to be true, digital
information’s vulnerability to abuse cannot be overlooked.

In the event online information either suggests employee involve-
ment in criminal or unethical activity or evidences a breach of loyalty,
employers should be free to take action against the employee only after
revealing the source of the discrediting information and offering the
employee a meaningful opportunity to respond or to prove the informa-
tion inaccurate. This type of process would be similar to what the courts
have required of government employers under the Fifth Amendment’s
Due Process Clause. For example, in Perry v. Sindermann, the U.S. Supreme
Court held that, when a public employee’s continued employment was
implied and subject only to a for-cause dismissal, such employee had the
procedural due process right to contest the legitimacy of the claims
brought against him when fired.233

E. An Individual’s Right to Delete

About half of respondents in our survey (47%) were concerned that mate-
rial posted about them was not posted by them, and 71% of respondents
believed that online posts that cast them in a negative light could adversely
affect them physically, economically, or reputationally in the offline
world.234 In response to this sentiment, the European Commission recently
introduced into the European Parliament legislation that seeks to create a
“right to delete” or “right to be forgotten.”235 This proposed legislation

232See LEVIN ET AL., supra note 14, at 41.

233408 U.S. 593 (1972).

234See supra notes 197–98 and accompanying text.

235Press Release, European Union, European Commission Sets Out Strategy to Strengthen
EU Data Protection Rules (Nov. 4, 2010), http://europa.eu/rapid/pressReleases
Action.do?reference=IP/10/1462. In Spain, the country’s robust laws protecting individual
honor, intimacy, and privacy have already been interpreted as granting such a right, but
Spanish lawmakers remain baffled regarding how to implement it. See Agencia Española de
Protección de Datos, Study on the Privacy of Personal Data and on the Security of Information in
Social Networks, 62–67 (2009), available at http://www.inteco.es/Seguridad/Observatorio/
Estudios/est_red_sociales_es. Article 18.4 of the Spanish Constitution of 1978 directs the law
to “regulate information technology in order to guarantee individual honor and personal and

118 Vol. 49 / American Business Law Journal

would allow users to compel Web sites, including social networking sites
and possibly even search engines, to delete users’ personal information
upon request, essentially giving users a right to be “forgotten” online.236

If passed, individuals would obtain the right to request any personal
information that is not in the public interest be deleted from a Web
site.237

Armed with this right, employees would be able to request the dele-
tion of images and information about themselves on a site-by-site basis,
allowing for significant reputation cleansing or correcting. On the one
hand, this proposal grants the Millennial generation nothing more than
the right of forgetting that the natural frailty of the human memory gave
past generations.238 On the other hand, it is an opportunity to rewrite the
past and potentially (yet figuratively) get away with murder. From an
employer’s perspective, employees’ ability to delete negative information
about themselves from the Internet provides an alternative solution to
resolve instances of inappropriate online conduct, without having to resort
to termination.

Although the proposed right has yet to be fleshed out from a practical
perspective, a system akin to the notice and takedown procedure under
the United States’ Digital Millennium Copyright Act of 1998 may be
applicable.239 Among other things, that copyright statute limits the
infringement liability of Internet service providers who expeditiously take

familial intimacy and the exercise of individual rights.” C.E., B.O.E. n. 311, Dec. 29, 1978
(Spain), available at http://noticias.juridicas.com/base_datos/Admin/constitucion.t1.html#a18
(as translated by author); see also L.O.P.J. 15/1999, Dec. 13, 1999 (Spain) Protección de
Datos de Carácter Personal, available at http://www.boe.es/boe/dias/1999/12/14/pdfs/A43088-
43099 .

236Matt Warman, Online Right ‘To be Forgotten’ Confirmed by EU, TELEGRAPH (Mar. 17, 2011, 12:53
PM), http://www.telegraph.co.uk/technology/Internet/8388033/Online-right-to-be-forgotten-
confirmed-by-EU.html. The proposal would grant national privacy bodies in EU member
nations the power to investigate and prosecute offending websites. Id.

237For example, individuals would be able to request that Facebook delete an unflattering
photograph of them, provided the photograph’s presence online is not in the public interest.
Id.

238See VIKTOR MAYER-SCHöNBERGER, DELETE: THE VIRTUE OF FORGETTING IN THE DIGITAL AGE 2
(2009) (discussing the effects of modern technology and the Internet specifically on humans’
newfound inability to forget as content remains pervasively available online).

23917 U.S.C. § 512(c)(3) (2006).

2012 / Social Media Privacy and the Twenty-First-Century Employee 119

down infringing material upon receipt of proper notification from the
copyright owner. The statute builds in certain safeguards to protect against
fraud, error, and abuse. For example, all representations in the notices are
made under penalty of perjury,240 and the process allows the initial
uploader of the allegedly infringing material to file a counter notification
in response to the takedown.241 In theory, this procedure is workable in the
privacy context, where individuals (like copyright owners) could petition
Web sites to take down reputation-tarnishing material.

In reality, Web sites do not have the economic or legal incentives to
establish this costly procedure because they are not liable for invasions of
privacy as they would be for copyright violations.242 Further, establishing
copyright ownership and infringement, although difficult, is a more com-
fortably objective task than establishing whether a piece of information is
public or the subject of legitimate public interest. For legal reasons as well,
the introduction of a right to be forgotten (and an accompanying take-
down system) seems highly unlikely to pass muster under U.S. law. In
Europe, the archetypal advocate for this right is a Spanish woman whose
drug conviction was pardoned in 1995.243 The woman petitioned Google
to remove all information about her past because she objected to the
inevitable association a search of her name would produce with news of
her pardon (which was published in an official national bulletin and pre-
viously accessible to a limited few by virtue of its format).244 While this
request may not seem extreme to European eyes, it is outlandish to
American observers. U.S. law unequivocally holds that any information
that is accessible or available to the public cannot be private. As such, there

240Id.

241Id. § 512(g)(2).

242See Communications Decency Act, 47 U.S.C. § 230 (2006); Jeff Kosseff, Defending Section
230: The Value of Intermediary Immunity, 15 J. TECH. L. & POL’Y 123, 149 n.151 (2010) (collecting
example cases); Molly Sachson, Note, The Big Bad Internet: Reassessing Service Provider Immunity
Under § 230 to Protect the Private Individual from Unrestrained Internet Communication, 25 J. CIV.
R. & ECON. DEV. 353, 366–67 (2011).

243Rosario G. Gomez, Quiero que Internet se Olvide de Mi, EL PAIS (Jan. 7, 2011), http://
www.elpais.com/articulo/sociedad/Quiero/Internet/olvide/elpepisoc/20110107elpepisoc_1/
Tes.

244Id.

120 Vol. 49 / American Business Law Journal

is a meager right to privacy in public places,245 public documents,246 and
truthful-yet-shameful histories.247

However, the spirit of this proposed European right should be
adopted privately to safeguard individual dignitary interests. Employer
policies could include grandfather clauses to forgive past reputational scars
evidenced online before the date of hire, and employers could help their
employees manage their individual reputations online in a mutually satis-
factory and beneficial way.

F. An Employee’s Right to an Off-Duty Private Life

As noted above, the EU’s privacy paradigm is more in line with the
reported online privacy expectations of our respondents. European
employees have a right to dignity and a private life that does not stop at the
employer’s doorstep. This right balances the employer’s property rights
against the employee’s dignitary protection.248 Canadian courts have simi-

245See, e.g., Daly v. Viacom, Inc., 238 F. Supp. 2d 1118 (N.D. Cal. 2002) (finding no expec-
tation of privacy with respect to kissing in a bathroom stall because the couple also kissed on
a street corner in plain sight); Wilkins v. Nat’l Broad. Co., Inc., 84 Cal. Rptr. 2d 329 (Cal. Ct.
App. 1999) (holding that, because the plaintiff agreed to attend a meeting at a public
restaurant, no invasion of privacy occurred when the plaintiff was secretly audio- and
videotaped); Helen Nissenbaum, Protecting Privacy in an Information Age: The Problems of
Privacy in Public, 17 LAW & PHIL. 559, 565 (1998) (offering a philosophical justification for
“privacy in public” in the face of “the inconsistencies, discontinuities and fragmentation, and
incompleteness in the framework of legal protections and in public and corporate policy”).

246Florida Star v. B.J.F, 491 U.S. 524 (1989) (reversing an award of damages to a rape victim
whose name was published in a newspaper because the name had been reported in a police
report and was a matter of public significance).

247Melvin v. Reid, 112 Cal. App. 285, 290–91 (Cal. Ct. App. 1931) (“When the incidents of a
life are so public as to be spread upon a public record they come within the knowledge and
into the possession of the public and cease to be private.”). Despite this proclamation, the
California Court of Appeals held in this famous 1931 case that a reformed prostitute could
sue for invasion of privacy when producers of a film revealed she was a former prostitute who
had been tried for murder. The court relied on the fact that the woman had reformed her life
and that the producers revealed other private information. Id. at 292–93; see also Hall v. Post,
372 N.E.2d 711 (N.C. 1988) (holding no recovery for injury caused by a newspaper’s
publication of family secrets, which included the abandonment of a child at a carnival and her
illicit adoption).

248For more on dignity as a basis for workplace privacy, see generally Avner Levin, Dignity in
the Workplace: An Enquiry into the Conceptual Foundation of Workplace Privacy Protection Worldwide,
11 ALSB J. EMP. & LAB. L. 63 (2009). For more detailed discussions of the differences between

2012 / Social Media Privacy and the Twenty-First-Century Employee 121

larly developed rubrics for drawing the elusive line between the
employer’s rights and the employee’s private life.249

For practical and free speech reasons, it would be futile to focus
regulatory efforts on suppressing the online information itself. Any pro-
posal to protect individuals from the unjust consequences of an employer’s
privacy intrusion should focus on imposing reciprocal duties on the
employer. One publicly accepted model of limiting action on the basis of
publicly available information is found in the prohibited grounds model of
Title VII. Under Title VII, employers are prohibited from acting against
individuals based on their sex, color, race, national origin, or religion.250

Title VII does not seek to hush the information (e.g., the fact that an
employee is of a certain race or religion) but rather to regulate the
permissible actions that can legally result from the information’s
consideration.

A more aggressive proposal would limit employer action to situations
in which online information reveals evidence of criminal conduct, conduct
that implicates the employee’s performance, or activity that financially
harms the employer. In other words, information that merely reveals
aspects of an employee’s private life or off-duty conduct should not alone
be grounds for adverse employment decisions. While this proposal finds its
format in Title VII, its substance is also well established in Canadian law,
which utilizes the previously discussed five-factor analysis for evaluating
off-duty conduct.251

Limiting the basis of employment decisions strikes an even balance.
On the one hand, we do not want to protect individuals who have been
involved in nefarious affairs, and we believe that society benefits from

privacy laws and jurisprudence in the United States and the EU, see generally Nancy J. King
et al., Workplace Privacy and Discrimination Issues to Genetic Data: A Comparative Law Study of the
European Union and the United States, 43 AM. BUS. L.J. 79 (2006); Levin & Nicholson, supra note
70.

249See R. v. Cole, [2011] 105 O.R. 3d 253 (Can. Ont. C.A.), available at http://
www.ontariocourts.on.ca/decisions/2011/2011ONCA0218.htm.

25042 U.S.C. § 2000e-2(a)(1) (2006). Similar protection exists in other countries. See, e.g.,
Canadian Human Rights Act, R.S.C. 1985, c. H-6, § 3.

251See supra text accompanying note 171 (listing the factors as (1) whether a crime had been
committed, (2) the harm to the employer’s reputation or product, (3) the ability of the
employee to continue to perform his or her duties satisfactorily, (4) the effect on other
employees, and (5) whether the employer is able to continue managing and directing
employees efficiently).

122 Vol. 49 / American Business Law Journal

having more information. On the other hand, we do not want to unjustly
harm individuals because online media have made their information acces-
sible across contexts and boundaries.

Ultimately, the foregoing recommendations are a first step in devel-
oping legal and normative tools to simulate territorial privacy rights
online. Our survey respondents confirmed that online participation
should not translate, at least in their ethos, to unlimited publicity. How we,
as a society, set limits on online information—as imagined by the Millennial
respondents—will define the role of privacy in the future workplace.

CONCLUSION

In his dissent in O’Connor v. Ortega, Justice Blackmun argued that defining
privacy by physical space is illusory, in that “the tidy distinctions . . .
between the workplace and professional affairs, on the one hand, and
personal possessions and private activities, on the other, do not exist in
reality.”252 Indeed, this is especially the case whenever digital social fora
meet the workplace—contexts collapse, intermingling relationships and
information unrestricted by time and space. As with other historical break-
downs in public/private boundaries, the incursion of social media in the
workplace calls for an evaluation of burgeoning societal expectations and
an assessment of the compatibility of these expectations with existing law
and business practices.

The Supreme Court has recently displayed reluctance in determin-
ing whether expectations of privacy can reasonably exist in modern com-
munication technology, stating that, “[a]t the present, it is uncertain how
workplace norms, and the law’s treatment of them, will evolve.”253 To
clarify this uncertainty, we have analyzed data regarding these emerging
norms as reported by the incoming workforce. In light of the ubiquity of
social media, employers and employees need guidance on how to view
social media in the workplace context and how to shape appropriate
policies on their use. Recent international debates and decisions have also
provided instruction on privacy expectations in the workplace. The
foreign decisions discussed highlight the need for courts and lawmakers to

252O’Connor v. Ortega, 480 U.S. 709, 739 (1987) (Blackmun, J., dissenting).

253City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010).

2012 / Social Media Privacy and the Twenty-First-Century Employee 123

grasp the normative realities of communication technology in making and
enforcing laws. As the United States waits for workplace privacy norms to
evolve, relevant international case law provides a potential normative
point of reference. Such analysis also provides the necessary insight to
lawmakers and judges, especially those who are not personally immersed
in the technologies.

We have shown that Millennials crave to live out in the open, offering
traditionally private information online. Despite this transparency, our
findings suggest that Millennial respondents maintain an expectation of
network privacy, or of audience segregation. Our survey respondents
displayed strong reactions against being forced to share with unintended
audiences and objected to being judged across contexts. In line with
Goffman’s observations, it appears that Millennials share the need of all
healthy individuals to engage in performances bound in social establish-
ments and directed at distinct audiences, in order to shape their identities.
Although the rising workforce desires network privacy, technology, law,
and prevailing business practice do not currently support that approach.
Other jurisdictions have successfully begun regulating the intersection of
social media and the workplace. By shedding light on the legal vacuum
and defining burgeoning societal expectations, we hope that clarity can
emerge and employee dignity and autonomy can be preserved.

124 Vol. 49 / American Business Law Journal

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Employee Interpretations of Change: Exploring
the Other Side of the Resistance Story

Vaibhavi Kulkarni

This study examines change re
sistance in Indian organizations
by departing from change-agent
perspective, and focusing on the
em p lo yee in te rp re ta tio n o f
change. Change ‘resistors ’ were
identified based on inputs from
HR m anagers im p le m en tin g
change, fo llo w in g which in-
depth interviews were conducted
with fifty -fo u r such employees.
The interviews were qualitatively
analyzed to understand employee
p ersp ective. Findings revealed
that employees may not perceive
their actions as resistance and
legitim ize their behavior based
on ideological reasons or their
assumption that they are behav
ing in long-term interests o f the
organization. Poorly fram ed com
munication can lead to negative
resp o n se tow ards the change,
even i f employees do not fin d the
proposed change problematic.

Vaibhavi Kulkarni is from Indian Institute of
Management Ahmedabad 380015. E mail:
vaibhavik@iima.ac.in

Introduction

Resistance is a complex, multifaceted
phenomenon that has been widely dis
cussed in management literature, and
more often than not, change scholars
have identified employee resistance as a
crucial factor that influences the success
o f change implementation. For the last
several decades change research has
focused on ways to reduce or eliminate
resistance, with the primary assumption
that it is dysfunctional and therefore
thwarts change implementation (Lewis,
2011). Most of this work has been done
in the Western context, with several re
searchers pointing towards the dearth of
change management and change resis
tance studies in the Indian context
(Bhatnagar, Budhwar, Srivastava & Saini,
2010). Bezboruah(2008) called for a need
to understand employee resistance in In
dia.

The concept o f resistance was first
introduced by Lewin (1947), and since
then, it has been defined as a multifac
eted phenomenon that leads to unantici
pated delays, costs and instabilities in
implementing change (Ansoff, 1988);
behavior that attempts to maintain the

246 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

mailto:vaibhavik@iima.ac.in

Employee Interpretations o f Change

status quo when the organization wants
to change the status quo (Zaltman&
Duncan, 1977); willingness to engage in
deception (Shapiro, Lewicki& Devine,
1985); or as a reactive process that sig
nals power relations and organizational
members opposition to initiatives taken
by other members (Jermier, Knights &
Nord, 1994).

Needless to say, most o f the times
resistance has been described in nega
tive terms – it either prevents organiza
tions from carrying out change imple
m entation or creates challenges that
make this process more difficult. Resis
tance research can be broadly divided
into two approaches: the first which pro
vides a more conventional, traditional
view o f resistance recognizes it as a
barrier to change processes and studies
it primarily from the change-agent’s per
spective. Researchers taking a contem
porary view of resistance question the
traditional ‘change agent centric’ per
spective o f change implementation and
argue for greater focus on employee
perspective. Researchers have begun to
believe that resistance can provide valu
able insights from employees and raise
legitimate concerns about the change
process itself. However, both these
views have primarily been shaped based
on Western concepts of change as well
as resistance. Unfortunately, studies
examining Indian perspectives regard
ing resistance are few and far in be
tween. This article attempts to close this
gap by taking a contemporary view of
resistance by examining it from the em
ployee perspective, and doing so in the
Indian context.

Since resistance has been considered
problematic for change implementation,
most studies focus on attempts to ‘man
age’ resistance. In an effort to under
stand (and prevent) resistance, significant
body of resistance research has focused
on identifying reasons that lead to resis
tance and thereby managing resistance.

Factors Leading to Resistance

Schein (1993) found change resis
tance to be a ubiquitous phenomenon in
organizations. Researchers have identi
fied a wide variety of factors that pro
vide explanation for resistance: organi
zational culture, organizational politics,
lack of resources, lack o f commitment,
insufficient information, poor timing, lack
of trust, uncertainty, fear o f unpleasant
consequences (Dent & Goldberg, 1999;
Labianca, Gray & Brass, 2000), psycho
logical support, gradual and flexible par
tic ip a tio n o f change (F ernandez &
Rainey, 2006), loss o f status or power,
lack o f reward, disruption o f routine
(Gilley, Godak& Gilley, 2009). With the
emergence o f such wide variety of fac
tors, some researchers attempted to clas
sify them in to broad categories. Largely,
literature suggests that resistance can be
because of individual or organizational
factors, though focus seems to be more
on individual reasons for resisting change.
This focus is not surprising because
change researchers have acknowledged
that it is not possible to change organiza-

It is not possible to change orga
nizations in meaningful ways unless
the employees change.

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 247

Vaibhavi Kulkarni

tions in meaningful ways unless the em
ployees change (Poole & Van de Van,
2004).

In d iv id u a l F a cto rs: E ffectiv e
change im plementation assumes that
employees begin believing differently,
thinking differently and behaving differ
ently, thus placing emphasis on individual
level acceptance of change. For instance,
change acceptance and resistance has
been linked to individual personality char
acteristics (Oreg, 2003). In his study,
Oreg developed a resistance to change
scale based on personality attributes such
as intolerance, reluctance to lose control,
cognitive rigidity and dispositional ten
dency.

Resistance literature also emphasizes
understanding the cognitive processes
underlying employee resistance. Lau and
Woodman (1995) tried to provide a cog
nitive explanation for employee reactions
to change by using the concept o f indi
vidual schemas. They posit that schema
can help people make sense of informa
tion in the environment and when orga
nizations undergo change, members have
some interpretations and expectations of
these changes. Understanding change
schema can help us examine employees’
current change orientation, anticipate
expectations about future change and
identify the possibility of change resis
tance beforehand. Similarly, Labianca,
Bray and Brass (2000) found that change
recipients’ inability to revise old decision
making schemas and enact new schemas
can lead to resistance during change pro
cess. They found that resistance was in
stigated by employee self -interest and

was further motivated by skepticism re
garding management’s commitment to
the new change schema. Another popu
larized assumption about resistance is that
emotional responses have predominantly
negative implications for change imple
mentation and scholars have associated
them with irrational resistance (Kiefer,
2005). To a large extent, negative emo
tions such as fear, anxiety, stress and in
security have been perceived to be an
individual problem, wherein the employee
lacks the maturity or ability to appreci
ate change (Carr, 2001).

O rganizational F a cto rs: Though
several scholars have argued that resis
tance to change is also built into organi
zational factors (Burke, 2002), there are
relatively few studies looking at macro
level reasons for resistance. Waddell and
Sohal(1998) identify systems, processes,
climate and culture as factors causing a
state of inertia that leads an organization
towards greater reliability and predict
ability which, in turn, makes it difficult
for agents to implement change. There
has been some focus on understanding
organizational culture and capabilities to
anticipate and manage change resistance
(Jones, Jimmieson & Griffiths, 2005).

Top management support and com
mitment to change are expected to play
a crucial role in change acceptance, since
skillful and strategic leader can success
fully bring together disparate employees
and overcome obstacles (Fernandez &
Rainey, 2006). Employee resistance is
also likely to be high when it is perceived
that organizational resources and capa
bilities do not support the proposed

248 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations o f Change

L ack o f reso u rces can lead to
higher stress levels and even ne
glect of organizational functions.

change. Since planned change involves
redeployment or redirection of resources,
lack o f resources can lead to higher
stress levels and even neglect o f organi
zational functions(Burke, 2002). Finally,
factors such as broken agreements, vio
lation of trust, communication breakdown
and misrepresenting o f situation have
been found to be major causes of resis
tance by scholars (Reichers et al., 1997;
Ford, Ford &D’Amelio, 2008).

Embedded Assumptions

These studies mentioned in the ear
lier sections provide ways o f preventing
resistance by identifying factors that can
lead to resistance, but do not truly en
gage with the notion o f resistance in a
meaningful way. There is little interest in
understanding how recipients make sense
o f this process; researchers are prima
rily concerned with efficient accomplish
ment o f management goals, leading to
preventative prescriptions for overcom
ing resistance.

During recent times, however, re
searchers have begun to question the con
ventional wisdom that people always re
sist change. An oft repeated critique of
negative approach towards resistance is
that almost all discussions o f resistance
take place from the change agent’s per
spective. Therefore any response that is
not in keeping with the change agent’s
expectation is perceived as resistance

People do not resist change per se,
but may resist the uncertainty as
sociated with the unknown.

(Bartunek, 1993). This one sided approach
towards understanding change resistance
leads us to conceptualize resistance as a
problem that is invariably caused by the
recipient and it is up to the change agent
to manage or overcome this problem.
Such ‘change agent centric’ view, accord
ing to Ford et al. (2008), assumes that an
account of change resistance is an accu
rate report provided by an unbiased source
presenting an objective reality. Human
resource managers and change scholars
have paid scant attention to the perspec
tives of those facing the change and over
whelmingly, research takes the perspec
tive of the management implementing the
change. Further, Piderit (2000) draws our
attention to managerial tendency of asso
ciating resistance with recipient inability
to accept change and fundamental attri
bution error. Change agents responsible
for implementing change are likely to
blame others (in this case, change recipi
ents) for ineffective change implementa
tion rather than accepting their own role
in this process.Dent and Goldberg (1999)
suggest that people do not resist change
per se, but may resist the uncertainty as
sociated with the unknown, or the way in
which change is implemented, or certain
rationale behind change implementation.

Objective of the Study

This study takes a contem porary
view of resistance and views resistance
from the employee viewpoint through in-

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 249

Vaibhavi Kulkarni

terpretive approach. This approach is not
new; Isabella (1990) argued for the need
to use interpretive approach to under
stand sense making during change pro
cess over two decades ago. It is only
recently that this perspective is gaining
ground (Putnam, Grant, Grant & Cutcher,
2005). According to Isabella (1990),
change processes often unfold over a
long period of time, thus demanding con
stant adjustment on the part of those in
volved in change. She argues that the
studies that have focused on cognitive
shifts and schemas have viewed the pro
cess from behavioral perspective and not
interpretive perspective. Our understand
ing o f change is restricted to a large ex
tent to the observed behavior of the em
ployees, but we know little about the in
terpretations associated with these be
haviors. This study takes the interpretive
approach by examining the notion o f re
sistance at Indian workplace by focus
ing on the employees facing the change
rath er than those im plem enting the
change. In other words, it attempts to
look at the employee perspective for two
significant purposes: first is to move away
from traditional, change agent perspec
tive o f resistance and second is to con
tribute to our understanding of resistance
in the Indian context, since there is little
knowledge o f how the change unfolds in
Indian organizations. Accordingly, the
study asks the following questions:

1: How do employees make sense of
their own reaction to change initia
tives?

2: How does employee interpretation of
change influence their reaction and
readiness towards change?

Data Collection

Data was collected through in-depth
interview method. Approximately 75 HR
managers present at a management con
clave on Change Management in India
were requested to share information re
garding change implementation. They
were asked to provide contact informa
tion of the employees that fulfilled the
following criteria: a) the employees were
significantly affected by the change, and
b) their response to the proposed change
was perceived as negative by change
implementers. After a 45 day gap, the
employees were contacted to get their
views on the change process. Eighty-
seven employees were contacted on the
phone and during the introductory con
versation they were assured of confiden
tiality regarding the interview,along with
the guarantee that their conversations
would not be shared with any of their
organizational members, including their
supervisors (Appendix 1 for preliminary
telephone script). The same introductory
script was repeated for all the phone
calls. Out of the 87 employees contacted,
54 agreed to do the interview (Appendix
2 for participant details).

Typically two or three rounds o f in
terviews were conducted to build trust
and allow participants to open up regard
ing their change experience (Table 1 for
details). The interviews were conducted
over a four-month period. Due to the
manner in which participants were ap
proached, none of the interviews were
reco rd ed . A research a ssistan t was
present during the interviews and was
assigned the task o f taking down the in-

250 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations o f Change

terviews verbatim for purposes o f tran
scription. Initially, a set o f open-ended
guiding questions (Appendix 3) were
asked to get participant perspective to

ward change, though, as comfort level
o f the participants increased, the inter
view s led to d e e p e r n a rra tiv e s o f
change.

Table 1 Details of Interview Sessions for 54 P articipants

Number o f
Participants

Number o f Interviews
per participant

Approximate Number o f Minutes
per One Interview

27 2 120
20 3 80
5 1 180
2 1 120

Data Analysis

The data was examined using con
tent analysis technique, defined as a
“method for subjective interpretation of
the content o f text data through the sys
tematic classification process of coding
and identifying them es or p a tte rn s”
(Hsieh & Shannon, 2005: 1278). Content
analysis requires development of coding
schemes that work as translation devices
and enable researchers to organize data
iqto categories. Categories are themes
that are either directly expressed in the
text or are derived from the text by the
analyst. The final step is to identify rela
tionships among categories. For the pur
poses o f this study, content analysis was
conducted using the qualitative analysis
software Atlas.ti. The tools o f the pro
gram enable researchers identify themes,
create coding schemes leading to vari
ous categories o f data, and recognize
patterns that allow for understanding of
the complex relationships between vari
ous codes. Through Atlas.ti large amounts
o f data in the form o f documents and
audio-visual files can be stored as herme
neutic units (HU), which in turn contain

primary documents, field notes, interpre
tive memos, codes and categories, direct
quotations, etc. A total o f 178 primary
documents were created in Atlas.ti, out
o f which 121 represented interview tran
scripts, and the rest comprised field notes
in the form of observation notes, and
memos created during analysis.

During the first phase o f analysis,
each line of each primary document was
analyzed to understand the ways in which
organizational members talked about the
change and resistance to change. Spe
cific text was coded by the same label
when found to be conceptually similar,
and as analysis progressed, codes were
further refined. The first level coding
facilitated creation of themes and catego
rized at the content level, and the second
level coding led to identification of asso
ciations and patterns through inter-link
ages o f codes. The second level coding
led to creation o f Super-codes, which
aided by the use o f Co-Occurrence tool
of Atlas.ti. This tool allows researchers
to retrieve codes that occur in proximity
to each other, which in turn facilitates
recognition of connections between cer-

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 251

Vaibhavi Kulkarni

tain codes and allows for establishment
of relationships.

The study found three main themes
running across the notion o f resistance
at workplace, namely ideological reasons,
organizational good and expression of
voice.

‘Ideological’ Resistance

Analysis of the interviews revealed
that several employees viewed their re

action not as resistance but as a stand
taken to conserve certain principles or
world views (fig. 1 ). When discussing
their reactions to change, most o f them
chose to term their actions not as resis
tance but as behaviors undertaken out of
sense of responsibility or obligation.

Most of them chose to term their
actions not as resistance but as be
haviors undertaken out of sense of
responsibility or obligation.

Fig. 1 Atlas.ti Network View for Super-codes on Findings for Ideological Resistance

252 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations of Change

The reasons for the sense of respon
sibility varied, depending on the context
of change, their designations and the or
ganizational affiliation. Further, the stand
taken was either to reduce the disso
nance between individual values/norms
and the perceived changes within the
organization or dissonance between or
ganizational values /norms and perceived
changes. The study found age to be a
crucial factor with regard to the type of
dissonance. The narrations by the older
generation typically centered on per
ceived conflict between what is, namely
current organizational culture, and what
will be, namely future organizational cul
ture, due to the change implementation.
One o f the participants who was faced
with organizational change related to pay
structure and perform ance appraisal
stated: “With 20 years in this organiza
tion, I can tell you we are going in the
wrong direction. This incentive will lead
to cut throat competition and inter-depart
mental fights. It won’t matter to me be
cause I am not interested in rising up at
the cost of friends, but it is my duty to
point it out. I have written to the Chief
General Manager, but let’s see whether
he listens.” (Participant # 7)

As mentioned earlier, those with 10
or less than 10 years o f experience typi
cally cited how they struggled with the
proposed change primarily because it
clashed with their personal beliefs re
garding what was the ‘right’ thing to do.
For instance, a 32 year old corporate
communications employee talked about
her discom fort with the decision to
outsource the design aspect o f their
brand building: ’’Even if the company has

a rationale related to cost cutting or
something like that, the studio employ
ees have been hired for their creative
a b ilitie s, not liaiso n w ith some ad
agency. There needs to be respect for
individual talent. Speaking up is the only
thing one can do, and I would rather do
that than keep shut and go against my
beliefs.’’(Participant # 13)

Symbolic or Sacrificial

The study found that those who op
posed change due to ideological factors
did so based on certain assumptions re
lated to how these actions would play out
within the organization. One of the find
ings was the belief that their actions
would be more along the lines of sym
bolic gestures and may not yield any con
crete results.

Those who opposed change due to
ideological factors did so based on
certain assumptions related to how
these actions would play out within
the organization.

The undertaking was more of an at
tempt to delegitimize the change rather
than a call for action against the change
implementers. The attempt to discredit
the change took many forms, such as sig
nature campaigns, emails to the business
unit heads or other top management of
ficials, refusal to participate in input so
licitation regarding change and refusal to
provide feedback during change imple
mentation. As noted by participant #
53:”It may not make a difference in
terms of outcome, but it is my duty to

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 253

Vaibhavi Kulkarni

show that there are problems here, is
sues that have not been addressed.”

The second scenario envisaged by
the participants was that they would face
severe consequences because o f their
viewpoint, but they saw it as an inevi
table part o f larger context in which they
were situated. This was partly due to
strong b elief systems and sense o f what
they perceived to be right or wrong.

Organizational Good

A n o th e r d o m in a n t th e m e th a t
em erged from the interview s was the
concept o f resistance as something that
was perceived to be helpful for the or

ganization. There was a b elief that the
change is not going to be as beneficial
for the organization as proposed by the
change agents and in fact, may harm the
organization if not implemented appropri
ately. The underlying patterns between
various codes revealed two significant
aspects related to this b elief (fig. 2). The
first one was the concern for organiza
tional well-being, and second one was the
concern for organizational team mem
bers, which translated into a quasi- lead
ership role undertaken by those speak
ing up against the change. The reactions
were based prim arily on the uncertainty
surrounding change and the manner in
which it would affect the organization in
the long run.

Fig.2 Atlas.ti Network view for Super-codes on Findings for Organizational Good

254 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations o f Change

Organizational Well-being

The uncertainty or lack o f informa
tion surrounding the nature of change and
im plementation tactics emerged as a
major issue for the participants. One of
the frequent concerns was the dearth of
information surrounding change, leading
to high levels of anxiety regarding the im
plications. One o f the participants, for
instance, explained how he found the
timeline problematic because the conse
quences of the change were not clear to
him: “We are changing the entire supply
chain system but the timeline shared by
HR does not indicate if there will be trial
run or what will happen if the system
crashes or whether clients are in the loop.
There’s all this talk and no actual infor
mation. We are a small unit so our rela
tionship with vendors will take a beating
if there are glitches,’’(Participant # 29)

Several participants also seerrted to
be concerned about the difference be
tween top management assumptions and
field-level realities, thus implying that the
proposed changes could fail because of
misconceptions regarding what was hap
pening out there in the field. Citing one
such issue, a senior safety manager (Par
ticipant # 1 ) elaborated on what he per
ceived to be ill-thought policy change
regarding travel claims and entitlements
which would negatively impact the sales
force: “This is a case o f change seeming
to be logical or appropriate in the corpo
rate office when a bunch o f top people
discuss it but it will not work in reality.
There will be unnecessary bottlenecks
that negatively affect my men’s perfor
m ance.”

Team’s Well-being

Closely associated with the idea of
organizational well-being is the notion of
team or peer well-being. Several par
ticipants echoed not only the view of or
ganization being unaware o f ground re
alities (mentioned in the earlier quote),
but were also o f the b e lie f that the
change was not well-thought. This was
attributed to the assumption that the or
ganization has not taken input from the
ground-level and therefore certain as
pects of change are going to create prob
lems for their team or themselves as well
as peers. Further, interviews revealed
that participants’ actions were often mo
tivated by their concern for their team
well-being along with their conviction
that the change would directly affect the
team perform ance levels and career
growth. At times, this was translated
into a sense of responsibility toward the
team and the response to change was
articulated as characteristics befitting a
team leader. “Changes in parameters of
appraisal affect all o f us. They are try
ing to get us to run in circles but if we
don’t speak up now, we can only blame
ourselves later. My team expects me to
provide this feedback and frankly as
their supervisor I think their expectations
are valid” (Participant # 49). In some
cases, the impending changes related to
the nature o f work and lack o f clarity
regarding the way in which the change
would play out, affected anxiety levels
o f organizational members. The re
sponses to the rising anxiety levels
ranged from demands for more infor
mation to demand for modification in
change policies.

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 255

Vaibhavi Kulkarni

Expression of ‘Voice’

The final theme emerging from in
terviews was that o f response to change
as a need for self-expression or making
their voice salient. Analysis suggested
that the way in which change was framed
and announced made a significant impact
on how change was perceived. Further,
when organizations did not provide the
em ployees an o p p o rtu n ity to clarify,
make suggestions or provide input, it
seemed to negatively impact employee
self-worth. Several o f the participants
who were senior in terms o f their desig-
Fig.3 Atlas.ti Network View for Super-codes on

nations or work experience within the
organization experienced anguish at the
w ay in w hich the change w as being
brought about (fig. 3). Two aspects domi
nated the theme o f change resistance as
need for self-expression and voice – first
one was that o f employee need for vali
dation and their b elief regarding loss o f
face which resulted due to the way in
which change was planned as well as
announced; second was the assertion that
their voice was im portant and could not
be drowned by the authoritative or hier
archical manner in which change was
being implemented.
Findings for Employee Voice

Authentication of Self-worth

As m entioned earlier in the article,
the manner in which the change was com

municated had a significant impact on
ch ange-readiness. F irst one was the
medium or channel chosen to communi
cate change. Several participants were

256 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

I Employee Interpretations o f Change

of the belief that their position within the
organization or the relationship they
shared with the change implementers
was such that receiving the information
through a standard email or memo was
patronizing and unbecoming in light of
their stature. “It is a matter o f great dis
tress. For them to tell me in such a man
ner, without any prior consultation and
then expect me to just accept it, it is sim
ply not done.” (Participant # 25).The re
sulting feeling of loss of pride also led
some o f the employees to react nega
tively and be defiant, even if the nature
o f change per se was not found to be
problematic. “I guess what’s being pro
posed is not that bad and we could work
with it. But the fact is, decisions are be
ing made in an ivory tower and their high
handed attitude is putting us all down. We
might as well be nothing. We need to be
heard, we need to have some self-re
spect.” (Participant # 8)

Change Framing

The framing o f the message also
made a significant impact on change-
readiness of those interviewed. Several
participants pointed out that change an
nouncements and their framing affected
how they anticipated the change to un
fold. “The announcement of change was
so one-sided; it just mentioned what was
happening and how it was good for us.
There was no mention o f why this was

The framin g o f the message also
m a d e a s i g n i f i c a n t im p a c t on
ch a n g e-rea d in ess o f those in ter
viewed.

happening, how it would unfold and what
we should expect regarding our job roles.
It was almost as if we should be follow
ing the top management blindly, with no
in d iv id u a l th o u g h ts o f our
own.’’(Participant # 3).The tone and the
contents of change communication were
perceived as patronizing and several par
ticipants expressed how they felt con
strained by the environment surrounding
change implementation. This, in turn,
prompted them to express their discon
tent related to change, though deeper dis
cussions during interviews revealed that
dissonance was caused by framing of the
change messages rather than the actual
change itself.

Discussion & Conclusion

Change presents an organization with
new realities that employees need to ac
cept and try to meaningfully interpret.
Based on recent shifts in our understand
ing of resistance (e.g. Reissner, 2008),
this study has moved away from em
ployee actions o f resistance and focused
on employee interpretations o f change.
The initial finding of employee resistance
due to ideological reasons can be linked
to the notion o f principled dissent. Prin
cipled dissent is the effort by employees
to challenge the status quo on ethical
grounds or principles (Kassing &Avtgis,
1999). Such resistance is driven by em
ployee commitment and sincere interest
in change outcomes and therefore HR
p ro fe s sio n a ls and o th er change
im p lem en ters need to give such
dissentersa serious consideration. Fur
ther, some of the participants in the study
felt obligated to speak up against what

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 257

Vaibhavi Kulkarni

they perceived was problem atic, even
when they realized that it would not im
pact the outcome (resistance as symbolic)
or would affect their career negatively
(resistance as sacrifice). Engaging in dia
logue with such employees for sense giv
ing purposes can serve to enhance the
change im plem entation process, espe
cially if they are able to see the long term
b e n e fits o f ch an g e and becom e key
influencers within the organization.

Further, when employees react nega
tively to change due to their desire to help
the organization (for organizational good),
it calls for change agents to examine their
initiatives more closely and prevent them
from taking change-related assumptions
for granted. By resisting a change, em
p lo y e e s o fte n try to b rin g to
m anagem ent’s attention issues that need
to be addressed for efficient functioning
o f the organization and provide feedback
fo r sm o o th ch an g e im p le m e n ta tio n
(Gilley, Godak& Gilley, 2009). Often large
scale change implem entation is an ex
tremely complex task and it is not pos
sible to plan for every minor contingency
or every ground-level complication. Thus,
employee objections may contain infor
mation that can be used to improve the
change initiative. Taking input regarding
ground-level information could serve the
multiple purpose o f allaying anxieties sur
rounding change, generating a more en
thusiastic response to the change itself
and getting the opportunity to iron out
glitches that may have escaped the no
tice o f top management officials.

A s n o te d by R a m n a ra y a n and
N ilakant (2006), within the Indian con

text, organizational members are more
likely to be active participants in change
when they are able to contribute to the
change process. In fact, management
literature overwhelmingly suggests that
employee involvement, specifically, em
ployee participation in change processes,
is the best way to reduce resistance.The
need for em ployee p articip a tio n was
brought up by Coch and French (1948)
in their classic study on change process,
who argued that participation increases
employee commitment and therefore re
duces resistance. Since then, participa
tion has been widely cited as being the
best way to overcome resistance (Burke,
2 0 0 2 ). A c c o rd in g to B a s in g e r an d
Peterson (2008), participation helps em
ployees prepare cognitively for future
adjustments, thus leading to better out
comes, whereas lack o f participation can
lead to resistance.

Organizational members are more
likely to be active participants in
change when they are able to con
tribute to the change process.

The study found that within the In
dian context, participation may be impor
tant not only to solicit employee feedback
and prepare employees for im pending
change, but also because non-involve
ment o f certain section o f employees may
lead to loss o f face and status for them.
In high context cultures such as India,
change implementers need to take into
consideration the relationship between
change agent and the recipient. An im
personal, logical message with a sense
o f objectivity regarding change may work

258 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations o f Change

in low-context cultures, but within the
Indian context, the study found that the
announcement o f change and rationale
for change are not seen as outside and
apart from communicating parties – rea
sons by themselves are not persuasive,
it is the context, the relationship and the
way it is com m unicated that m atters.
Further, the choice o f the medium for
com m unication can carry a sym bolic
m essage that goes beyond the actual
content o f the message. These symbolic
cues go beyond the objective features o f
the m edium ; they are in terp retatio n s
based on shared meaning o f a medium
that has been developed over time. The
medium for communication is based on
continuum o f ‘richness’ i.e. the ability to
accommodate two-way communication
and the extent to which the medium simu
lates actual presence o f the communica
tors. Face to face communication is the
richest medium followed by telephone,
email and various forms o f formal and
informal written communication. Within
the Indian context, where relationships
are personalized within the workplace
(Sinha, 2000), the symbolic meaning as
sociated with the medium o f communi
cation during change announcements as
sumes vital importance.

Finally, members o f collectivist cul
tures have been found to dem onstrate
higher commitment to work due to an
ingrained sense o f duty and responsibil
ity and therefore the popular notion is that
they are less likely to engage in overt
resistance. At the same time, Chatterjee
& Pearson (2000) have noted that this
orientation is more salient at the family
and kinship level, and does not always

hold true within the organizational con
text. In keeping with this argument, this
study found that in terms o f change com
munication, ignoring employee’s sense o f
individuality could have a negative impact
on their willingness to accept change.The
need for self-expression is an important
finding, especially since researchers of
ten make the assumption that authority
and hierarchy within Indian organizations
mitigates the employee need individual
expression.

In conclusion, so far, the most com
mon way o f managing change resistance
has been to ‘resist’ resistance. This pa
per moves away from this concept and
posits that resistance may not always be
detrimental to change if the HR manag
ers engage meaningfully with those react
ing negatively to change. As found by the
study, in several cases, it was not the
change per se that was problematic. Em
ployee actions were often guided by their
belief that the change would lead to orga
nizational-level problems (erosion o f val
ues or performance issues) or team level
problems (issues with employee well-be
ing and sense o f unfairness). Many o f
these perceptions resulted from lack o f
information regarding change and increase
in anxiety or uncertainty surrounding
change. While issues related to organiza
tional and individual uncertainty or anxi
ety have been addressed in resistance-re
lated research within the Western context,
we need more studies to get a nuanced
understanding o f how these perceptions
are shaped in Indian workplace.

Other reasons for negative responses
included the manner in which the change

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 259

Vaibhavi Kulkarni

was announced or the lack o f input so
licitation during planning of change. The
loss of face and self-doubt experienced
by senior employees (in terms o f desig
nation or in terms o f work experience)
points to the need for more contextualized
studies that can unpack how societal cul
ture influences organizational members’
reaction to change. In a similar vein, we
need more studies to understand how
change framing and choice of medium
can lead to greater resistance, even if the
change is not problematic. There is a
definite need for greater focus on em
ployee resistance in India so that we can
generate contextually relevant knowledge
regarding implementation o f planned
change. Finally we need to examine re
sistance through the local and emergent
dimension, instead of taking the view that
resistance needs to be curbed without
understanding their causes or implica
tions. As indicated by this study, there is
much to be gained by understanding how
and why em ployee resistan ce takes
place.

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The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 261
i

Vaibhavi Kulkcirni

Appendix 1 General Telephone Script to Communicate with Potential Participants

I am a US-bascd researcher, visiting India for data collection related to change management. I managed
to get your contact details from an HR professional from your organization when I recently attended
a Change Management conclave in India. Do you have a minute to talk?

Would you be comfortable talking to me about your experiences related to organizational change?
Confidentiality will be paramount in this case and our discussion will not be shared with anyone in
your organization. Anything you share will be used for research purposes only. O f course, at any
given point o f time if you feel uncomfortable, we can stop talking and 1 will destroy all documentation
regarding our discussion.

My information is available on my university’s website, and when we meet, I can also share with you
the Dean’s contact details, so that you can be assured o f my credentials. This study has been ap
proved by the Institutional Review Board (IRB) and I will show you the approval when we meet. The
approval clearly states that you have the right to stop at any time and if you find the study problem
atic, you can address your complaints to the Board.

If you are comfortable, I would like to meet with you and discuss this further. Can we do so?

Appendix 2 Participant Information1

Number Name Sex Age Industry

1 Neeraj Male 41 Manufacturing
2 Ratnadeep Male 46 Manufacturing
3 Neera Female 33 Manufacturing
4 Yash Male 46 Manufacturing
5 Chetan Male 40 Manufacturing
6 Janak Male 45 Manufacturing
7 Kaushik Male 52 Oil & Gas
8 Deepak Male 48 Oil & Gas
9 Raj an Male 41 Oil & Gas
10 Roopkumar Male 55 Oil & Gas
11 Ashok Male 39 Oil & Gas
12 Disha Female 33 Oil & Gas
13 Preeta Female 32 Pharmaceuticals
14 Shyam Sunder Male 55 Pharmaceuticals
15 Vedika Female 40 Pharmaceuticals
16 Inder Male 48 Retail
17 Kamala Female 42 Retail
18 Bhavya Male 34 Steel
19 Gopalan Male 48 Steel
20 Ishwar Male 40 Steel
21 Hasit Male 39 Steel
22 Zarna Female 48 Telecommunications
23 Urvish Male 43 Telecommunications
24 Teja Male 35 Automobile
25 Sameer Male 51 Banking
26 Utpal Male 50 Banking

1 Pseudonyms given to the participants for reasons of confidentiality

262 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

Employee Interpretations o f Change

27 Brijesh Male 38 Banking
28 Narayan Male 33 Banking
29 Subhajit Male 36 Broking Industry
30 Jasmine Female 30 Construction
31 Hasmukh Male 44 Construction
32 Mamita Female 38 Construction
33 Navjot Male 49 Construction
34 Subramaniam Male 36 Fertilizers & Pesticides
35 Rupa Female 35 Fertilizers & Pesticides
36 Shashank Male 42 Fertilizers & Pesticides
37 Kapil Male 38 FMCG
38 Jay Male 47 FMCG
39 Geetha Female 35 FMCG
40 Subodh Male 40 FMCG
41 Amritlal Male 33 Food processing
42 Santana Female 28 Food Processing
43 Joseph Male 49 Food Processing
44 Faraz Male 36 Food Processing
45 Prasanth Male 48 Food Processing
46 Anvesh Male 31 Food Processing
47 Divya Female 28 Health
48 Shrikant Male 55 Insurance
49 Vishwas Male 35 Insurance
50 Roshan Male 53 Insurance
51 A rpita Female 51 Insurance
52 Rupa Female 44 Insurance
53 Ravikant Male 37 IT Industry
54 Arup Male 33 IT Industry

Appendix 3 Guiding Questions for In-Depth Interviews

Initial Guiding Questions

1. Can you tell me about the change that your organization implemented?
2. When did you first hear about it?
3. What is your role vis-a-vis this change?
4. What was your reaction when you heard about the change?
5. How did other members in your organization react to the change announcement?
6. Did your reaction change over time, or did you continue feeling the same way?
7. Why do you think this change was implemented?
8. What do you think o f those involved with implementing the change?
9. If you had to provide input to those involved in the change, what would you tell them?
10. Can you share some of your key experiences and key organizational events surrounding

the change communication and change implementation?

The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016 263

Perceptions of Territoriality in Open Office
Environment: Impact on Situated Learning

Aneetha Rao Kasuganti & Pooja Purang

This study analyzed the effect o f
territoriality on situated learning
in open-plan offices. A cross-sec
tio n a l study was conducted on
112 p ro fessio n a ls fro m I T and
consultancy companies. Results
o f hierarchical linear regression
with bootstrapping indicated that
territorial behavior was a signifi
cant predictor o f situated learn
ing in open office environments.
Findings o f the study add to the
existing literature on facilitators
o f situated learning by identify
ing that feelin g s o f control and
belonging that territorial behav
ior invokes allow fo r greater in
te ra c tio n th ereb y in c re a sin g
knowledge sharing and prom ot
ing learning that occurs in ev
eryday activities on the job. The
results o f the study also provide
inputs to practitioners, guiding
them in the creation o f environ
ments that support situated learn
ing.

Aneetlia Rao Kasuganti (E-mail: aneethakasug
anti@iitb.ac.in) is Research Scholar &Pooja Purang
(E-mail: purang p @ iitb .ac.in ) is Professor,
Department of Humanities and Social Sciences, IIT
Bombay, Mumbai 400076.

Introduction

Changing technologies, expanding
markets and fierce com petition in the
rapidly changing business environments
have made learning a process by which
organizations develop the ability to face
change and gain com petitive advantage
(Argote, 1999; Stata, 1989). O rganiza
tional learning has therefore captured the
interest o f both researchers and practi
tioners; researchers attem pt to under
stand the phenomenon and identify what
promotes or facilitates learning in orga
nizations; practitioners seek to use this
knowledge to identify interventions that
w ould ensure prom otion o f learning,
th e re b y e n su rin g s u s ta in a b ility and
growth o f the organization. The practice
based view o f organizational learning
considers it as a social process, em pha
sizing its collective and situated nature.
According to this perspective, learning
occurs during activities and practices that
are shared and rooted in m ulti-dim en
sional organizational contexts comprising
individuals, their actions, relationships,
and the physical environment in which the
actions take place (Brow n &Duguid,
1991; Nova, 2005). Ittelson, Franck and
O ’Hanlon (1976) argue that individuals

264 The Indian Journal o f Industrial Relations, Vol. 52, No. 2, October 2016

mailto:anti@iitb.ac.in

mailto:purangp@iitb.ac.in

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