MCLE Self-Study Article: The Attorney as Employer: The Law Regarding Employee Privacy in Social Media Posts

By Neil Pedersen, Esq.

The attorney employer has a legitimate interest in hiring the best employees possible, and in monitoring the employees’ compliance with both internal rules and policies regarding the use of social media, and the overall firm duties to its clients and to the Rules of Professional Conduct. To that end, review and monitoring of employee and prospective employee social media posts can be very helpful.

Social media has become part of the fabric of our society, including those who work for and apply to work at law firms. Seven years ago, less than 10% of Americans were part of a social media site. Today, 69% of all adults with online access are part of a social media site, and over 90% of those between the ages of 18 and 29 participate in social media. As of February of 2012, 89% of social network site users had a Facebook account, which translates into 66% of all online adults.¹

The rise in the use of social media has also led to a change in how our employees relate to one another. One of these changes has been referred to as “cyberdisinhibition” – an increased willingness to behave online in ways that would not be attempted in person, making users bolder and driving them to inappropriate online behavior.² A recent study and poll has revealed that over 42% of the respondents said they feel less inhibited interacting online than face-to-face and over 30% said that online interaction let them do something they have been wanting to do.³ This decrease in social inhibitions can lead to social media posts that reveal more about a person than they would like the general public to know, even though they are willing to share that part of their personality with family and friends.