The Developing Law Governing Employee and Employer Rights Relating to Use of Electronic Media Within and Outside the Workplace

Employees are using electronic media at an increasing rate to communicate with others both in and out of the workplace. While email, social networking sites, blogs, text messages, and online videos may seem to present new and complex challenges for employees and employers, the decisional law suggests that the key to understanding issues presented by electronic media use is to reason by analogy to more “traditional” means of communication. For example, an email string between two people or among a group may be viewed similarly to an in-person conversation; the former is just memorialized in writing. A comment posted on an employee’s Facebook page may be treated like a verbal comment made by an employee to friends and coworkers. The same fundamental questions come up in the cases involving traditional or electronic communications: What was communicated? Who communicated it? When was it communicated? To whom was it communicated