—Megan Ruwe, Employment lawyer at Winthrop & Weinstine
Imagine this scenario: While searching the Internet, you come across a Facebook posting authored by one of your employees that includes derogatory statements and inappropriate pictures. You wish you had seen the blog before you hired the employee. What does this mean to you as an employer? What can you do about it now?
As technology continues to creep into our personal lives and we rely on social media sites such as Facebook and Twitter as primary forms of communication, an increasing number of employers have encountered situations similar to the one described above. In an effort to control these situations, many employers now monitor employee use of social media websites. Employers must be aware, however, that monitoring applicants and employees over the Internet is not risk-free. In certain situations, federal, state, or local laws may protect employees from discipline or termination due to their Internet activities.
Obtaining Information About Job Applicants On Facebook and Twitter
To alleviate concerns about job applicants, many employers search social media websites to obtain information about applicants. Although this practice is common, employers that rely on social media websites to obtain information regarding applicants’ employment histories and personal lives should proceed with caution. Any picture of an applicant obtained on the Internet could subject the employer to a discrimination lawsuit for the failure to hire the applicant because of his or her race, ethnicity, gender, or any other protected classification that might be perceived from the picture. Likewise, searches that uncover an applicant’s membership in organizations based on protected classifications such as religious affiliation, national origin, disability, sexual orientation, or even the armed forces may subject an employer to a lawsuit if the employer decides not to hire the individual. To minimize the risks of such searches, employers should be consistent when reviewing information regarding job applicants; if you conduct a search for one applicant, do so for all.
Employee Postings May Cause Risks to Employers
Once an applicant becomes an employee, the contents of the employee’s pages on social media websites may expose an employer to increased liability for various employment-related issues. Employers should take note of any postings by an employee that include words, pictures, or even video footage that contain inappropriate content. If an employee uses the company’s computers or Internet service to make an inappropriate posting that violates any policy of the employer, the employer may discipline or discharge the employee for violation of the policy. If the posting does not violate any workplace policy, the employer still may be able to take action after considering the following:
- Discriminatory or Derogatory Postings. If a co-worker views a discriminatory or harassing posting and complains about it to the employer, the employer should treat the complaint as it would any other complaint of harassment; upon receiving the complaint, the employer is charged with knowledge of the alleged statement.
- Threats of Violence. An employer should treat an Internet threat of violence as it would treat a threat delivered through any other medium. The employer must investigate threatening social media postings and take disciplinary action up to and including termination of employment.
- Disclosure of Confidential Information and/or Trade Secrets. Employees who discuss their daily activities at work may inadvertently disclose confidential company information. Some employees may even be bold enough to post formulae, drawings, pricing information, or information about customers and vendors on various social media websites. If information is legitimately confidential, proprietary, and/or trade secret, or if the disclosing employee has executed a confidentiality agreement, the employer may be able to take disciplinary action against the employee. However, if the employer has not implemented measures to keep the information secret, the information may not be considered confidential, thereby reducing the options available to the employer.
- Defamation. If an employee’s disparaging posting appears on a company-sponsored Facebook or Twitter page, identifies the employer, or suggests that the posting is made on behalf of the employer, the employer may be subject to liability. Once an employer becomes aware of the posting, it can take action consistent with its general policies and practices in response to disparaging employee statements that are publicized to the general public.
- Postings With Illegal Content. Certain Internet postings, such as the display of pornographic photographs of children, may violate federal, state, and local laws. Employers should contact appropriate law enforcement authorities upon discovering any such unlawful Internet activities.
- Exception for Certain Lawful Activities. Several states limit a private employer’s ability to discharge an employee for engaging in lawful activities outside of work, such as smoking or drinking alcohol. Employers should be aware of any applicable laws before taking action based on an employee’s social media posting.
Complaints or Reports of Inappropriate or Unlawful Behavior
Although employers may generally take action based on inappropriate social media postings, they must be careful before taking any adverse action based on postings which could be considered a complaint or report of inappropriate or unlawful behavior. This includes, without limitation, complaints of discrimination or harassment, unpaid overtime or other wage and hour violations, and complaints of unlawful activities that could trigger an employee’s whistleblower protection.
Minimizing the Risks of Employee Internet Postings
To help protect against the inevitable risks created by social media postings, an employer should implement a policy that specifically addresses Internet use, namely the use of social media websites. Employers should also consider training employees to understand and abide by the Internet policy. Another recommendation for employers is to consider implementing security procedures for monitoring employee Internet usage, including, without limitation, blocks on certain Internet sites and audits of company technology. By taking such steps, employers can help minimize the risks associated with employee use of social media websites.