Social Media Pitfalls for Employers

    Jul 17, 2019

    By David L. Barron

     
     

    Managers: is it OK to “friend” a subordinate on Facebook? Are you responsible for an employee’s harassing tweets? Labor and employment attorney David L. Barron answers these and other tricky social media questions

    The era of social media is here to stay, and employees are just as likely to be tweeting, texting, and messaging each other on Facebook as conversing at the water cooler. Although each workplace is different and there is no “one size fits all” approach to social media, it is critical for employers to recognize the risk in the area and, at a minimum, provide some reasonable guideposts for employee conduct. At the very least, all harassment and discrimination policies should be updated to prohibit offensive communications on social media, which is increasingly becoming a problem. 

    Cyberbullying and Textual Harassment
    Employer liability for statements made on Facebook or other social media forums is an emerging area of the law. Online bullying and harassment by coworkers can affect an employee at work, and employers ignore such complaints at their peril. Where the courts will eventually draw the line between off duty gossip and actionable workplace harassment is still an open question, and employers are advised to take all such claims seriously.

    With the rise of cyber-bullying and “textual harassment,” it is critically important for all employees to understand that company policies extend into cyberspace and social media forums.

    No employer wants to be the “Facebook Police,” but employees are increasingly making complaints to human resources departments and management over offensive or harassing online statements. Employees need to understand that it is not acceptable to use a racial slur online in describing a coworker or to otherwise violate company rules.

    If an employee makes a complaint about online activity, it should be investigated just like any other complaint of harassment or discrimination. However, an investigation can be hampered by the lack of access to social media sites. One solution to this problem is to request that witnesses provide screen shots or copies of offending text messages. The employer can also ask that an accused employee provide access to his or her Facebook page for the limited purpose of verifying whether allegations are true. If such access is refused, consider taking statements from employees who may have seen the relevant statements made on a social media site. Such evidence can be used to warrant disciplinary action, if appropriate.

    Facebook Friending for Supervisors
    Although being friends sounds innocent enough, it is becoming increasingly clear that there are real liability issues associated with managers “friending” subordinates. For example, a manager who discovers on Facebook that an employee has a serious illness like cancer could later be accused of unlawful discrimination. There are all types of information boldly displayed on social media about which it would be unlawful for a manager to inquire in the workplace.

    In addition, a supervisor who friends subordinates in a discriminatory fashion (i.e., only members of the same race or ethnic group) runs the risk of being perceived as unfair, or worse, a racist. Since befriending some but not others you supervise is such a risky proposition and could lead to hurt feelings, many companies have advised supervisors to refrain altogether from friending those in a direct line of supervision.

    What About Employee Privacy?
    Obviously, management should never hack or gain access to employee social media sites in violation of security protections or permissions. If a site is viewable by the public, however, an employee has no right to privacy and no permission is required. Gray areas arise where a co-worker who has access to another co-worker's site brings information to management without the other employee's permission. Most courts would agree that an employee allows access to his or her Facebook page at his own peril, and if someone shares that information with an employer, that is a risk assumed by the employee granting access. Simply stated, an employer need not ignore evidence of misconduct because it comes through an indirect source.

    Similarly, texts, tweets, and electronic communications can become the subject of a workplace investigation if a complaint is made. With everyone from high school students to congressmen sending racy pictures to members of the opposite sex, it is only a matter of time before every employer faces this issue. One thing to keep in mind is that an employer can lawfully search employee-owned cell phones only if the employer provides notice in its policies that employees have no expectation of privacy for information stored on these devices. As long as such notice is provided, an employer has the right to search a cell phone, just is it would to search a vehicle or purse if a violation of policy is suspected.

    Other Emerging Legal Issues
    There are a number of emerging legal issues that have created headaches for employers.  First, some postings on social media sites have been deemed by the National Labor Relations Board (NLRB) to be protected activity. Firing an employee over an online social media complaint about wages, a “jerk” boss, or employment conditions, for example, can lead to a lawsuit. Some states also have laws protecting employees from discipline for lawful off-duty conduct. Thus far, it is unclear whether these laws will apply to social media activity.

    Additionally, employers should exercise caution in setting up their own social media pages and allowing nonexempt employees to monitor and update those pages. Blogging, tweeting, or posting company related information online is considered work, and hourly employees must be compensated for this time, including any applicable overtime
    In sum, having a social media policy is no longer something that is only relevant for high tech companies and large corporations. Employers of all sizes and industries face substantial legal risks regarding social media, and they should review this emerging area to identify what guidelines should be implemented to protect themselves and to avoid costly lawsuits.

    About the Author(s)

    David L. Barron is a labor and employment attorney at Cozen O' Connor.