Employers should not troll through employees’ Facebook accounts under false pretenses, according to David Fortney, an attorney with Fortney & Scott in Washington, D.C.
Speaking on Dec. 9, 2010, at the National Employment Law Institute’s Employment Law Conference in Washington, Fortney fielded a number of hypotheticals involving circumstances when employers might want to access employees’ social networking pages.
Suppose an employee has a picture on a Facebook page of the worker wearing a shirt with the company’s name on it while the employee flips the bird. “When a person deliberately does things degrading to an employer’s interest, there is room to evaluate and consider that action,” Fortney remarked.
The employer might have been apprised of this picture by a co-worker taking a screen shot of the page and sending it to the employer. In these circumstances, Fortney recommended conferring with the person who posted the picture on his or her Facebook page, letting the employee know the picture was brought to the employer’s attention, finding out what the employee has to say and directing the employee to remove the picture.
Social Network Harassment
A conference attendee asked what if an employee brags on his Facebook page about harassing a co-worker. Fortney said he would ask for the bragger’s consent to visit the page together with the employer and have the employee change the password immediately after they visit the page.
If the employee doesn’t provide consent, could the employer discipline the worker for not cooperating with the investigation? Fortney asked before noting that he did not think the employer could.
But an employee might receive harassing messages on his or her Facebook page and print them out for HR without asking the employer to visit the page under any false pretenses. Fortney said that there wouldn’t be a privacy problem if the comments were received on Facebook and turned over by the person who has the Facebook page where the comments appeared.
Another conference attendee asked whether the employer could review e-mail alerts, which describe comments posted to a Facebook page when the alerts are sent from an employee’s Facebook page to their work e-mail.
Yes, Fortney answered, because the e-mails are then part of the business’ records.
How about an employee who claims that he or she is disturbed about something, takes time off, and then has postings on Facebook that suggest the worker isn’t so distraught after all? For example, what if the employee notes that they were out windsurfing over the weekend and said it was fantastic.
An employer that investigates this is somewhat stymied if it cannot get consent from the employee to view their web page, Fortney responded. But the employer arguably might make an adverse inference if the employee declines to grant the employer permission to visit the page, he added.
Another conference attendee asked what if a worker makes threats of workplace violence on a Facebook page. “An employer should take all reasonable steps to get to the bottom of this immediately,” Fortney said, but he cautioned that “it still is not right under false pretenses to penetrate that site.”
Fortney’s approach would be to ask the employee for access to the site and, if the employee denies permission, to turn to local law enforcement.
Fortney said he would not egg on the co-worker who discovered the violent comment to produce more, which prompted one of the conference attendees to say that it seemed like the employer was stuck between choosing which lawsuit they would wind up facing, one for an invasion of privacy, harassment or failing to provide a safe workplace.
Fortney responded that the truth is an employer might wind up being sued for “all of the above.”
Allen Smith, J.D., is SHRM’s manager of workplace law content.