The Employment Law Risks of Social Networking
Long before the Facebook revolution, the general advice for employers was that managers could be friendly with employees, but they really shouldn't be friends with them.
But from "sexting", to blogging, to Twittering and social networking, the line between work and personal communications is becoming increasingly blurred - which has the potential to create major legal risk for employers.
Too Much Information!
The main problem with social networking in the workplace is that a ton of the information people post about themselves is extremely personal - religious affiliation, sexual orientation, political views and even details about personal struggles, like coping with alcoholism, cancer or AIDS.
These sites also tend to chronicle a person's social life - who they're dating, who they hooked up with last night and how bad their hangover is this morning.
Now tack on the issues that arise from the style of communication in the social networking world. It's instantaneous, with no censor, no filter and no self-monitoring. An indelible electronic footprint of everything is left behind for the employee, the manager, the employer and potentially, a jury -- from racy pictures of that crazy convention in Vegas, to ardent posts about how someone feels about immigration, US foreign policy in Palestine, abortion rights or gay marriage.
The Seven Biggest Legal Risks
In today's blog post, I wanted to outline the seven biggest legal risks that can arise when employees and managers become virtual "friends":
1. Employees "forget" they have "friended" their managers, and post content about how much their job sucks, or how much they hate the boss. When this kind of information is mistakenly shared, it makes for a very uncomfortable situation that can jeopardize careers.
2. Managers can also have a short memory about who is on their friend list, and make inappropriate comments about people they supervise. These kinds of postings at best make the manager seem like a jerk, and at worst, could serve as evidence of harassment, discrimination, bullying and retaliation.
3. Employees disclose information about their personal antics that calls into question their credibility and capability on the job - like referencing recreational drug use, or sexual promiscuity. In some instances, this information could be so severe, that a manager has as duty to take action. (For example, imagine an employee who drives a truck for a living making constant references to excessive binge drinking.)
In other instances, a manager taking action based on this kind of personal information could violate privacy laws. These "lifestyle discrimination" laws protect employees from suffering adverse employment action for what they choose to do in their personal lives that does not have a meaningful impact on the workplace. (Imagine a manager demoting an employee because they learn from MySpace posts that the person enjoys pornography during their free time.)
4. Managers disclose information about their personal antics that calls into question their credibility and capability on the job. When managers over share, employees can lose both confidence in and respect for their boss, which has an obvious impact on morale and productivity. Managers expressing personal opinions about volatile topics like religion, race and immigration can also serve up as potential evidence in a workplace harassment or discrimination claim.
5. Employees disclose information which once known to a manager, creates messy complications when it comes to important employment decisions. Imagine this scenario. An employee posts that her cancer treatment over the weekend went well, she is feeling better and thanks everyone for their kind messages. The manager's reaction is pure surprise, as s/he never knew the employee had a medical issue, let alone cancer. Problem is, this employee has performance problems and the manager was planning to discipline her on Monday. Is there now a risk of a discrimination claim under the Americans with Disabilities Act?
Discrimination claims are based on manager actions, and absent direct evidence of discrimination or unlawful decision making, employees and their attorneys rely on what the manager knew about the employee.
6. Employees disclose information which calls into question whether the manager is now "on notice" of a workplace issue, obligating the employer to take action. For example, imagine that an employee posts a comment about not sleeping well and feeling sick. She Tweets that she is really anxious and stressed out about the persistent harassment and mistreatment she's enduring because she is Muslim. Is this happening at work? Does it constitute a complaint? Does her manager need to follow up with her? Is she potentially referring to her manager?
7. Managers originate the friend request, which creates special risks. First, there's perceived pressure and potential retaliation. An employee who receives a friend request from a boss may feel an obligation to say yes, and may fear retaliation if she or he says "no." Imagine that an employee who ignores a friend request from his boss is subsequently disciplined. He may assume it's retaliation for giving the boss the virtual cold shoulder.
Second, based on a recent jury verdict against the restaurant chain Houston's, a friend request from a boss could be a potential violation of the Stored Communications Act. The Act prohibits unauthorized access to electronic communications stored at a third-party service provider, like Facebook. The gist of the Houston's case is that if the request comes from a direct supervisor, and the employee senses potential negative repercussions to saying "no," the supervisor's access to the employee's private friend network may be considered coercive and not consensual.
Practical Steps to Preventing "Friending" Fiascos
So what can you do? Given this long list of risks and problems (and I could provide many more!), my advice is that employees and managers should not friend each other.
If the friend request comes from an employee, the boss has a few options. They can simply ignore it. In small, intimate work settings, however, this may not be feasible, and it can also create unnecessary awkwardness on the job. The best approach is to politely decline, saying that to be as fair as possible to everyone at work, and to avoid any concerns about favoritism, the manager has just made it a policy not to join employees' social networks.
Better yet, employers should have a policy on social networking which discourages or prohibits managers and employees from "friending" each other. Then managers can simply refer to the policy.
If an uninformed or unwise boss originates a friend request to an employee, the subordinate has a few options. Again, one is to ignore it. But as already mentioned above, this can be awkward in more intimate work settings and result in unnecessary tension and distraction. The better option is declining with a brief note thanking the boss for the friend request, but explaining that the employee would like to maintain some separation between their work and personal life, and that their Facebook profile contains content unrelated to and not necessarily appropriate for the job.
The Bottom Line: Policies & Training
Employers are playing catch up when it comes to updating their IT policies. Often, managing policies is a cumbersome and time-consuming task. According to an August 2009 survey by the Society for Corporate Compliance and Ethics, 24 percent of employers have had to discipline an employee for activities on sites like Facebook, Twitter and LinkedIn, but only 10 percent have a policy that expressly addresses the use of social networking sites in the workplace.
In terms of my advice for employers, I would highly recommend having a policy that clearly communicates employer expectations and rules regarding technology use at work. Most employers have policies that address basic e-mail and Internet use, but these policies need to be updated to address the latest wave of technical innovations, including high-powered smartphones, blogging, Tweeting (microblogging) and social networking. Specific to the issue of social networking, I recommend a policy which strongly discourages or prohibits managers from "friending" employees. The policy should also specifically state that any employee may reject any friend request without repercussion. This helps to address potential concerns about retaliation and potential coercion, as detailed above.
Finally, it's essential for employers not to rely solely on written policies when it comes to managing technology in the workplace. The rules and guidelines need to be brought to life with engaging and interactive training that is memorable, realistic and compelling.
Nobody reads policies. Policies don't actually impact behavior. For an issue like social networking, online training is ideal, because the training program can actually simulate the very issues an employer needs to address.
To learn more about the impact of social networking and technology in the workplace, contact NAVEX Global about the training courses specific to that issue in various languages and customizations. Also, download our Ethics & Compliance: 14 Emerging Trends in 2013 whitepaper for more social media and other pressing issues facing organizations globally.
And before you accept that next friend request from a work colleague, or from someone you manage, think twice.
