Can You Look at Your Employees' Facebook Pages

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Editor’s Note: As reported on NYTimes.com on November 8, 2010, the National Labor Relations Board has filed a complaint against American Medical Response of Connecticut, which fired a unionized worker who had disparaged her supervisor on Facebook. Among other things, the National Labor Relations Act grants employees (unionized or not) the right to discuss working conditions with co-workers. The NLRB said the company's policy on social media activity – including prohibiting disparaging comments about supervisors -- was "overly broad." The company denied the allegations.

In this electronic world, just about everyone has a Facebook page, or a MySpace page, or a LinkedIn page or some other social networking connection such as a blog or following on Twitter. When it comes to your employees, can employers read their personal posts, blogs and tweets without running afoul of the law? The answer is a very lawyerly “maybe.”

While employees may think that they have certain privacy rights, including rights under the First Amendment, they are generally wrong. First of all, the First Amendment applies to actions the government takes against its citizens, not actions employers take against their employees.  Next, why on earth would someone have an expectation of privacy in something they put on the Web for all to see? In short, if you can view something on the Internet without entering in any special passwords or needing individualized permission to view it, chances are the author cannot object to the fact that you saw it. What you do with that information, however, may be another story.

Therefore, there is generally nothing illegal about looking at an employee’s Facebook page, if that Facebook page is generally accessible on the web to all. Employers would have a layer of protection, however, if the viewing was being done for a legitimate business reason and not just idle curiosity. For example, if the employee had some curious absences and the employer wanted to know if the employee was posting their whereabouts (“Great sale at Macy’s today!”  “Gotta love the surf today!”). Or if the employer had suspicions that the employee was engaging in unfair competition with their employer. It is surprising what employees will post on a public Facebook page—one employer saw brazen competition and the announcement that an employee was the “President” of a directly competing company!

Problems can arise when information is password-protected, as one company found out the hard way by losing a legal battle. An employee, we’ll call her Sally, told her manager that another employee, we’ll call him Robert, had created an employee-only MySpace page where he was badmouthing the company and the managers. The manager “convinced” Sally to provide the top-secret password, accessed the site and fired the employee. Only through the ensuing litigation did he discover that he had violated a computer-related statute prohibiting unauthorized computer access. Sometimes it pays to call your employment lawyer before taking actions, so you can understand the risks involved.

Other issues can arise when an employer learns something from an employee’s Internet writings (such as the employee’s age, national origin, sexual orientation, disability, religion, etc.) that the employer did not otherwise know, which could form the basis of a discrimination claim. How would the employee know that the employer had gone on the site? The employee calls in sick on Friday; employer checks Facebook and finds that the employee is at a pre-Gay Pride Parade party and not actually sick. Now what? Though not yet covered by federal law (although such a law is pending in Congress), sexual orientation is a protected category in many states. Thus, employers may want to think twice regarding checking those sites and need to be cautious with how they use the data obtained.

Contributor:   Devora Lindeman

Devora L. Lindeman is a Partner with Greenwald Doherty LLP, a labor and employment law firm exclusively representing management in relationships with employees and unions, with offices in New York, New Jersey, and Connecticut. She provides management training to employers and employer associations on these and other topics. Lindeman joined Greenwald Doherty in 2007 with many years experience in management-side labor and employment law. Previously an attorney at Proskauer Rose, LLP, she divided her practice between human resources consultation and court and agency litigation. Lindeman spent a number of years at a labor and employment boutique firm prior to that. Since she has a business background, she understands employers’ needs and works with them to creatively solve employee issues. Much of her practice involves counseling clients on issues that arise daily, such as responding to workplace discrimination or harassment complaints, dealing with wage and hour compliance issues, accommodating individuals with disabilities, dealing with leave laws such as the Family and Medical Leave Act and routinely addressing the other myriad of situations that arise on a daily basis when one has employees. She also reviews and drafts employee policies and handbooks and assists employers with employee agreements, such as non-compete and confidentiality agreements, as well as those involved with reductions in force. Lindeman lectures to trade and business associations on various employment law topics.

Lindeman received her undergraduate degree from Sarah Lawrence College and graduated from Rutgers School of Law—Newark with Highest Honors. During law school, she served as the Notes & Comments Editor for the Rutgers Law Review. On graduation, she was inducted into both the Order of the Coif and the Order of the Barrister. She then clerked for the Honorable Stanley R. Chesler, U.S.M.J., in the District of New Jersey. Lindeman has practiced management-side labor and employment law ever since. She is admitted to practice in New York and New Jersey.

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Report Abuse   anandkarat 07/23/2010 2:49:02 PM EDT "Seventy percent of U.S. recruiters report that they have rejected candidates because of information found online, like photos and discussion-board conversations and membership in controversial groups." Here's an interesting publication by Jeffrey Rosen in the NY Times. Replies (1)   Report Abuse   anandkarat 07/23/2010 2:50:31 PM EDT http://www.nytimes.com/2010/07/25/magazine/25privacy-t2.html Post a reply Sign in or Sign up to post a comment

Report Abuse   socialmediaguru 07/07/2010 5:11:34 PM EDT Social media privacy in the workplace is a tricky issue. There's an excellent whitepaper download from Palo Alto Networks, “To Block or Not. Is that the question?” here: http://bit.ly/d2NZRp. It has lots of insightful and useful information about identifying and controlling Enterprise 2.0 apps (Facebook, Twitter, Skype, AIM, etc). Enjoy! Replies (0) Post a reply Sign in or Sign up to post a comment