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.
