I do not like Facebook, so let’s get that out of the way. You will never read a Tweet from me. But while I may not be a big fan of social media, that does not mean it can be ignored. The numbers are staggering: Facebook has over 1 billion users. LinkedIn has almost 260 million. Even Twitter has 50 million active users every day and another 50 million who log in once a month. The tentacles of social media reach so far into so many aspects of our lives that, inevitably, social media issues have now invaded the workplace.
So often we see stories in the news about an employee who was terminated because the employer learned about an awkward or inappropriate posting on social media.
For example, there was a sheriff in Virgina who was running for re-election. Several employees of the sheriff’s department “liked” the Facebook page of the sheriff’s opponent. After the incumbent sheriff won the election, he fired the employees who had “liked” his opponent. The terminated employees filed a lawsuit claiming that the sheriff had violated their First Amendment rights. The court dismissed the lawsuit and ruled that “liking” someone’s Facebook page is is not constitutionally protected speech.
Even well-intentioned employees can be fired for Facebook postings. For example, a Walmart employee in Texas viewed the Facebook pages of several of her subordinates and learned that the group had attended a July 4th party after calling in sick to work.
Angry that the group had lied about being sick, she went onto one of the employees’ Facebook pages and berated the group for lying. The supervisor was later terminated for violating the company’s social media policy by publicly chastising her subordinates rather than waiting for them to return to work before addressing her concerns.
She filed suit against Walmart, but the lawsuit was dismissed. Just like the sheriff’s department employees in Virginia, this Walmart supervisor posted things on social media that were ruled not to be constitutionally protected.
Not all lawsuits involving social media turn out so well for employers. In fact, social media can create traps for the unwary.
There have been many cases in which an employer has viewed a job applicant’s Facebook page and then decided not to hire the applicant for whatever reason. Some employers have even “asked” job applicants to share their Facebook passwords so that the employer could view the applicants’ private information and photos.
As you might expect, these scenarios have generated many lawsuits filed by disgruntled job applicants. The outcomes in these cases have varied wildly, but one thing is common to them all: Each of the employers could have avoided any liability by following a well-drafted social media policy.
If an employer has a company policy against checking job applicants’ social media pages, then it can never be claimed that the employer committed unlawful discrimination because of information learned from Facebook. Some employers have even adopted policies requiring third parties to check job applicants’ social media pages and then forward that information to the employer without including things like race, age, disability and other information that could give rise to a discrimination lawsuit.
Times are changing, and social media is everywhere whether we like it or not. There will come a time, and soon, that we will look back and wonder why so many employers waited so long before adopting a social media policy.
Employers and employees alike will be better off once the adoption of social media policies has become standard practice.
Brian Huber is an attorney with Jeffers Danielson Sonn & Aylward, P.S. who advises businesses and individuals in a wide range of civil matters, particularly involving litigation. He is a former President of the Chelan-Douglas County Bar Association.