Dear Rita in HR:
I’m hearing horror stories from other executive directors about employees posting confidential information at Facebook, for instance, and lawsuits against nonprofits that looked at these sites as part of reference checks. I myself still pen letters by hand, and I know next to nothing about the pitfalls of social media.
Please help me out here!
Anxious and Ignorant
Dear Anxious: Your befuddlement and anxiety about social networking are not uncommon! I’ll try to answer your questions about employee use of social networking, and employer use of the web in checking references on job applicants. Because you mentioned Facebook, I’ll focus there, but my advice applies to all social networking, such as Twitter, LinkedIn, MySpace, YouTube and so forth. At the end of this article you’ll find a Sample Social Networking Policy.
Can we regulate what employees say on Facebook?
The answer is “sometimes” and “maybe.”
On social networking sites such as Facebook the line between work and non-work use can be fuzzy. What seems like harmless, fun gossip on a personal level can be damaging to the organization whose employee has posted.
Recently, one nonprofit manager posted on Facebook that his agency was considering layoffs and he included a photo of a co-worker leaning over the copy machine, tagging the photo with, “I’ll miss that Hispanic booty.” In just one post he revealed confidential information, and opened up the organization to sexual harassment and racial discrimination charges!
This kind of problem is most likely to occur when disgruntled terminated employees choose to “vent” online. Other common issues are complaints about management or co-workers, casual comments that suggest misuse of funds (“my boss took us all out for drinks”), or general charges against the organization (“that bathroom is dangerous!” or “the new play sucks”).
Nonprofits can lawfully discharge employees for revealing confidential information, for sexual harassment, for discrimination, and other prohibited workplace behaviors. In fact, federal and state laws require employers to take action to prevent or eliminate harassment both in the workplace and on social media sites. As with all types of workplace behavior, an employer may be liable for the employee’s behavior — if the employer has actual or constructive knowledge of the inappropriate conduct and fails to stop it.
So, nonprofit employers should not monitor Facebook pages of employees. But if another employee or anyone else reports information, the employer has a duty to investigate further.
Employees hurt themselves on Facebook
Also consider that an employee’s Facebook postings can be used as evidence for disciplinary action. Consider the employee who is on intermittent FMLA (Family Medical Leave Act) and who posts on her Facebook page that she is headed to the gym during her leave hours. Such information is typically discovered by co-workers who are her Facebook “friends” who then become incensed with her because they are covering her shift. Unless the employee is going to the gym under medical direction and not for recreational purposes, the employee can be disciplined for misuse of the protected leave. And the employer can now check with the doctor to clarify the conditions under which the employee is taking the intermittent leave to determine if the request for intermittent leave is being abused. Or consider the employee who claims that he is not allowed to take rest breaks. His tweets can provide evidence to the contrary.
Even if the employer discovers behavior it does not sanction, can an employer discipline employees for just being silly, immature or offensive on their own personal time for behavior that does not affect the workplace? This is where the line between professional and personal behavior begins to blur.
Criticizing the nonprofit on a personal Facebook page
And even if the behavior does involve the workplace, how the employer discovers the information on a Facebook page can affect whether the employer can discipline employees for improper online activities. Both state and federal laws regulate unauthorized access of electronic communications. The federal Stored Communications Act (SCA) restricts accessing a password-protected site without consent. In Hawaiian and New Jersey cases where employees maintained blogs on which they criticized their employers, the Court determined that when management accessed the blogs without permission, they violated the SCA. Many states have their own privacy protections. In California, courts use a balancing test to evaluate privacy rights, balancing the employee’s reasonable expectation of privacy against the employer’s business justification for invading that privacy. In one case, when a co-worker gave a manager the password to a site, the Court still found a privacy violation.
In addition, many state laws protect employees’ legal off-site conduct during non-working hours. And the National Labor Relations Act (NLRA) protects discrimination against employees who “discuss” the terms of employment, including wage and hour issues.
When determining whether to use blog information to discipline an employee, all blog indiscretions should receive consistent treatment. For example, a Delta Airlines flight attendant was fired for posting revealing pictures of herself in her Delta uniform on her blog. When this “Queen of the Sky” discovered that male attendants had posted similar revealing pictures with impunity, she sued for discrimination.
Regulating employee social networking practices requires employers to respond to unlawful social networking conduct without violating the privacy rights of their employees. Like most privacy-related questions, the answers are still evolving and require “a fine balance” between regulating work-related conduct and the privacy rights of employees. With the help of an employment specialist, employers should develop well thought-out policies to deal with the posting activities of their employees in work-related contexts.
Checking the Facebook page of a job applicant
Most nonprofit handbooks acknowledge state and federal anti-discrimination laws with language such as:
Our nonprofit is committed to providing equal opportunity to all qualified persons regardless of race, color, age, sex, marital status, pregnancy, religion, creed, national origin, ancestry, physical or mental disability, medical condition, sexual orientation, genetic information, citizenship or any other protected characteristic under state or federal law.
This equal opportunity language applies to job applicants as well as current employees. Since employers cannot ask an applicant about these protected characteristics, why would any employer check an employee’s Facebook page where these characteristics might show up? When an applicant fails to get invited for an interview, an employer who has looked at the applicant’s Facebook page pre-interview has invited a potential lawsuit for making its interview decision based on personal characteristics instead of the applicant’s job-related credentials.
Here’s where things get complicated: After the interview, most job offers are conditioned upon a successful background check to verify the applicant’s credentials. Surprisingly, about 53% of those background checks find a discrepancy involving the applicant’s information. (www.fakeresume.com). Employers can use third party vendors to conduct background checks, after the employee has been given written notice of the background check and signed a consent form. However, if an employer either wants to conduct its own background check or supplement the third-party background check with a social media search, it should attempt to limit the risks. First and foremost, the in-house “checker” must verify that she has the right person. Next, the nonprofit should draft a list of criteria it is searching for. The list should be consistent for all applicants (if two or more applicants are being checked out); and, the “checker” should not play a part in the hiring decision, but should report only on the legitimate answers to the pre-defined questions. For example, the “checker” should not report back to the hiring committee that the employee is gay, married, is a cancer survivor, is pregnant, etc. However, the “checker” could report back that the Facebook page indicated that the applicant does not have the degree he claims, was fired from his last job, has been convicted of a crime which he did not list on his application, or has posted disrespectful comments about his prior employer.
Again, this is a slippery slope that should be well-considered before utilizing social media to investigate the background of a prospective employee.
What about employees posting negative comments on our organization’s Facebook page?
When your nonprofit has a Facebook page, it is vulnerable to negative comments posted there by the public. When coming from someone who identifies himself or herself as a former employee, such negative comments may have more credibility. For example, I have seen angry ex-employees vilifying their former employers in the foster care system. An angry ex-employee could post that the nonprofit does not maintain proper oversight of its homes, even allowing pedophiles to care for children. Before these posts can be removed, the damage has been done.
Perhaps more dangerously, negative (or positive) comments made by your employees can be imputed to you as the employer. There have already been several lawsuits filed against employers as a result of blog postings, but the law is still in its infancy stage as to employer liability.
Hopefully, before too long we will have some legal guidelines on how to navigate the social networking phenomena as it relates to employment issues. But unless your nonprofit wants to be a test case, implement a well-thought-out policy that will educate your employees about the potential employment impact of using social media.
Editor’s note: A Sample Nonprofit Social Networking Policy was posted here but was removed in November 2011 because it was outdated. You can find an article with many of the same points here: “Firing Someone for Slamming Their Nonprofit Employer on Social Media.”
See other articles from Ask Rita in HR:
Pamela Fyfe is an HR attorney with the Nonprofits Insurance Alliance Group where she advises nonprofits on wrongful termination, wage & hour, discrimination, sexual harassment, and other employment issues — before they are sued — to help keep them out of court. Ask Rita in HR is a frequent column in Blue Avocado made possible by the Nonprofit Insurance Alliance Group.