When It Comes To Facebook, What You Know May Hurt You
Suppose you have a supervisor who takes an avuncular interest in one of the up and coming employees he manages for your credit union. He likes him so much that he tries to set him up with his daughter. The employee politely refuses the offer, but the daughter ends up friending him on Facebook. She tells her father that one of the organizations the employee has liked on Facebook is dedicated to advocating for same-sex marriage.
When the supervisor, who is deeply religious, turns hostile against the employee, can the credit union be sued for discrimination, particularly in a state like New York that now bans discrimination based on sexual orientation? Yes it can be.
This hypothetical is not a hypothetical at all. A great article in this month’s Inside Counsel magazine highlighting the legal challenges faced by social media in the workplace noted a case in which the Library of Congress is being sued by an employee who claims he was discriminated against after a supervisor surmised he was gay based on his Facebook page.
Now, for the record, I don’t get Facebook and I never will. Why people want to post the minutia of their lives to scores of casual acquaintances I will never know, but the fact is they do. As reckless as I think some people are with their Facebook accounts for acting as if this information is private, employers are better off using that as their working assumption as well.
Why? The simple legal answer is by accessing someone’s Facebook page, you are put on notice regarding information that you have no right taking into consideration when dealing with an employee and the mere act of doing so may create a factual dispute in a future lawsuit. For instance, let’s say you find out that an applicant belongs to a local mosque and an equally qualified candidate belongs to the Methodist Church. No good can come from knowing any of this.
I talked about this with a friend of mine recently, who doesn’t ask for passwords but will see what he can find on an applicant’s Facebook page. His argument is that good employer due diligence includes knowing everything about a potential employee’s judgment and character: a picture of him taking a hit from a bong in his college dorm speaks volumes about both. However, a good enough interview process should give you a means to fairly assess an applicant. We’ve done this for hundreds of years after all, without Facebook.
There’s also a legislative component to this issue. An increasing number of states have either passed or are considering legislation limiting employer access to employee social media. Keeping in mind that the views I express are my own and not necessarily those of the Association, it is time for New York and maybe even the federal government to pass such legislation. As silly as it is for employees to think that they have an expectation of privacy on Facebook, the world is changing and employers need bright line rules to delineate when they cross the line between employer due diligence and voyeurism.