Friday, March 4, 2011

Social Sleuthing: Look Before You Leap

In my last post, I cautioned employers about using information that it learns about its employees through social networking sites. A few more thoughts on that. With employees posting running accounts of their daily activities on social networking sites, it’s quite tempting for employers to want to take a peek at what employees are saying about how they are spending their work day or what they’re doing on a day when they are supposedly missing work because of an illness or injury. It’s even more tempting for employers to want access to this information when the employee in question has been a problem employee (i.e. low productivity, many last minute absences, frequently “sick” on Friday afternoons or beautiful summer days . . . ).

Although this information may in fact be relevant and helpful to employers, how do employers access this information? If you’re trying to obtain the information after the fact, say when you’re in the midst of litigation, the answer’s pretty simple - you obtain the information through discovery requests. In most cases, though, you’re going to want to get your hands on this information while the events are occurring and use it to justify adverse action against the employee in question.

That leaves the employer with a few options: have someone in management “friend” the employee, ask an employee who is already a “friend” with the employee in question to allow you to have access to his or her account, or ask an employee with “friend” status to print a screen shot of the relevant information. All options pose their own set of problems, although I think the last option might pose the least risk to the company.

The first option, having a management employee obtain “friend” status, could result in the company learning information that could result in future claims of discrimination or retaliation. For example, the management employee reads about the employee’s mother’s recent cancer diagnosis (potentially genetic information protected under GINA) or about the employee’s recent conversion to Islam. Shortly thereafter, the employee suffers an adverse employment action (completely unrelated, of course). The documentation supporting the adverse employment action is weak. The employee subsequently files a charge of discrimination. Although the employee may have difficulty showing a causal link between the protected class information and the adverse action, given the time and expense involved in defending a charge or lawsuit, I’m sure your company would just as soon avoid the situation altogether. Given the risks, it’s at least worth considering whether your company should adopt a policy that prohibits supervisors from being social network “friends” with subordinates.

As you may have seen from news and commentary, the second option, asking an employee with “friend” status to let you log in as that individual, may result in legal claims as well. The employee with “friend” status might argue that they felt coerced into allowing you access, creating a claim for the employee under the Stored Communications Act (“SCA”). Even if that isn’t the case (the individual volunteered to give you access), there is still risk to the company. Just as in the first option, the employer might find itself obtaining a lot more information (either about the targeted employee or the individual who gave the employer access) then it set out to obtain, some of it protected class related – potentially resulting in a discrimination claim. The employer might also find itself trying to defend against an invasion of privacy claim. The employee who granted you access to her account might later claim that you went beyond the intended scope and invaded her privacy. The target employee might claim that the information that you accessed was private (password protected and limited to certain preapproved individuals) and that you invaded his privacy and violated the SCA.

The third option is just a slight variation of the second option. By getting a print out of the post at issue, the employer will significantly reduce the risk that it will have to defend against a viable claim of discrimination or invasion of privacy by the employee with “friend” status because it wouldn’t have accessed that employee’s personal posts. This option would also reduce the risk that the employer would obtain unwanted protected class information about the targeted employee because the access is limited. Of course, in order for this option to work, you’re relying on the fact that the employee with “friend” status either came forward with the information or would be willing to look around for it. Not sure how likely it will be that you’ll find such a cooperative employee.

Some closing thoughts. Although this area of law is still developing, the outcome will certainly depend on specific facts and circumstances of the situation. Before employers embark on this information-gathering technique they should think carefully about whether the benefits from obtaining the information really outweigh the potential risks. Employers should also be cautious about how much they rely on this type of information when making adverse employment decisions. It’s certainly possible that an individual with an axe to grind could hack into the targeted employee’s social network account or even set up a dummy account.

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