Online social networking, and its capacity to connect our professional lives to our personal lives, have introduced a variety of new legal issues in the workplace – issues that we explore regularly in Socially Aware. Many managers and supervisors have connected with subordinates on social networking sites, and have likely wondered about the practical and legal implications of doing so. Applying long-standing legal concepts to this new context, a number of potential issues stand out.
First, when a supervisor connects with a subordinate on a social networking site such as Facebook or Twitter, that supervisor may be put on notice of legally protected information. For example, an employer may learn of an employee’s political affiliation, religious beliefs, sexual orientation, or health information. If an adverse employment decision is made against an employee after the employer discovers such information, it may appear as though the action was motivated by unlawful discrimination. Managers may also see employees’ job-related postings, and find themselves in the difficult position of trying to determine how to address poor judgment without running afoul of legal protections for employee speech. (See our October 2011 issue of Socially Aware for more information regarding such protections.)
Second, employers could become more vulnerable to discrimination and harassment claims based on a supervisor’s social media-related interactions with subordinates. For example, a supervisor might be discriminatorily selective with respect to those subordinates whom he “friends” via Facebook. Although a discriminatory “friending” pattern may be insufficient standing alone to establish legal liability, it might be used as a piece of corroborative evidence against the employer.
Further, people often say things in a personal capacity that would not necessarily be appropriate in the workplace; if a supervisor exhibits a sexist or racist point of view on his Facebook page, for example, this could add fodder to a claim of discrimination or harassment. On the flip side, supervisors may have an affirmative duty to take action if they learn of harassing social media-related postings that affect employees.
Finally, managers should consider that subordinates may feel pressured to accept a “friend” invitation, and that, if such invitation is accepted, the manager may end up learning more than he or she wanted to know about the accepting employee’s weekend plans, job-related gripes, status updates and so forth. In some cases, a manager may find that less is more, when deciding whom to “friend” at work.
We here at Socially Aware do not want to be known as killjoys; we are big users of social media, and are loath to discourage “friending” of one’s colleagues or anyone else. But with the explosive growth of social media blurring the traditional boundaries between one’s professional life and one’s personal life, employers should at least be aware of potential risks issues in “friending” employees. One does not need to be Nostradamus to predict a coming wave of employment-related claims focusing on social media-related interactions between supervisors and subordinates.