Posted: August 12, 2011
Friending your co-workers
Watch out for the pitfalls of FacebookBy Troy Rackham, John Balitis and Carrie Pixler-Ryerson
Any good comedian knows he must tailor the joke for the crowd. The same approach is true in the work environment. A supervisor might comment on a football team cheerleading squad in different ways to his bar buddies than he would to a subordinate at work. Unfortunately, to a large extent, Facebook and other social media outlets do not provide the tools by which to discriminate which joke gets told to what audience. This can lead to many pitfalls for employers.
If a supervisor's sexually inappropriate jokes told around the water cooler at work could result in legal liability for the employer, then it is likely a bad idea for the supervisor to send Facebook messages to subordinates with the same inappropriate jokes. In fact, according to one recent survey, nearly 50 percent of employees felt uncomfortable when "friended" by subordinates, co-worker peers, and/or their supervisors.
It is easy to understand why. Suppose A posts pictures of herself at the beach in a bikini. What if B, A's supervisor, is Facebook friends with A and comments to A in a work email about how great A looks in her swimsuit? This use of social media could create a hostile work environment and lead to a discrimination action.
Similarly, consider a scenario where C posts a video of her at a gay pride parade. D, who is C's supervisor and Facebook friend, sees the images. If C later is subjected to discipline or terminated at work, C may attempt to claim that the adverse employment action was discriminatory because of C's sexual orientation or gender. Social media can create exposures to employers that did not exist prior to the widespread use of social media. Employers need to be cognizant of these risks and provide reasonable safeguards against them.
Additionally, supervisors and employees should be reminded that federal and state non-discrimination statutes can apply to communications between an employee and his or her coworker or supervisor done during non-work hours and online, not just in person at the office. Likewise, supervisors and employees must understand that online comments and images are permanent, can be de-contextualized and often may be misunderstood or misconstrued. Consequently, it is helpful for employers to have social media policies and to train their supervisors and employees on the use of social media and their social media policies.
Only 22 percent of employers have a policy in place to control their employees' use of social media. This statistic is an alarming concern, given the significant risks and consequences that exist from the use of social media.
Employers would certainly be wise not to simply copy a social media policy off the Internet. The policy for a small employer may be different than that of a large employer. For example, a policy for a school may prohibit staff from "friending" students while a for-profit business may encourage staff to engage with clients and potential clients through social media as a form of professional networking - albeit with guidelines concerning proprietary and confidential information in place. There will be more to come on this topic as our Social Media Series regarding workplace issues continues.
Troy Rackham holds the highest rating awarded by Martindale-Hubbell® Law Directory as an AV® PreeminentTM Lawyer. Selected as a "Rising Star" by Colorado Super Lawyers in 2009, 2010 and 2011. His practice includes employment and civil rights law, legal and medical malpractice and other forms of complex litigation. Reach Mr. Rackham at firstname.lastname@example.org .
John Balitis practices in the labor and employment area with Fennemore Craig representing employers in arbitration, litigation and administrative proceedings. He can be reached at email@example.com mail to: firstname.lastname@example.org .