Basing Employment Decisions on Facebook Activity: What Employers and Employees Need to Know

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter]

If you’re reading this blog, odds are that you know a thing or two about social networking. This just in -- sites like YouTube, MySpace, Facebook, LinkedIn and Twitter, which allow users to post and share information, pictures and documents, are catching on. According to one recent study featured in USA Today, 35 percent of adult Internet users now have a profile on at least one social networking site.

While it is true that social networking sites can serve a valid business purposes (e.g., marketing, advertising, client development), many who use these sites do so to broadcast the details of their personal lives. Pictures of keg parties, scenes from an Italian restaurant local watering hole and images of scantily clad men and women abound. And if not expressed in pictures, some online users willingly describe the most intimate details (sometimes embellished) of not only their own private lives, but also those of others. 

The foregoing has not been lost on American businesses. Many employers, as part of the hiring process, will scour social networking sites to learn more about job applicants in order cull out those individuals who have posted inappropriate materials on the Internet and could potentially ruin the employer’s reputation or otherwise subject the employer to litigation.

As to its existing workforce, these same concerns, along with employee productivity, have many employers restricting access to social networking sites on office computers. It is important that employers who do restrict access to social networking Web sites memorialize this in a computer-use policy circulated to employees. The policy must be clear that access to social networking sites at work is forbidden and violation of the policy will result in discipline up to, and including, termination of employment.

But what happens when an employer learns about an employee who, for example, posts sexually harassing messages on Facebook about a co-worker?

Obviously, it is in the employer’s best interest to maintain a work environment free of discrimination and sexual harassment. Therefore, employers are well served by including language in a written computer-use policy reserving the employer’s right to monitor its employees’ online activity during and after business hours. Online behavior that harasses, discriminates, disrupts, or interferes with another's work performance or that creates an intimidating, offensive or hostile environment is forbidden and will result in discipline up to, and including, termination.

Employers can further extend this prohibition to the posting of disparaging information on the Internet about the employer, with violations resulting in similar discipline. 

Not only do the foregoing policies protect employers by limiting potential liability exposure, they also protect employees. That is, carefully tailored computer use policies help keep the workplace free from discrimination and sexual harassment and otherwise remind employees that they may be personally responsible for information posted on the Internet.

Eric B. Meyer
Dilworth Paxson

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson. Readers can contact Meyer via e-mail and follow him on Twitter.

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