The Dangers of Social Media: Employment Disputes

Social media platforms such as Facebook and Twitter are proving to be an increasing source of conflict between employers and employees, with surprising and unpredictable outcomes. For example, a store manager who checks the Facebook account of a prospective hire may not realize that this activity can violate anti-discrimination laws. To avoid unpleasant surprises, retail employers should proactively address expectations for their employees’ use of social media both in and out of the workplace.

Pre-Employment/Hiring

The use of social media can create liabilities for employers during the recruiting process. Many retailers now routinely review the Facebook accounts of prospective hires. However, sometimes too much information is a bad thing. For example, in Massachusetts, an employer may ask whether an applicant is younger than 18 years old, but cannot legally ask other age-related questions. If the employer checks the applicant’s Facebook page for age information as a way around this prohibition, the employer might be subject to an age discrimination lawsuit. Checking an applicant’s Facebook page might also provide information about the individual’s background that could lead to discrimination claims based on race, gender, or national origin.

During Employment

Many retailers already use social media to publicize and promote their goods and services. Company blogs, Facebook pages, and Twitter accounts are often created and maintained by employees, creating uncertainty about who owns the rights to the social media websites and who is responsible for their content. Ambiguous ownership and access rights to social media accounts can create fertile ground for disputes when a once harmonious employee-employer relationship sours. For instance, an interior decorating firm is now embroiled in a lawsuit after a former employee accused the firm of improperly accessing accounts and impersonating her in Facebook and Twitter postings while she was in the hospital.

Similarly, using social media to monitor current employees can create liabilities for retail employers. A jury found that managers at a Houston’s restaurant in New Jersey violated the Stored Communications Act when they used an employee’s MySpace account to examine employees’ discussions in a private forum, leading to the termination of two servers.

Post-Employment/Firing

When termination disputes arise, evidence from social media can cut both ways. Starbucks was granted a motion for summary judgment in a wrongful termination lawsuit after an employee’s MySpace page revealed violent threats towards co-workers. Although Starbucks benefitted in that case from the employee’s threatening post, just imagine if, instead, glib postings from management about the employee were discovered. An ill-advised social networking post from management could damage the employer’s case against its former employee.

The Takeaway

Ultimately, to protect their interests, retailers should consider adopting a social media policy and an electronic systems use policy. Of course, retailers should also maximize compliance by training their personnel and enforcing their company policies.

Related topics: Employment, Intellectual Property