Tag Archives: Employment Law

HR/Security Hot Topic: Should you watch your employee’s personal Internet activities? (Facebook, MySpace, Twitter, etc.)

28 Thursday Oct 2010

Posted by in Branding, Business, Communication, Consulting, Crisis Management, Customer Service, Employee Retention, Ethics, Government Regulation, Honor, Human Resources, Information Technology, Internet, Management Practices, Pride, Privacy, Public Relations, Re-Imagine!, Recreation, Relationships, Respect, Rotary, SEO, Social Interactive Media (SIM), Social Media Relations, Violence in the Workplace, Website

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by Paul Kiser
USA PDT  [Twitter: ] [Facebook] [LinkedIn] [Skype:kiserrotary or 775.624.5679]

Paul Kiser

One of the hottest topics in the world of employment is whether or not an employer should monitor his or her Internet activities. This is a subject I’ve written about before, but it is an issue that is still emerging and has yet to have any significant case-law to provide guidance to employers.

It is well-known that a large number of employers perform a ‘Google’ search on the Internet before they hire an applicant, but now companies are feeling the need to continue to monitor an employee’s Internet activities after hire. Many experts, especially those involved in employee liability prevention support an employer’s right to monitor an employee’s Internet activities even when those activities occur off-duty and offsite. The logic is that it is prudent to aware of anything an employee might say or do that could embarrass the employer, or any indication that the employee might take an action that might involve the company and its facilities.

These are rational arguments, but I believe that monitoring an employee’s activities is opening the door to bigger liability issues. Sound odd? Here’s the scenario I see happening in three Acts.

Should the Employer be Big Brother?

Act One: A busy-body employer or manager casually checks his or her employee’s Facebook, MySpace, and/or Twitter accounts. The employer might even do a Google search on an employee from time to time. When the employer or manager finds something that they see as objectionable they confront the guilty employee and take the proper action. It becomes known throughout the company (and the employee’s family) that the employer monitors its employee’s personal Internet activity.

Act Two: An employee has been reprimanded for content they have posted on the Internet. Six months later the same employee posts information on the Internet that he  is considering suicide and describes in detail how he is going to kill himself. Two weeks later the employee carries out the suicide as described. The family is aware the employer monitors the employee’s Internet activity and sues the employer claiming that the employer should have reasonably been aware of the planned suicide and taken action.

Act Three: Companies find themselves with two polar opposite choices. Either the company does not monitor their employee’s Internet activities or the company assigns resources to constantly monitor the Internet on every employee to insure they capture any relevant data for which the company should take action.

I was trained in Human Resources under the policy that what the employee did on her or his own time was off-limits to the employer unless it had a direct impact the job performance. That policy has had to be adjusted in a world where work and off-duty time can often be hard to differentiate, and where drug testing, researching credit scores and background checks have become standard operating procedure for many companies. However, an employee’s personal Internet activities is almost impossible to track in a society that is increasing involved in hours of daily online social networking. The question is whether an employer wants to be liable for monitoring its employees 24/7/365 and being held responsible for taking the appropriate action, or whether the employer would be better served by not being sucked into liability issues that can be avoided by simply not playing the role of Big Brother ?

I know which strategy I would recommend to my clients.

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Is monitoring your employee’s Facebook page a liability?

15 Monday Feb 2010

Posted by in Management Practices

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by Paul Kiser

Paul Kiser - CEO of 2020 Enterprise Technologies, inc.

A recent study indicated that 70% of employers surveyed said that they use an applicant’s personal social networking page as a factor in deciding whether to hire or not.  It is no secret that many employers check out their employee’s social networking sites and in some cases base employment decisions on what they find out about their workers, but is the employer increasing their liability by this practice?  A manager or human resource person who goes to a social networking site and looks up an applicant’s (or an employee’s) webpage may believe they are acting in the best interest of the company; however, researching someone’s private life may result in expanding the company’s Duty to Care responsibilities, which could open a new door of accountability if the employee commits a criminal or civil offense that might have been indicated beforehand on his or her social networking page.

Duty to Care versus Big Brother
Every employer has an obligation to abide by the doctrine of ‘Duty to Care’.  While each State has its own standards to define an employer’s Duty to Care, in general terms, it is the responsibility of the employer to make a reasonable attempt to ensure that an employee would not cause harm or injury, and if an employee does cause harm or injury that the employer could not have reasonably foreseen the employee’s potential to act in such a manner.  Some may think that this is limited to an employee’s actions on the job; however, under certain conditions, the employer may be liable for harm or injury caused by acts performed while off-duty.  Because of the Duty to Care responsibility many employers perform criminal background checks, credit checks, and drug testing on their employees to insure that they have made a reasonable effort to maintain a safe environment for their customers, employees, and the general public.  Monitoring an employee’s Facebook, MySpace, LinkedIn, or other social networking page might seem a natural extension of the Duty to Care obligation, but is it a good policy or does it expand the Duty to Care to an unlimited monitoring and assessment of an employee’s potential to cause harm?

A Fictional Example
An employer (Better Widgits, Inc.) checks an applicant’s (Mark’s) current Facebook page and sees nothing unusual and based on the qualifications of the applicant and seeing nothing negative in the criminal background checks, Mark is hired.  Eight months after being hired Mark is fired for poor work performance.  Two months later Mark returns to Better Widgits, Inc. and shoots two people.  Attorney’s for the victims discover that six month’s prior to his employment Mark had written about his admiration of a murderer who went back to his former employer and killed three people.  If the attorney’s for the victims know that Better Widgits, Inc. had a practice of checking an applicant’s Facebook page, isn’t it plausible that they will try to build a case that the employer should have reasonably known that Mark had the potential to be violent based upon his Facebook writings?

In the above example the attorneys may still attempt to make the same case even if the company forbid managers and human resource staff to review applicant and/or employee personal social networking sites.  The difference is that the question of ‘reasonable’ knowledge may be limited if an employer takes the stance that they cannot be held responsible for potential acts of violence based solely on the person’s writings on a social networking page when the employer has no legal responsibility for such an intrusive examination of an applicant’s/employee’s personal life.  However, by voluntarily researching Mark’s Facebook page they may be obligating the company to take action on what they find, or in this case, should have found even if it occurred six months prior to Mark’s hiring.

O Brave New World of Employment
We are still in the early phase of understanding the legal ramifications of how social networking sites will impact employment law and it may be years before standards can be developed that will define the best practices; however, each employer should understand the potential liability of monitoring personal social networking sites.  There is risk even with a decision to not monitor the personal Internet writings of an applicant or employee.  Case studies have shown that a violent act in the workplace is often foretold in the writings of person days, weeks, months, and even years before he or she commits a criminal act, so it will be no surprise if individual States eventually enact legislation to require employer’s to research an employee’s private life, including social networking sites.  However, until it is required by law an employer should consider a policy that defines and limits the company’s responsibilities for researching an applicant’s or employee’s background.  It is suggested that an employer seek the advice of their attorney before they begin monitoring applicant or employee personal social networking sites and understand the potential legal responsibility social network monitoring may create for the organization.

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NOTE:  Paul Kiser is not an attorney and this blog should not be considered to be legal advice.  An attorney should be consulted for all legal issues and opinions regarding proper employment practices and policies.  Paul has over 10 years of Human Resource related experience in HR and management and a Bachelor of Science in Business Administration.