National Clothesline
National Clothesline
Facebook’s role in the workplace
I will admit it. I have a personal Facebook account. I resisted having one for quite a long time, but I got tired of hearing about what my adult children were doing from their Facebook friends.
I will also admit that I post things, occasionally, that I might not have posted had I given it more thought.
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There are other social media — Twitter, Tumblr, Google Plus, and so forth — but Facebook is the king of social media right now. And because I know more about it than Twitter (although a very nice lady sent me a tweet saying she liked me so much she wanted to meet me), my examples here will be Facebook ones.
State legislatures and the National Labor Relations Board have taken steps the past couple of years to protect employees in their use of social media. Companies in Maryland cannot insist on employee disclosure of passwords, and the NLRB takes the position that even posts that disparage employers can be “protected activity.”
While the NSA can spy on Americans with very little outcry from the public, the government wants to punish employers for invading the privacy of employees on Facebook. It is rather ironic that the government wants to put more protections on employee privacy while at the same time reducing the privacy of all citizens.
Social media, by the way, is not all social anymore. My firm has a Facebook page, and I hope we are not using it to post non-legal nonsense, like cat videos. There is plenty of legal nonsense to go around.
While I am sure our media people at the firm want all our employees to “like” us on Facebook, I am equally sure that it is not a good idea to insist that they do. Then again, if one of our employees is confessing to misconduct at work on Facebook, I definitely want to know about it.
So, what should an employer do about social media? Should a Facebook check be part of the hiring process? Should an employer check Facebook daily, along with employee emails and video surveillance tapes?
If you are going to pore over employee Facebook entries, you must decide what you are going to do about the information you obtain.
If my Facebook experience is indicative, you will undoubtedly get lots of disturbing information that is not directly work-related. You may learn things about your employees that you wish you hadn’t, especially the employees you think are doing a great job.
Someone once said,“Don’t ask questions where you don’t want to know the answers.” You may want to decide ahead of time that unless employees are confessing to misconduct at work, you are not going to take disciplinary action against them for what you learn.
Even if you discover instances of misconduct, you may want to consult an attorney to determine if the statements you consider misconduct are protected. What if the critical comments about your business are true? Does that make a difference, even if the comments could hurt sales?
The law of social media in the workplace is evolving. For now, if you understand social media, you might want to delve into it a little more, especially in the area of employee relations. If not, you should probably wait until someone brings a particular post to your attention, then evaluate if you need to take some sort of corrective action.
My firm has reviewed social media policies, and we have taken a stab at writing them ourselves. Unfortunately, until the law is settled, the answer to the question “what do we do” will likely be “it depends.” A written social media policy may do more harm than good.
In closing, check out my firm’s website and Facebook page. You might find information that will help you deal with problem employees, including those with compulsive Facebook posting syndrome.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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