The use of social media in the workplace — whether employer-requested activity or unsanctioned personal use — has legal implications. Some issues fall under established law; some open up new areas as yet unsettled. With a recent Voister survey reporting only 22 percent of employers have a policy on use of online social network sites — while 22 percent of employees use some networking site five times per week and 15 percent use them at work for personal reasons — Lori Higuera, an attorney/director with Phoenix law firm Fennemore Craig, says, “It’s an opportunity for employers to think about good practices.”
Privacy issues arise when an employer uses the Internet’s powerful search capability to investigate employees or potential employees. But as long as the individual has put information on a site shared with at least one other person, it becomes difficult to make a case for it being truly private. Says Higuera, “In recent cases, the courts have found that this idea of privacy on behalf of the employee does not trump the employer’s right to look for evidence [of the employee’s activity] on those sites.” For attorneys continuing the investigation, there is an ethical distinction, however, between accessing a public Facebook page and friending the employee in order to acquire access, notes fellow attorney Carrie Pixler, an associate at the law firm.
While, legally, the individual’s privacy may not be violated, such online communication may cross the line as harassment. Pixler notes that surveys have shown 50 percent of employees feel uncomfortable being part of an online social network with co-workers and supervisors, and this opens up the potential risk of harassment and discrimination. Adds Higuera, “People let their guard down. For instance, with email you can’t tell a person’s tone [of voice]. The same is true on Facebook. … People sort of forget there are all these other eyes there reading it.” She posits the situation of a female employee posting on her Facebook page vacation photos of herself in a swimsuit. “[If] her supervisor comments, ‘You look great in that swimsuit,’ how is that taken?”
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