Social-Media Sleuths

National Labor Relations Board rulings and advisories have said that employees may critically discuss work conditions freely on social media. Now, employers are finding they can use social media to help prove employee deception and fraud, and to defend themselves against workplace lawsuits.

Wednesday, February 6, 2013
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Many HR professionals feel strongly that there is no need for perusing employees' social media pages, which may contain personal information that is irrelevant to their jobs, a spokeswoman for the Society for Human Resource Management says.

Some, however, are finding social media a useful if infrequently-used tool in identifying employee job-related misconduct. This camp sees nothing inherently wrong in doing so. 

"If it's in the public media, it's out there" for all to see, says Jeffrey Daum, president of Competency Management Inc., a human resource consulting firm in Las Vegas.

"Looking at social media sites is becoming more common," says Peter Gillespie, of counsel in the Chicago office of Fisher &, a national labor and employment law firm that represents employers. And in some cases, he says, HR officials are remiss if they don't investigate complaints arising from employee posts on social networking sites.

An HR manager who isn't a Facebook "friend" of an employee isn't going to learn much if their Facebook page has strict privacy settings. But workers engaged in questionable behavior get tripped up anyway by colleagues they have friended.

"More often than not, a co-worker sees something and comes forward to report it," Gillespie says. "They say their co-worker is gaming the system. If the employer doesn't act, it can cause morale problems."

Take the case of Sara Jaszczyszyn. The former customer-service representative at Advantage Health Physician Network in Michigan missed several weeks of work while on family and medical leave, saying she was "completely incapacitated" by a back injury. But colleagues saw photos of her on Facebook partying at a festival. One of them told Jaszczyszyn's supervisor, who confirmed it. Jaszczyszyn was subsequently fired, and she sued. A federal appeals court recently affirmed the lower court's summary judgment in favor of Advantage.

If an employee comes to you with incriminating information gleaned via social media about a co-worker, ask him or her to provide you with a printout of the page or pages in question, Gillespie says. Don't ask for a password, and don't engage in "shoulder surfing" -- looking over his or her shoulder as he or she accesses the information.

Employers should never send a fake friend request to an employee in order to more fully access the latter's social media information. "You completely break any sense of trust with your workforce" once it becomes known this was done, says Eric Meyer, a partner in the labor and employment group at the Philadelphia law firm of Dilworth Paxson, who also writes "The Employer Handbook" blog.

"Do your investigation the best you can," Meyer says. "Talk to witnesses. Then go back to [the employee] and give her a chance to explain."

Gillespie doesn't think asking employees for their social media passwords is a good idea either. An employee may say later that he felt coerced into doing so, Gillespie says.

"I think it's invasive," Daum says. "Where do you draw the line?"

Six states -- California, Delaware, Illinois, Maryland, Michigan and New Jersey -- prohibit employers from asking or requiring employees or job applicants to disclose passwords for private social-media sites.

"Very few employers ask for a password," says John Sarno, president and general counsel of the Employers Association of New Jersey. "I think it's not a good practice." If an employee refuses to reveal his password and is fired later, the employer may be facing a wrongful termination complaint for alleged retaliation for not providing the information.

Sarno also is wary of asking a co-worker of a suspect employee for his password in order to gain access to the latter's private social media posts. "Asking that employee has to be thought through very carefully," he says. If he declines to give his password and tells the targeted worker about it, HR's investigation is compromised, Sarno says.

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"The unexplored area here is LinkedIn," Sarno says. "There's a lot of job searching and disclosure about projects being worked on." Employers don't want their workers job-hunting on their dime, nor do they want them revealing projects the company is engaged in, he says.

Even when it appears that an employee has been deceptive due to something he posted on a social media site, HR managers must verify what they see, according to Gillespie and Meyer. Photos could have been taken on an earlier date. Or if the employee posts incriminating comments, they could have been made facetiously, or posted by somebody else with access to the employee's computer.

"It's certainly possible that what you're seeing on a social media page isn't the whole story," Gillespie says. So if a supposedly sick employee posts a photo of herself partying and one of her co-workers is in the photo, ask the co-worker when the photo was taken, Gillespie suggests.

Always give the employee a chance to explain before taking disciplinary action, the lawyers caution.

Case law regarding employers, social media networking and employee conduct is evolving. "If what HR is concerned about isn't clear-cut fraudulent . . .  they need to be sure it doesn't fall into categories of protected speech," Gillespie says.

Still, posts on social media sites are proving to be valuable to employers who have been sued by workers. A federal appeals court in New York recently ruled partly in favor of a law firm that sought to review the non-public Facebook posts of a former employee who sued the firm for emotional damages, alleging that a female attorney had sexually harassed her.

The appeals court agreed with the defendant law firm's assertion that provocative photos and text on the plaintiff's public portion of her Facebook account contradicted her claims of mental anguish, and that her private postings might also reflect her emotional state. The court ordered her to provide certain photos and communications to defense lawyers that were accessible only in her private settings.

"If you want something to be private, don't post it," Sarno says. "There's a tremendous amount you can find publicly."   

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