Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Social networking sites continue to cause problems for many employees, including attorneys.  In a recent article entitled "Lawyers "step in it" Through Social Media Incompetence", a number of stories are discussed concerning lawyers who have found themselves in trouble through the use of social media.  These include a North Carolina Judge who was reprimanded for "friending" a lawyer in a case he was assigned to, and discussing the case on Facebook; a California lawyer was suspended from practice for 45 days for blogging about a trial in which he served as a juror: a Florida lawyer was fined $1,200 for blogging that a particular judge was "an evil, unfair witch"; and an Illinois public defender had charges filed against him for posting confidential client information on his blog, including first names and jail identification numbers. 

A short but interesting article  published by The Advertiser entitled "Should social media be part of the workplace?" is a common sense review of the pitfalls of social networking in the workplace.  Aileen Bennett writes,"With privacy settings dubious at best and other people being able to take our information and copy and share, we must presume that everything we put on line is public.  If you are writing something that you don't want your boss to see, my advice would be not to write it.  if you are sharing someting that you wouldn't tell your mother, don't share.  If you are updating your status with information that you wouldn't share with 500 strangers, think again."

Last week, USA Today ran a front page article entitled "Latest police weapon: iWitness".  According to the article, iPhones store a great deal of information, including screen shots after mapping applications are closed, the user's browser history and GEO tags and identifying information with photos posted online.  Law enforcement is being taught how to retrieve iPhone data in criminal investigations.  It is only a matter of time before iPhones will be forensically examined in civil cases and internal investigations involving employee issues.

Practice pointer.  Social media policies should be in place at corporations and other places of business.  This will give some guidance to both employers and employees as to what can and should be done while using social media. 

Update on June 2 post

On June 2, I posted an entry addressing the termination of a white football coach at an historically black university and the coach's filing of a lawsuit alleging discrimination. The Atlanta Journal Constitution now reports that 4 white students have filed suit against Savannah State University alleging that their football scholarships were pulled because they are white.  It will be interesting to see how these lawsuits progress. 

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Last week, I lectured at the UAB's Social Media class that is part of the School of Business on how social media impacts the workplace.  Having two sons in college, who use social media on a regular basis, this topic is near and dear to me.  We talked about how HR managers are using online searches to check on potential and existing employees, and that improper postings may prevent one from being hired, or get an existing employee fired.  We discussed the fact that when you begin working at a new job, it is likely that at least one of your new co-employees will investigate you online to learn more about you.  So, the question becomes what is inappropriate?  The answer is not clear, since it depends on who is doing the hiring and firing.  I emphasized the use of common sense, if there is a picture, joke or comment that you would not show/tell your mother, it should not be posted on line.  These may include pictures in various states of undress, skimpy clothes, drinking, using drugs (remember Michael Phelps?), carrying firearms, racial/sexual jokes/comments, or criticizing current or past employers or supervisors.  I advised the class that there is nothing wrong with keeping a personal album of photographs from their college days, but if there is anything that is even close to being questionable, it should not be posted online.  This includes pictures that may be posted on their friend's sites, since the links can be easily traced. 

Yesterday, Stephanie Goldberg wrote an article for CNN.com entitled "Young job-seekers hiding their Facebook pages".   Ms. Goldberg's article notes that 70%of recruiters and hiring managers have accessed the Internet and rejected candidates based on what they found online.  She refers to a Microsoft survey that reveals that 79% of hiring managers use the Internet to better assess applicants.  One of the questions asked last week in class was about the possibility of setting up 2 different Facebook pages: one for professional purposes, and one for "fun" under a different name.  I advised the student that that was not a good idea, since there may be links or other ways of finding both sites. Ms. Goldberg also answered this question when she noted a student who did just this changed his alias after 2 weeks "when he realized Facebook users also can be searched by e-mail address, school and network...". 

Ms. Goldberg quotes several students who have changed their privacy settings to restrict access to their Facebook pages to only their "friends".  She even referred to a career counselor at Penn State who recommends "that students with potentially incriminating photos or posts change their name on social networking sites."  One of the students last week at UAB asked a similar question: what if i restrict access to my photographs?  My response to that question was what if the HR person interviewing you asks you during the interview to access your Facebook page?  If you say no, at least in Alabama, which is an employee at will state, you may not be hired.  If you say yes, and permit access, and there is inappropriate material, you may not be hired.  So, it boils down to why take the chance.

Practice pointer.  Any employee or perspective employee needs to seriously consider what information is available about him/her on the Internet: if it is inappropriate, it may have an adverse impact on your employment.  This is true even if access is restricted to your own social networking sites or you use a alias: there are ways gain access, both legally and illegally.  The bottom line is to use common sense:  if you would not want your mother so see the picture or hear the joke, don't put it on the Internet. 

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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