said 10 months, 3 weeks ago:
@joshuahooperkay I have been following this closely as well and there are a few issues which businesses should be VERY careful about before implementing such policies. My department was tasked with analyzing this and came out with a very strict “NO!” due to legal liability issues. The following are the highlights of our research with our lawyers:
1. When an employee is on their own time, not being paid by the company, the company has no say in the actions or behavior of that employee unless the action is so dangerous and egregious as to expose the company to liability issues if they keep the employee on board. There is case law backing this up which allows employers to discriminate hiring based on criminal record, if and only if, the hiring of the criminal would result in that person being in an environment in which they had previously displayed poor decision making skills. Commenting on Facebook, on the other hand, no matter how annoying, is considered protected speech. See the theory of “respondeat superior” for questions of liability between employer and employee (NOTE: Mary Foley case study).
2. In order to claim standing and get around issue 1, an employee would have to be willing to consider their staff on the clock 24 hours a day, 7 days a week, and their home would have to be considered a work site. Beyond the payroll implications if your company has a large number of hourly employees, this also exposes the company to other liabilities. If the employee cuts their finger while cutting up a potato for dinner, they can file a workman’s comp claim. If a neighbor comes over for an X-Box night, and develops carpel tunnel syndrome, your company will be liable for all medical expenses. If the mailman walks up to the mailbox and slips and falls, your liable. Since the employer is claiming that the actions of the employee at all times are under the governance of the employer, this also includes those actions and in-actions taken in relation to the employees place of domicile and recreation. Thus, the employee could make the claim that the employer is responsible for all upkeep of governed property (i.e. cars and houses) that are used in the course of maintaining a proper image of the company. These would be ruled business expenses. This could potentially include: fresh paint, home repairs, meals out so that the employee can properly talk up the company, car repairs and gasoline to display logo and image, etc etc.
3. Discrimination. If you do not hire someone, or you choose to fire someone, it is, at this point, nearly impossible for an employee to claim discrimination based on protected class unless the hiring manager did something worth being sued over. However, the bar for proving discrimination drops rapidly if the manager has access to the employees Facebook. One protection that managers have had in the past, and this was a good protection to have in place, is that they did not know the sexual orientation or religious beliefs of an employee, and thus would never make a decision. Now they would know. Do you trust all of your managers 100% NOT to do something stupid?
4. In cases where you could make the claim it is necessary (CEO commenting before an IPO, HIPPA policies, Bank Secrecy Act, etc), you are better off handling the issue through training as well as strict policies to handle complaints. Note, in the event of a complaint, the actions of the employee would be discoverable by court order and can be looked into by a third party investigator who would not announce to the company other factors (i.e. sexual orientation, age, religion and other protected information).
5. Monitoring through forced access (i.e. you must hand in all Social Media passwords to HR), is a violation of the terms of service for all social media sites, but especially Facebook. This could result in the company being banned off of those sites. Note: forced compulsion could, in some jurisdictions, also lead to civil actions by both the employee and the third party site.
Just some thoughts. We thought it was a huge can of worms and backed away VERY quickly.