Question: My sister recently joined Facebook to keep in touch with her family and friends. Her employer requires that employees notify them if they join a website like Facebook. When my sister told her employer that she joined Facebook, her employers Compliance Officer told her that she had to list the Compliance Officer as a “friend” on the site so that he could observe and monitor her Facebook activity.
Can an employer do that?
One of our Blog Subscribers
Horseheads, NY
Answer: Great question. As the digital world and the workday world “collide,” we are seeing more and more ramifications of the “collision.” The issues that are arising, and their resolution, are developing over time. The issue you raise is a rather new issue in workday life, and in the legal system, and not many laws or cases have yet appeared.
As a general matter, if an employee is an “at will” employee, an employer can terminate that employee’s employment for any lawful reason. So long as no law forbids a practice – such as firing someone for their religious practices, or because they refuse to date a boss – termination for a non-prohibited reason is permissible. For this reason, an employer can set whatever “conditions of continued employment” it desires, so long as they are not prohibited.
Some states, like New York, have passed laws that prohibit firing an employee on the basis of his or her “recreational” activities.” Is Facebook such a “recreational” activity, and thus protected? My research indicates that this issue has not come to the New York courts, or any other courts. Until it does, and is decided, we can’t be sure.
However, from the court cases that have been reported, two trends can be seen: First, the permissible “recreational activities” the Courts have protected have been quite limited. They are things like inter-racial dating, participation in study groups, and participation in advocacy organizations, such as anti-abortion rallies. Second, and most importantly, when “recreational activities” could harm an employer’s business – such as when a Website includes company secrets, or disparages the company – Courts have not protected them. Said a bit differently, if there is a rational connection between the “recreational activity” and the employer’s interests, then prohibitions have generally been permitted by Courts.
Let’s take smoking cigarettes at home. Is this a “recreational activity” that is protected? Some companies have declared that they will fire any employee who smokes cigarettes, even at home, and base their doing so on the fact that their employee group-health insurance premiums are lower because all of their employees are non-smokers – both on and off the job. This practice has been criticized as too intrusive on a person’s life. However, the rational connection between smoking and health insurance costs has been the basis for court decisions upholding this particular “condition to further employment.”
As to monitoring Facebook, it would seem to me that having a “compliance officer” (a person whose job it is to ensure that employees honor rules and regulations) would be a permissible employer practice. But only time will tell if courts see it as I do.
Disappointed? I can understand that. The best thing, though, is to imagine yourself being an employer whose business was sued for $100 million for some errant comment on a Facebook page. Ouch! Bet if that was your business, you would then understand the wisdom of doing your best to ensure that didn’t happen again. No?
The key to so many of our employment issues is understanding each other, and being reasonable in our actions.
Great question. Please keep visiting, and sending in questions.
Best, Al Sklover
P.S.:In your situation, you might want to get a copy of our Model Letter Requesting a Copy of Your HR File. It shows you “What to Say and How to Say It”™ just [click here.] Delivered Instantly By Email to Your Printer.