Investigating employee harassment on Facebook
Q: One of my employees came in with a screen shot of a Facebook post by a coworker calling him names. Other employees joined in and made comments about him. Can I discipline based on the Facebook postings?
A: Yes, if the Facebook postings are a violation of your harassment policy. You are responsible for addressing harassment and discrimination that occurs online—even if it’s outside of working hours—where it bears a connection to the workplace, as in this situation. What is trickier is how you conduct your investigation. Most employers want to jump online and review the Facebook postings, but if you were not previously “friended” by the employee who made the offensive postings, he or she might have a privacy claim against you. Some states, such as Washington, have even passed laws prohibiting employers from accessing employee’s social media accounts. The courts have also taken a dim view of employers who access personal social networking sites, even if it’s with permission. Employees sometimes ask the employer to look at a site, only to claim coercion by the employer later after his or her fellow employees exert some peer pressure. Your best bet is to conduct an investigation the old school way—by talking with involved employees and asking good questions and targeted follow-ups. For help on the best questions to ask to get the information you need (without peeking at the Facebook page), call your Vigilant representative.
This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.