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Fall 2011 Table of Contents

Facebook, the Law, and You

Social media is a double-edged sword for employers, workers

| From Commonwealth | By Caleb Daniloff

SMG’s Kabrina Chang, who studies the legal issues surrounding off-duty social media behavior, says 85 percent of businesses have no policies that address social media usage. Photo by Cydney Scott

In October 2007, Kevin Colvin, an intern at the New York branch of the Anglo Irish Bank, asked his supervisor for time off for a family emergency. It happened to be Halloween. That night, a picture of Colvin dressed in a fairy costume surfaced on Facebook. He was promptly dismissed.

“He must have been Facebook friends with someone he worked with, because the picture made its way to his boss, who wrote him an email that said, ‘I hope everything is OK. Cool wand,’” says Kabrina Chang, a School of Management assistant professor of business law and employment law.

Chang (CAS’92), whose research into the legal issues surrounding off-duty social media behavior was published in the spring 2011 issue of the North Atlantic Regional Business Law Association’s Business Law Review, says 72 percent of 18-to-29-year-olds have a Facebook page, and 40 percent of those over 40 have a profile. At the same time, 85 percent of businesses have no policies that address social media. And while the Colvin case was ultimately one of deception, she says, “it got me wondering how big the problem is with people who post things on Facebook that could be harmful to a business’ reputation. I found some cases, but there aren’t that many.”

In one case, she says, a server at a restaurant set up a MySpace page to vent about work. He’d invited only other coworkers, past and present. The discussions became infused with sexual comments about customers and other employees and with references to violence and drug use. When the restaurant bosses got wind of it, they decided that the remarks were hurtful and harassing to other employees, as well as a bad reflection on the restaurant. The server was fired. He sued for invasion of privacy and violation of the Stored Communications Act, which protects communication that lives on a website, for example. The courts sided with him on the latter grounds.

“A woman who was invited by the MySpace site administrator showed her manager the page,” Chang explains. “The managers said the invited woman gave up the password voluntarily. But she testified that she didn’t feel she could have said no, because it was her boss. So they didn’t have authorized access. Had they had authorized access, I don’t think it would have been a problem firing him for it.”

Chang recently presented her social media research at a faculty symposium at SMG. Bostonia caught up with her to ask what workers and bosses need to keep in mind when it comes to activity on online networking sites.

Bostonia: Is social media creating an atmosphere where our private lives will increasingly fall under the purview of our employers?

Chang: Well, there’s one case, which is not an employment case, but speaks volumes about the embarrassment and unprofessional conduct of employees online and why businesses are worried about it. A woman got expelled from the nursing program at the University of Louisville. She was to follow a woman through labor and delivery, and she blogged about it. The blog was colorful, full of vulgarities and crass descriptions. Again, one of the other students saw it and told the instructor, who then showed it to the dean. They expelled her, saying she violated the code of professional conduct in the School of Nursing. The court said she really didn’t. She didn’t use any identifying information, nothing linking her to the school. Plus, it was directed to the general world and not a specific audience. The fact that it was crude and vulgar contributed to it being nonprofessional instead of unprofessional, and her expulsion was overturned.

How are companies crafting policies for online behavior?

Companies pay a lot of money for marketing and recruiting online, but very few have policies dictating employee online behavior. Legally, employers probably have more rights than they think they do, but from a management perspective, I think they might be less willing to be overbearing and Big Brotherish. It’s a very delicate topic, because it might put a real damper on morale.

If computers are provided by employers, does that make everything fair game at any time, even something like your personal Gmail account?

It does. Employees should recognize that if they’re using an office computer at work or off duty. There’s a really interesting case with the Philadelphia police department that’s not resolved, but percolating. A sergeant started a website called domelights.com, dedicated to talking about law enforcement issues. Over time, the Guardian Civic League argues, there was a lot of racial harassment, derogatory remarks, the encouraging of racial profiling. Officers posted at home and at work, and they talked about it at work. The plaintiffs are suing the police department for allowing a racially hostile environment to exist at work based on what was going on online.

What’s your advice for employers?

Employers would be prudent to address the issue with employees in writing and in training seminars and handbooks, but not be overbearing, because that really sends a message to employees that you probably don’t want to send. On the other hand, there are cases out there that impose liability on employers for what happens online: for example, sexual harassment.

There was a case where some airline pilots had a forum online. A bunch of comments were made about another pilot, and she sued for sexual harassment, among a host of conducts. The court said the statements made online can be imputed to the employer as harassing comments. So employers have to address this because they stand to be exposed to risk. The real difficulty is how zealous are you going to be. How companies are going to pay attention to it depends on the culture of the office.

What should workers consider when they’re online?

Don’t put anything on your Facebook page you wouldn’t want your employer to see. I caution my students, too, when they’re looking for jobs, to clean up their Facebook pages.

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On 9 December 2011 at 10:53 AM, Kim (CAS'76) wrote:

Fascinating and informative read. Very timely given the increase in personal "on-line" presence and the legal implications on employer/employee relationships. I've shared with my colleagues. Thank you.

On 26 October 2011 at 4:45 PM, Eleanor Arpino (GSM'92) wrote:

Thank-you! As a consultant in the Restaurant and Hospitality industry I can tell you that the conversation about employees, technology and social networking seems to be happening daily. Trying to persuade managers and owners to be proactive (for once) and to have something in place as part of their "New Hire Packet" is no easy task. You can bet I will be sharing this article with others.

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