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H. Mark Adams, Editor; Jennifer L. Anderson and Jennifer Faroldi Kogos, Associate Editors
Jones Walker
Vol. 17, No. 1
April 2008
ELECTRONIC WORKPLACE
What happens in cyberspace doesn't always stay in cyberspace
Unlike Las Vegas, what happens in cyberspace doesn't always stay in cyberspace. Employers are taking full advantage of this growing resource for information about applicants and employees. And employees are learning the hard way that uploading
personal photos from summer vacation at a nude beach (while wearing nothing but a company hat, logo prominently displayed) to a MySpace page could leave them searching for a new job.
Personal blogs, social networking websites, and personal Internet pages are now frequently visited by employers trying to learn a little more about the people working for them. In fact, a recent survey showed that nearly half of reporting employers
use MySpace and Facebook to check out applicants and that more than one- third have used these sites to view a current employee's information. There's no reason you can't join them.
MySpace is your space
Applicants and employees don't have a reasonable expectation of privacy in what they do, say, or post in any public forum, including the Internet. So you're not violating anyone's privacy by viewing a personal blog, webpage, MySpace page, or other
Internet site that is otherwise open to the public.
Information that many employers consider when researching applicants and employees on the Internet includes:
- references to ongoing, illegal drug use or other illegal activity;
- sexually explicit photos or information;
- racist or other discriminatory remarks;
- defamatory or derogatory comments about previous employers or supervisors;
- comments that suggest a poor work ethic or disloyalty;
- disclosure of confidential or proprietary information belonging to a previous employer;
- use of the company's name or other employees' names without permission; and
- anything
else that might violate your workplace policies or is NSFW (for those of you who don't frequent the Internet, that's "not safe for work").
That type of information leads to legitimate business concerns for many employers, and it's fair game if
an applicant or an employee is foolish enough to put it on public display. That doesn't mean you can or should rely on everything you find on the Internet to discipline or fire an employee. Remember, federal and state laws make it illegal to consider
a protected characteristic such as race, gender, religion, age, or disability in making an adverse employment decision.
Some states provide greater protection to applicants and employees than federal law. For example, Louisiana law prohibits employers with 20 or more employees from, among other things, firing an employee based on political affiliation. So if your
employee expresses a political preference on his MySpace page and you don't agree with him, firing him for that reason will land you in hot water.
You also have to consider whether the employee or someone else posted the information and whether it's authentic. Doctored photographs and phony blogs could create problems if you blindly accept them and take action without giving the employee an
opportunity to at least tell her side of the story. The best practice when considering discipline or other action based on Internet information is to confront the employee with your findings and allow her an opportunity to explain or respond. You
might learn something that changes your position. If not, at least you've been fair and heard the employee's side.
Bottom line
It's a good idea to adopt a policy explaining the type of outside activities you prohibit and the consequences for violations. The policy should be drafted as narrowly as possible and be based on legitimate business reasons. Avoid attempting to
regulate or control employees' private activities that have no bearing on the company, its image, or its business. Consulting your employment attorney is the best way to avoid overreaching when drafting and implementing an outside activities policy.
Once you've developed a policy, it should be discussed with and distributed to all employees. Better yet, include it in your employee handbook.
Many employers still think they don't need (or shouldn't need) a policy telling applicants and employees to be careful about what they say and do in public ― that it's just common sense. If that's what you think, go to www.MySpace.com right now and look around. Then call your employment lawyer and get to work on your policy.
Find out more about using the Internet as a research tool in the subscribers' area of www.HRhero.com, the website for Louisiana Employment Law Letter. You have access to an HR Executive Special Report
on the subject: "How to Avoid HR Hazards of Your Electronic Workplace." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.
Copyright 2008 M. Lee Smith Publishers LLC
LOUISIANA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Louisiana employment law. Questions about individual problems should be addressed to the
employment law attorney of your choice. The State Bar of Louisiana does not designate attorneys as board certified in labor law.
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