Can we be Facebook Friends?

You’indexd better think twice before asking that question of an employee if you’re a California employer, manager, or board member. Using social media avenues to connect with your nonprofit’s employees may seem like a good idea, but it can open up a Pandora’s Box of troubles for you and for the organization.

For one, it’s illegal for supervisors to “require or request” access to an employee’s social media sites. That includes “friending” through Facebook or “linking” through LinkedIn. Yes. That’s right. It’s illegal.

We were surprised too, so we sought advice from employment law attorney Jeffrey S. Thomas. He confirmed that requests for social media access made after January 1, 2013 (the date the statute went into effect) are illegal and should be terminated immediately. Requests made prior to that date were not unlawful but nonprofits should carefully consider with their employment counsel whether maintaining these connections is a good idea. That’s because it’s illegal in most cases to fire or discipline an employee based on the information contained on his or her social media sites or to not hire someone based on that content.

This means that even if an employee is the one requesting access to the social media sites of his or her supervisors, supervisors should carefully consider whether or not to make the connection. If there’s a termination, a supervisor who has seen an employee’s social media sites is at far greater risk of facing allegations of wrongful termination based on information contained on those sites than one who hasn’t. The real danger lies in having the access to whatever the employee chooses to post, even if the employee is the one who requested the connection.

And think about how your nonprofit’s employees are accessing online information. Trial lawyer Adam D.H. Grant, who has considerable expertise in online privacy matters, warns that more problems are arising as an increasing number of employers are having their employees use personal devices for work. The question is: Who owns the information on the device? In the more traditional scenario of an employer providing a device for an employee to use, the employee had no reasonable expectation of privacy. But with this new arrangement, the employer has less control. Employees may be viewing sensitive or confidential work materials on a platform that doesn’t have adequate protections in place. But if an employer wants to monitor this type of activity, it must give the employee notice. Adam’s main advice in these arrangements is “when in doubt, disclose.”

Employment law and online privacy experts expect to see a lot of litigation on these topics in the coming years. For now, get more information by checking out the respective blogs of Jeffrey and Adam and contacting your human resources consultant, labor and employment attorney, or online privacy expert.

NOTE: The information contained herein is not intended to be legal advice and the reader should know that no Attorney-Client relationship or privilege is formed by the posting or reading of this article which is also not intended to solicit business.

Casey Summar, Partner, The Law Firm for Non-Profits, 4705 Laurel Canyon Blvd, #306, Studio City, CA 91607

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