Facebook and other social networking websites can be a great tool to attract customers and prospective employees.  However, the websites can also be a headache for employers.  As use of social networking websites continues to increase, their use will be front and center in many employment law cases.  And not only are employees suffering adverse consequences because of things they post on these sites – as readers of this blog know from this post a few months ago – employers can even get into the act and using these sites improperly themselves.

Recently, a former employee of a Pittsburgh sports bar filed a complaint against the sports bar.  According to an article on the Pittsburgh Tribune-Review’s website, the employee alleges that the company failed to take corrective action when a manager allegedly uttered a sexual slur against her.  The employee alleges that a week later she found threatening comments on the Facebook page of the bar owner.  The employee claims the comments were directed at her.  She resigned the next day and claimed that the comments were retaliation for complaining about the inappropriate behavior.

The former employee will likely put forth a constructive discharge argument based on the Facebook posting.  In other words, she will probably argue that her conditions of employment were so bad that she had no other decision but to resign.  The Facebook posting will be a critical piece of evidence to support her claim.  Obviously, employers must be careful that they do not make postings that can be construed as retaliatory.

In addition to complaints of retaliation, the potential for harassment also exists via social networking sites.  Although they should know better, supervisors and coworkers may make inappropriate postings about their subordinates or coworkers on social networking websites.  Sexually suggestive innuendo is no longer confined to verbal remarks or handwritten notes.  Inappropriate behavior now occurs on websites, where it can be viewed by more people and can be hard to erase.

Employers should monitor the company’s social networking sites to ensure that inappropriate postings are not being made.  If such postings are found, the employer should immediately take corrective action and address the situation pursuant to the company’s harassment policy.

Many businesses also allow customers to post comments about the business on their websites.  One obvious danger with this set up is that a customer may say something disparaging about the company.  Employers should also be cognizant of what customers say about their employees on these websites.  In certain situations, employers can be held liable for the harassing conduct of their customers, and this likely extends to posts made by customers on the company’s website.

Finally, defamation claims relating to posts made online continue to rise.  In fact, a few cases alleging defamation related to social networking posts were recently filed in West Virginia.  Employers must guard against these claims.  As an example, if an employer discharges an employee, it would be unwise to post that fact on a social networking website.  Employers should refrain from posting information about former employees after the employment relationship ends.  Employers should also remember that once the post is made, it is difficult, if not impossible, to remove it completely from cyberspace.

Thus, employers must exercise caution with respect to social networking sites as the number of lawsuits implicating their use will continue to rise.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
» See more articles by Joseph U. Leonoro
» Read the full biography of Joseph U. Leonoro at Steptoe & Johnson

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