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Can You Dictate Your Workers’ Private Lives?

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Some companies ban their employees from engaging in certain behaviors like smoking — not just on the job, but also on their own time. Rules prohibiting romantic relationships among employees are less common now than formerly, but still exist. Still other bosses “friend” their employees on social media to keep tabs on them. However, there are potentially serious legal and ethical implications of attempting to control workers when they’re not on the clock.

Protecting the Company Brand

As a business owner, you have both the right and the responsibility to protect your company’s brand from possible harm resulting from employee behavior. The key is to establish and maintain a detailed, consistent policy that advises employees that they can be disciplined or dismissed for off-duty conduct that harms the company. This includes posting potentially libelous content on social media accounts or in personal blogs, according to Todd Wulffson, Managing Partner in the Orange County, California office at Carothers DiSante & Freudenberger LLP, an employment, labor and immigration law firm with offices across the state.

“Just as it is permissible to tell employees they cannot wear their uniform to a bar, employers can tell employees not to do anything on social media that could harm the company’s reputation. For example, an employee cannot go on a white supremacist rant on his or her Facebook page and identify himself or herself as being an employee of the company. If someone ‘Googles’ the company name, he or she may find the rant, “Wulffson stated.

Pre-Employment Screening

At the height of the Great Recession, many companies demanded that applicants turn over the passwords to their social media accounts. While this demand represents a clear imposition into individual privacy, desperate job seekers frequently complied anyway. This sort of intrusion is far less common now, but many company owners and human resource departments still scrutinize the online presence of prospective personnel as well as current employees.

Using social media to verify elements of a prospective employee’s qualifications is usually OK, as long as human resources personnel are properly trained. For instance, checking out an applicant’s public LinkedIn profile is totally legitimate. However, this sort of vetting should be limited to candidates that the company is seriously considering for hire, according to Wulffson.

“Don’t let hiring managers ‘Google’ applicants that they are going to interview. Don’t use social media (to check out job applicants) until a job offer has been made and the employee has consented to a background check including social media,” Wulffson warned.

Monitoring Social Media

Social media can be utilized to promote legitimate company interests, such as marketing. However, social media should be used to enhance, rather than replace marketing efforts. Likewise, there should be a clear separation between social media activity by employees on the job and their personal social media accounts, according to Wulffson.

“Having employees ‘like’ the company’s Facebook or Instagram page can help boost marketing efforts and shows employee support. Having employees ‘friend’ or link the company Facebook or Instagram page to their personal pages, however, can expose the company to liability if there is personal information on the employee’s page that would otherwise be private (such as religion, sexual orientation or marital status), Wulffson explained.

Similarly, employers should avoid “friending” their workers on social media platforms, especially if only some employees are involved. Otherwise, employees who are not “friended” could feel slighted – and could lodge complaints of favoritism, Wulffson advised.

Monitoring employees’ after hours conduct through social media represents another potential land mine for employers. Doing so without significant justification could expose companies to adverse legal action, according to Wulffson.

“As with any other monitoring activity, social media monitoring must have a legitimate business reason and be consistently applied. Even though social media monitoring might only be of ‘public’ information, the company cannot single out individual employees to snoop on their personal lives without good reason. The ramifications are discrimination or harassment lawsuits, invasion of privacy and breach of implied contract,” Wulffson warned.

Prohibiting Dangerous or Unhealthy Behaviors

It is completely legitimate to discipline (or even dismiss) employees who use illegal drugs at work or whose alcohol or drug use impairs their ability to do their jobs. It’s also understandable that company owners would want to limit or eliminate behaviors like smoking, heavy drinking or illegal drug use among their workers, if only to reduce their health insurance costs. However, attempting to monitor or control such behaviors when employees are on their own time can produce serious adverse legal consequences, according to Wulffson.

“Smokers have lost almost all of their rights if someone else can smell the smoke, but they still have the right of privacy with respect to their nicotine addiction. A company cannot refuse to hire a smoker or snoop on their social media accounts to see if they are (smoking). The company can, however, say smoking is not allowed in or near the facility,” he explained.

Regulating Romantic Relationships

Back in the day, prohibitions against dating among employees were common. These days, such regulations seem archaic. However, they still have a legitimate role – at least where avoiding sexual harassment claims is concerned. It’s also totally legitimate to use social media to investigate cases involving workplace harassment or threats of violence. However, blanket policies that prohibit dating among employees or monitoring social media to determine whether employees are dating potentially opens companies to lawsuits, Wulffson warned.

“A dating policy that informs employees that they cannot be in a managerial relationship (with a subordinate employee) at the same time as a romantic one is fine. But banning dating in the workplace is dumb. It will drive employees away and will get the company sued for invasion of privacy and discrimination,” Wulffson stated.

Disclaimer: This article describes general circumstances concerning company policies for employee conduct. It is not intended to provide legal advice. Please consult with an attorney specializing in employment law for specific questions concerning your company or organization.

Audrey Henderson

Posted In: Legal, Management

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