Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
We previously contended that applicants and employees might create “phantom” social media profiles to thwart employer inquiries into their online conduct. In Trapp v. DHS, the tables were turned when a supervisor created a fictitious Facebook profile to investigate allegations that an employee posted inappropriate comments on his Facebook page. When the employee was terminated as a result of his Facebook page’s contents (and another charge), he disputed his termination in arbitration. The arbitrator determined that the employee’s Facebook profile was private because the employee had limited access exclusively to his Facebook friends.
In Trapp, a male manager for U.S. Border Patrol created the fake Facebook profile of Layla Shine to send his employee a friend request. Layla Shine’s profile included a picture of a woman, and the employee believed that Shine was someone he had previously met. After the employee accepted the friend request, the manager examined the employee’s posts, copied them, and used the contents to file a charge of “poor judgment” against the employee.
The arbitrator concluded the manager’s conduct violated the federal Stored Communications Act (SCA). The arbitrator rejected the employer’s good faith defenses, noting that the manager did not determine whether his methods were legal or appropriate, nor did he use any law enforcement authority to access the employee’s account. Moreover, the employee was not the subject of a criminal investigation. The arbitrator apparently rejected the manager’s contention that he was unaware that Facebook required users to promise they were providing their real name (and not using fake personal information) and would not violate the law when using Facebook.
Although Trapp is not binding on courts or arbitrators, it illustrates the challenges employers face in the digital era. An employer may have many valid reasons to monitor employees’ online conduct. However, monitoring must be conducted legally; otherwise employer monitoring could expose the organization to legal liability. For example, employers should not use false pretenses to gain access to an employee’s restricted social media content. Using false pretenses exposes the employer to liability.
Being transparent, and asking the employee to permit the employer to view the reported content avoids this potential liability, but it could raise other issues. As discussed in recent blog posts, 11 states have laws limiting employer access to social media. However, eight of these states have investigation exceptions that may be available to an employer. Outside of state social media access laws, industry-specific regulations may address social media activity and impose obligations on employers and employees. In the absence of state or regulatory requirements or limitations, employers should adhere to their own policies and procedures concerning online behavior and workplace investigations. Understanding the boundaries of permitted social media investigations and acting accordingly will help guard against an employer’s disciplinary or termination decision based on a social media-related investigation lasting as long as a snapchat.