When it comes to “friending” your boss, or even accepting a friending invitation on a social network, labor lawyer Linda Walton offers this simple advice: Don't.
“Friending your boss allows employers to have far more information about you than they would have with a normal workplace friendship,” said Walton, a partner at Seattle law firm Perkins Coie. “They have access to an employee's friends and family. And, when it comes to a supervisor who evaluates a person for raises and promotion, becoming too close to that person may raise all kinds of red flags.”
The potential pitfalls of friending subordinates and bosses go beyond stereotypical issues such as posting compromising pictures or updates that might get an employee in trouble—for example, an employee calls in sick but later posts a Facebook update from a nearby theme park.
“An employer might see that an employee has participated in a Walk for the Cure or "liked' the American Cancer Society, draw the conclusion that the employee has cancer and refuse a promotion,” she said.
The intersection between our work lives and social media is a murky legal area. A number of cases have been introduced alleging workplace discrimination based on social media, but only a few have been decided legally.
In October, the National Labor Relations Board issued a complaint against an employer based on Section 7 of the National Labor Relations Act. Under that law, if employees communicate with each other to improve wages and working conditions, even if that talk criticizes their companies, they are protected.
In this case, an employee was fired by a Connecticut nonprofit for posting negative comments about her supervisor on Facebook; she then sued the employer. The NLRB sided with the employee, protecting her right to engage with co-workers in “concerted activities,” or activities that are dedicated to promoting workplace fairness and safety.
In a similar case in September, NLRB required a New York social services nonprofit organization to reinstate five employees and provide back pay after they were fired for griping among themselves on Facebook about a co-worker's job performance.
“The same laws that protect employees engaged in certain activities that existed before Facebook still apply,” said Megan J. Erickson, an attorney who blogs on social media and labor issues, and practices with Dickinson, Mackaman, Tyler & Hagen in Des Moines, Iowa. “Technology changes rapidly and the law adapts notoriously slowly. We're often dealing with the same laws that have applied for years and years, and that's what poses the most serious challenges—trying to apply longstanding laws to such new and evolving contexts.”
There are plenty of gray areas. For example, the use of “internal ambassadors” by some companies is uncharted territory, Walton said. When companies ask employees to use their own social media networks to promote company-sponsored blogs, such as AT&T Inc. is doing through its Networking Leaders Academy, there is no precedent setting legal boundaries between the company and its employees.
“A number of states have laws that prohibit employers from taking action against employees for off-duty activity, but very few states have an across-the-board protection on that,” Walton said. “And then there's the issue of wage-and-hour laws that cover salaried employees versus hourly employees. There are some thorny issues there.”
Erickson continues to advise caution. “What an employee or job candidate does online often does influence employment decisions,” she said. “That's usually legal as long as the decision isn't based on illegal considerations, such as religious affiliation, age, disability or other protected characteristics.”