Q. Our HR department got an anonymous call telling us that one of our employees posted comments on her Facebook page saying, “Some days I could kill my boss.” Can we demand that the employee let us see her page and fire her if she made a threat? — S.S., Arizona
A. This is a sensitive, hot-button issue that requires a well-measured response. First, see whether the employee’s Facebook profile is public, meaning it can be freely accessed without a password. If so, you can look up the comment yourself.
If the employee’s profile is not public, investigate. Let her know you received an anonymous tip. Tell the employee that it’s your understanding the post was of an inappropriate and threatening nature, and put the onus on her to explain herself. Try to pinpoint the content of these posts.
If you know of co-workers who may be this employee’s Facebook friends, interview them also. Follow the appropriate HR investigation procedures in gathering your information. Based on your investigative findings, take appropriate disciplinary action.
This is a situation that warrants the involvement of legal counsel early in the game. You should not attempt to log into the employee’s private Facebook account. You also should not ask any employees you interview to provide the log-in information for the employee’s account.
The law in this area is still developing, but court rulings have already found that logging into an employee’s nonwork, password-protected account can subject the employers to liability.
Do ask the employee to produce the post in question. Consult counsel regarding the type of action that would make the most sense under the circumstances and would minimize your exposure for any employment-related claim.
For more advice on establishing a social media policy, go to www.theHRSpecialist.com/socialpolicy.
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