Featured Blogger - Molly DiBianca: Risks for Employers Who Use Facebook to Investigate Employee Fraud

In light of the recent increase in the number of employers who use the internet to research potential job candidates, it is only logical that more and more employers will begin to use the internet to monitor current employees, as well.  For example, an employer may suspect that an employee is looking for a new job.  A visit to LinkedIn, an online social networking site (OSN), targeted to professionals commonly used to seek employment, may quickly confirm those suspicions. Or, an employer may want to check the Facebook or MySpace page of an employee who has become hostile or bitter to make sure that no defamatory comments are being made about coworkers or colleagues.

  To listen for free to my podcast on the implications of social networking on workers' comp cases, click here.

Another reason that an employer may want to search for an employee’s profile online is the possibility of employee fraud.  It’s a familiar scenario.  An employee takes time off of work for a short-term disability, family medical leave, as an accommodation under the Americans With Disabilities Act (ADA), or because of an injury sustained on the job.  But while the employee is out on leave, the employer learns that the employee may not need that leave after all.

Let’s say an employee had to have surgery on his knee as a result of a fall at work.  The employee has extended his leave several weeks past his initial expected return-to-work date.  Then, you hear his coworkers talking about the employee’s stellar performance in that weekend’s softball game.

There was the Burger King employee who posted a video of himself bathing in one of the restaurant’s prep sinks.  Or the call centre employee who was busted when his employer found a “sickie plan” the employee had posted on Facebook after calling out of work.  And the employee who told her her boss that she was unable to travel home after visiting her family out of state because she’d come down with the flu.  Her boss logged onto MySpace and found new posts by the employee, including, "Back from Michigan. Called in sick to work ALL WEEK. Who wants to party???!!!"  The employee even posted pictures of her escapades the following day.

In the above examples, the employee is making the information available to the public.  The employer learns of the employee’s various wrongs as a result of the employee’s bad judgment—not because the employer was playing private detective.

When employers take it upon themselves to search the web for information about a particular individual, the legal risk increases substantially.  Before taking that step, employers should take the following steps to make sure they’re protected:

• Don’t search for no reason.  Be able to articulate a reasonable suspicion for thinking that the employee is engaged in wrongdoing.
• Document the reason.  There’s nothing better than having the paper to back up your claim if needed later.
• Make sure that the suspected misconduct is work related.  Otherwise, employers in states like New York and California risk suit for off-duty-conduct discrimination, which is prohibited in those states.

Publisher's Note: Molly DiBianca, our featured blogger this week, will discuss the intersection of social media, technology, and employment law and its possible implications for workers' compensation.