There is much discussion of how employers can learn about relevant social media entries by employees. Sometimes this is needed to verify and understand problems – sometimes it’s intrusive, unwelcomed, and illegal.
It’s generally a bad idea to simply Google a name and see what appears, and don’t even think of asking for user names and passwords. But what about “shoulder surfing?” This is when a manager watches over the employee’s shoulder asks him or her to click-around to display certain problematic postings. For example, if an employee claims sexual harassment by another employee through texting, Facebook posts, blog entries, or personal email accounts. Without seeing the alleged harassment postings, how is the employer – or the legal system – to know for sure?
If evidence is seen, however – what to do then? Perhaps ask the employee to print the malicious content as evidence? But then the entire thread is needed to add context to the situation, and this in itself might seem intrusive and may dampen employee cooperation. And what if the bad employee deletes or changes entries later? Or what if bad messages are sent between personal (non-employer) devices such as cell phones, and outside of business hours? In most cases, these questions are unresolved, and laws vary from state to state.
Employers may wind up in trouble for trying to fix things, or for not trying.
Some states have tried to deal with this by passing social media laws, but these are often unclear and vary, as the social media landscape evolves. Maryland, for example, does not prohibit shoulder surfing at all. California limits it employer harassment investigations.
This uneven and unclear landscape highlights the need for employers to be careful in all areas of social media research on employees (and vendors/contractors/clients too), and company-wide policies across states must be carefully constructed. There is some talk of additional social media legislation on a national level, however this will likely not come about soon.
In the meantime, employers must take social media research on employees seriously, be well advised before attempting shoulder-surfing and other capricious Internet investigations, and move ahead carefully with good legal advice.