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Vol. 34, No. 5

Will you be my friend? New quandaries for a new age

by Dan Kittay

Sometimes it seems as though everyone wants to be your friend these days. On social networks such as Facebook and LinkedIn, everyone from former friends and colleagues to grade school chums wants to reconnect and find out what’s been going on in your life.

When you get a friend request from someone like that, it’s easy to decide whether to accept it. But what do you do if that request comes from a supervisor, or a bar member?

With bars creating a presence on sites such as Facebook, LinkedIn, and YouTube, the ability to spread the asso-ciation’s message increases. But so do the potential risks of personnel issues, for both current and potential employ-ees, say those who focus on such situations.

“It’s not a question of creating new claims or new causes of action from a social media standpoint. It is taking the traditional employees’ claims, and applying social media principles and uses to those,” says Michael Schmidt, a New York-based attorney in charge of the labor and employment practice at Cozen O’Conner.

In the case of a supervisor sending a friend request to a subordinate, there is the potential for harassment to de-velop from such a request, Schmidt says. “Whether it’s comments being made on a Facebook page, or instant mes-saging,” the same rules that prohibit sexual harassment can apply in social media conversations. “A supervisor may believe that because it’s a more informal setting, and it’s not within the four walls of the office,” it’s OK to say things that might not be allowed in the workplace, he explains. But that supervisor is wrong.

A boundaries issue

In addition to potential legal complications, “friending” a subordinate can put that employee in an uncomfortable situation, says Bonnie Sashin, communications director for the Boston Bar Association and a frequenter of Facebook and other social media sites.

“If a subordinate is asked to accept a friend request from a supervisor, it puts not-so-subtle pressure on the subor-dinate to accept the request,” Sashin says. “That could be potentially invasive.” It could also be problematic if one of the parties decides to “unfriend” the other, she notes.

“It’s a boundaries issue,” Sashin adds. “I try to keep certain boundaries with people who work for me.”

The issue of invasiveness also has potential legal implications, Schmidt says. If a supervisor learns something damaging about a subordinate, or the subordinate’s coworkers, through a social network relationship and feels com-pelled to act on that knowledge, the relationship may be considered an invasion of privacy.

Both for current and prospective employees, a supervisor might learn something that influences (or is perceived to influence) a hiring or promotion decision, such as whether the employee or applicant is pregnant. Since employers are not allowed to ask such questions or use that kind of information in making personnel decisions, an employee who feels discriminated against and discovers that the information was obtained through social media might make a legal claim against the supervisor.

“Friend” wisely

Schmidt recommends to companies that supervisors not be allowed to “friend” subordinates. Others note that there are other approaches that can avoid the awkwardness of rejecting a friend request but still minimize the chances of an employee revealing too much information to a supervisor.

Facebook, in particular, allows a user to determine what kind of materials specific friends are allowed to see, says Landry Butler, publications coordinator for the Tennessee Bar Association and a technology maven.

Butler, a musician and artist who is online friends with some TBA members, divides his friends into groups, such as attorneys and artists, and can allow information he posts to go to one or both of the groups. “Most of the stuff I post is safe for both groups, because I am careful about what kinds of things I put online,” he notes, but he has the ability to target something to a group if he feels the need.

His caution comes from the knowledge that most of what a person puts online, even through e-mail, can be “overheard” and potentially used against someone. “Sending an e-mail is not private,” he warns. “You might think it is, but it’s kind of like having a public conversation. If someone wants to eavesdrop on that, they can.”

What’s your policy?

Butler and Sashin both say that a lot of what will make social networking safe for bar staff is using common sense and good judgment. But can good judgment have different interpretations? And do people always know that their social networking actions outside of the workplace can reflect on the bar, especially if they are in a prominent posi-tion and have contact with many members?

That would seem to call for a policy, but there is not unanimity among those interviewed for this article on how effective a policy can be.

From an attorney’s viewpoint, prohibiting “friending” between supervisors and subordinates, and defining what materials obtained through social media can be used to affect personnel decisions make sense and should be clearly written in a policy, Schmidt says, adding, “You want to minimize potential exposures.”

Butler believes bar staff leaders do need to address the questions with staff and develop some sort of policy, but “not an extensive one. It can just be a list of recommendations.”

Sashin says that while there’s no harm in having a policy, she believes what will determine whether a bar has a healthy approach to using social media is having employees who understand and can use common sense and good judgment.

“If you were going to a formal luncheon and representing the bar, you wouldn’t show up in torn jeans,” she says, adding that the same thinking applies to what people should do online. Sashin prefers informal discussions among employees about these issues, rather than developing a policy.

One example: Intel

Searching online for social media guidelines turns up a number from commercial companies and few, if any, for associations or similar groups. One company that has put a lot of thought into how its employees should handle themselves on social media sites is Intel, maker of the chip that probably powers the computer on your desk.

In developing and publishing its guidelines, available at com/sites/sitewide/en_US/social-media.htm, the company wanted to encourage its employees to explore social media if they were so inclined, says Ken Kaplan, new media and broadcast manager in the company’s global communications group.

While many of the guidelines talk about not revealing proprietary information, and being sure to disclose that you work for Intel, some portions also cover the common practice of mixing the personal and professional. “We ask you to be aware that you’re doing that, and to be smart about it,” Kaplan explains. “We don’t tell people what they can and can’t talk about, except for confidential Intel information.

“We understand the power of these tools for the individual. If you bring the company along for the ride, now you need to follow our guidelines.”

Look before you leap

The pressure for bars to be a part of social media has been building for the past couple of years. While there are po-tential pitfalls to be aware of, there are, of course, many benefits to being part of the process as well. Butler recom-mends that bars take the time to learn about both aspects before jumping in.

“Historically, we sometimes trust technology that we don’t understand, more than we should,” he says. “If you don’t understand it, be careful. Find out what you’re getting involved in.”