Unfriending Coworkers Could Get You In Legal Trouble

An employment attorney advises companies that bosses who unfriend their direct reports may unwittingly create evidence for workplace retaliation lawsuits.

Hey, boss, maybe it wasn’t such a hot idea to accept a friend add from one of your direct reports, but unfriending them could cause you bigger legal problems.

So advises Margaret M. DiBianca, a lawyer with Young Conaway Stargatt & Taylor, LLP, in Wilmington, Delaware.

DiBianca encountered a case where the employee alleged that her supervisor’s act of unfriending her was evidence of unlawful retaliation. She has this in mind when advising human resources departments about how to protect themselves from costly lawsuits, she explained in a telephone interview.

She believes that companies need to decide in advance whether bosses should send or accept friend add requests from employees on Facebook. If they do become friends, unfriending can be construed evidence of retaliation.

“The law says you can’t retaliate against someone for legally doing what they’re legally entitled to do. If an employee complains about discrimination, you can’t fire that person for complaining,” she said. “The question is, what is retaliation? Over the years the standard has broadened. Now smaller actions can cumulatively turn into an adverse action.”

If you’ve ever felt a personal sense of rejection from getting deleted from someone’s friend list, then you might understand why DiBianca equates the practice with retaliation. Like her November 12 entry on the law firm’s blog states:

The employee felt that the “unfriending” was the equivalent of what getting the “cold shoulder” – just in a virtual or electronic context. Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard – especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint.

Her discussion of unfriending is part of a much larger set of advice. She recommends creating company-wide policies on the use of Facebook as part of the larger strategy required to contend with record levels of of employee lawsuits.

“It’s not that employees are winning lots of lawsuits, it’s just that the quantity of suits being filed has gone up dramatically during the bad economy,” she explains. Workplace discrimination lawsuits go through the Equal Opportunity Commission before entering the court system, and the organization has reported peak levels of complaints.

As employers have had to get more proactive in creating policies to stem the tide of lawsuits, DiBianca has had a booming practice in advising companies on how to create rules for Facebook. “The two questions I get asked the most by employers are: 1. can we check people’s Facebook pages for background checks; and 2. what do we do about supervisors and facebook friend requests? And it’s not so simple as a yes or no answer,” she said.

Like most others in her profession, DiBianca expects that Facebook activity will continue to enter courtrooms as evidence. Friending on the social network enables what lawyers call discovery, or gathering of evidence. A simple act of unfriending can become proof that someone who complained suffered retaliation.

Ultimately companies have to decide how strict to make their boundaries, and there’s a wide range of possibilities, with no necessarily right or wrong choices. Here are a few of hpyothetical options that could become rules in employee handbooks, depending on how conservative an employer wants to be and the specificity of the state laws that apply:

  1. Supervisors may not send friend invites to direct reports.
  2. Supervisors may not accept friend invites from direct reports.
  3. Pre-existing Facebook friendships between supervisors and direct reports can be grandfathered in, but the supervisors must limit the visibility of their profiles so only a minimum amount of information can be seen.

Any of the above rules could easily backfire, making the workplace seem too confining, which could result in higher turnover. Readers, what do you think companies ought to do about setting policies on Facebook? How can employers find a happy medium in setting policies for social network usage?