Banking & Finance and Government and Media & Marketing

THERE OUGHT TO BE A LAW: Hey dude, the boss is parking in my space!

October 8, 2007

I'll admit it: Until recently, I thought "My Space" was simply where I stored "my stuff." My bad, it turns out.

Just ask that young staffer down the hall: The new place to see and be seen is MySpace, Facebook or one of the other online social communities. This summer, MySpace announced it had more than 70 million unique users in the United States-meaning nearly one in four Americans used the site, for a total of nearly 50 billion page views per month.

Of course, "social networking sites" aren't new; back in the day, we used to call them "pick-up bars" (LOL). What's different today, though, is how many people are putting their private lives out in the public square. And that's creating challenging issues for both companies and employees.

It used to be that what happened on your time was your business, not company business. Sure, there were times when "private behavior" had a direct impact on someone's career. As Phyllis Diller put it, "What I don't like about office parties is looking for a new job the next day."

Those situations aside, if Bob showed up at work on Friday, just a bit blearyeyed after a wild night with the boys, who cared, as long as it didn't affect his job performance, right? And if there were stories about Bob and some of the dancers, well, what happened there happened there-not at the office.

But what if MySpace brings the party into the work space? Would you feel different about Bob if you knew his lap dance escapade was available on your laptop, thanks to his buddy's camera phone and a MySpace page?

Now I'm not talking about employees using work computers on work time to edit their profiles or view other people's sites. You can have plenty of rules to deal with that. And I'm not talking about the embarrassment factor. A local businessman recently received more press coverage than he probably wanted when the media discovered he'd posted R-rated party pictures on his MySpace page-proving once more that discretion is the better part of valor and models still dig rich guys.

No, I'm talking about you-the employer-checking up on what your employees or potential employees are doing on their own time out in cyberspace, and then holding it against them.

You certainly wouldn't hire someone to peek in the windows of an employee's house if she forgot to close the blinds, right? But are you obligated to avert your digital gaze if she posts intimate or embarrassing details of her life on the Internet for all to see? And if you don't approve of what you see, then what? Fire her? Demote her? And do you tell her why?

What about potential hires? A survey last year by CareerBuilder.comfound that one in four hiring managers used Internet search engines to screen job candidates, and 63 percent of those firms rejected candidates based on information found on profiles like MySpace.

Oddly enough, many people have an expectation of privacy when they post something on the Internet. Other people believe the First Amendment protects anything they say online. We call these people "former employees." In case it's not clear: The government can't punish you for free speech, but your employer can.

Employers face potential danger as well. As I learned when I helped a Nigerian friend with his banking problems, you can't always believe everything you read on the Internet. Fake profiles abound on these sites and most high school kids are fluent in Photoshop. Are you sure that what you're seeing is even real?

In fact, the Indiana Supreme Court just accepted the case of a middle school student found delinquent by the juvenile court for faking a MySpace page for the school principal. The student posted vulgar and derogatory comments about the principal and certain school policies prohibiting decorative piercings. The Court of Appeals set aside the delinquency finding on free-speech grounds, holding that the state can't prohibit you from criticizing a government entity like a school, no matter how crudely you do it.

But you're not the government-so are you at risk if you make employment decisions based on what you find on your employees' profiles? And how will they ever find out? Those are the questions courts and legislatures are going to confront over the next few years; until then, chat up your lawyer before you hit the chat rooms.

In the meantime, as we sift through all the details of youthful (and not-so-youthful) indiscretions on these sites, I bet some of you are thinking the same thing I'm thinking:

I'm really glad camera phones didn't exist when I was in college.



Gifford is a partner at the law firm of Baker & Daniels in Indianapolis. His column appears monthly. This article is provided for general information purposes only and should not be regarded as legal advice for any particular situation. Gifford can be reached at 237-1409 or at ron.gifford@bakerd.com.
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