Friends Without Borders: State Off-Duty Conduct Laws and Facebook-Friending Policies

In an earlier post, I discussed the implications of “friending” by employees.  I suggested that there are a few options for employers and how they handle this sometimes awkward social-networking phenomenon.  One option is to prohibit supervisors from making friend requests to their direct reports.

Patrick Della Valle, of ELinfonet.com, made an excellent point in a comment to the post.  He noted:

I believe that some states (like New York) have “recreational activities” laws that prohibit an employer from discharging an employee for engaging in lawful activity outside of working hours. I don’t know whether “friending” qualifies, but it’s something to consider.

His point about off-duty conduct laws is such an excellent one that it merits more than just a comment in response. 

Many states have laws that protect, to varying degrees, employees who engage in lawful activities or who consume lawful products during non-working time away from the employer’s property, from discrimination in employment.  The protections offered by these “off-duty laws” vary greatly.  On one end of the spectrum are laws that protect only a single, narrow activity–such as smoking or tobacco use.  At the other end are state laws that provide protection against employee termination for “legal recreational activities” or lawful activities” during off-duty time. The question of where, if at all, “friending” falls along this spectrum is an interesting (and complicated) one.

Only four states provide protections for off-duty lawful activity in the broad sense: California, Colorado, New York, and North Dakota. 

California

The California law, although broadly worded, offers the least protection.  The law has been interpreted by the courts as merely creating a procedural mechanism for already existing claims.  It does not create new substantive rights that could serve as the basis for a legal claim.  Thus, it does not appear that California state law would preclude employers from instituting the policy I described above.

Colorado

The nuance in the Colorado law is that its protections extend only to termination. Although the other states’ off-duty laws prohibit any type of employment discrimination, Colorado prohibits only termination based on lawful off-duty conduct.  Therefore, it appears that Colorado state law would not be triggered unless you terminated an employee for violating the no-friending policy.  Even then, Colorado may not be problematic because it makes an exception where the employee’s lawful off-premises, off-duty conduct constitutes a conflict of interest. 

A total prohibition of employee friending may not work in Colorado. But it seems that a ban on supervisors making friend requests to direct reports could be construed as a potential conflict of interest, making it less likely to violate Colorado law. 

North Dakota

Unlike Colorado, the North Dakota statute applies to all aspects of employment, not just termination, so it is more broad.  But, like Colorado’s law, North Dakota’s statute also provides for a conflict-of-interest exception; therefore, a ban on supervisor-to-direct-friending seems not to violate the law.

New York

New York’s statute is the broadest of the four states.  It covers all aspects of employment and is not limited to protection against termination.  Specifically, the law states:

Unless otherwise provided by law, it shall be unlawful for any employer . . . to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual . . . because of: (c) an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.

Based on the statute’s language, an employer in New York would not be permitted to prohibit its employees from making friend requests, provided (1) Facebook is considered a “recreational activity;” (2) the request is made during non-working time (i.e., outside the office); and (3) the request is not made through the employer’s computer. 

Think “Guidelines”

So, what’s an employer to do?  One option is to limit the prohibition to conform to the specifics of the N.Y. law.  For example, you could still prohibit a supervisor from making a friend request via Facebook to a direct report during working time or from a work-issued computer.  That may put some limit on it, though it’s not likely to be sufficient to address some employer’s concerns.

A practical alternative is to use the same prohibition as a guideline instead of a requirement.  The New York law does not prohibit an employer from implementing a set of guidelines that serve to educate employees about what is considered poor and proper etiquette when it comes to Internet behavior.

If your organization wants to address the possible problems that can arise from a friend request made by a supervisor to a direct report without violating the New York lifestyle-protection law, a guideline is a great way to do it.

Related posts:

Social Media Policies: What about my “friends”?

Sample Social-Media Guidelines

Warnings Against LinkedIn Recommendations: Justified or Propaganda?

Ethical Implications of “Friending” a Witness on Facebook

 

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