Facebook is Forever

The California constitution expressly provides that all persons have a right to privacy — or the right to be left alone. Although the right to privacy is fundamental, it’s not an absolute right. Generally speaking, some intrusion of privacy by an employer will be allowed if it’s justified by a compelling interest. A court would use a balancing test to determine whether your actions were constitutional.

The first step is to determine whether your employee had a personal and objectively reasonable expectation of privacy that you infringed.

There are several factors to consider — is her Facebook profile accessible to the public, or do her privacy settings limit access to her “friends”? Are you friends with her on Facebook? Does she regularly use the office computer? Was the information on her profile or her friend’s profile? If it was on her friend’s profile, is that profile public or private?

The key here is to focus on objective, rather than subjective standards. The question is whether a “reasonable person” in her situation would expect their boss to look at their Facebook profile, not whether she would expect you to do so.

The next question would be whether your conduct was reasonable under the circumstances, or simply, whether you had a really good reason for what you did. If you knew that she had been using the office computer, knew she hadn’t logged out of Facebook, and wanted to snoop, your actions were likely unreasonable.

On the other hand, if her profile was open on the computer and you wouldn’t have been able to use the computer without seeing it, that’s a different situation. You have a legitimate business need to use your computer and if her Facebook profile happens to be up, that’s not your fault.

It’s difficult to protect your privacy at work, especially if you work in a busy retail environment with a constant stream of customers.

The moral of the story is that employees shouldn’t put anything on Facebook that they wouldn’t want their boss (or anyone else, for that matter) to see. Facebook is forever.

Business owners should create clear policies about employee privacy. When an employer has a regular policy of inspecting or monitoring an employee’s Internet use, it’s reasonable to assume that an employee is not going to have a legitimate expectation of privacy in their Internet use.

Such a policy should be clear, easily understood, and administered fairly. It should be in the employee handbook, posted as a notice, or otherwise publicized.

Mary Hudson is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.