February 22, 2011

Firing over Facebook photo — a violation of Minnesota law?

Posted in Employee Privacy, Minnesota Lawful Consumable Products Act, Social Media in the Workplace, Social Networking tagged , , , , , , at 9:34 am by Tom Jacobson

In several previous articles, I’ve commented on situations where employers have disciplined employees because of their Facebook posts.   CBS News is now reporting another such case which, if it had occurred in Minnesota, would have likely led to a courtroom victory for the employee (see Did the Internet Kill Privacy?, http://bit.ly/fKX0vW).

The story relates to Ashley Payne, a 24-year old school teacher from Georgia.  After Payne vacationed in Ireland, she posted on Facebook a picture of herself holding a glass of beer and a glass of wine.  The picture also contained some “profanity.”  Payne mistakenly assumed the photo would remain private, but of course it did not.  A parent of one of her students saw it and complained to the principal who then gave Payne the option of resigning or being suspended.  Payne chose to resign.

Forcing a Minnesota employee to make such a choice over photos of herself holding glasses of alcohol would likely have violated state law.  Minnesota has enacted the Lawful Consumable Products Act (see Minnesota Statutes, Section 181.938, http://bit.ly/fyiKcT).  This statute prohibits an employer from disciplining or discharging an employee who engages in the lawful consumption of alcohol or tobacco, provided that the consumption takes place off the employer’s premises and during non-work hours.  Consequently, no matter how opposed an employer may be to drinking and smoking, disciplining an employee or rejecting an applicant for engaging in these off-duty activities would be unlawful.

As the CBS story about Payne shows, it is nearly impossible to maintain true “privacy” on Facebook.  And, while it makes sense for employers to check Facebook and other sources for information about employees and applicants, extreme caution needs to be taken when deciding how to use the information gained — especially if it relates to lawful off-duty conduct.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

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