Lexology (10/01/15) Hillary J. Massey

A recent Mississippi court case highlights the role of social media in workplace investigations. A case was brought against a public school and teachers by parents of a high school student who was suspended from the cheerleading team due to her social media posts. A teacher who had received reports from students that the plaintiff sent threatening Facebook messages to another student required all of the members of the cheerleading squad to give her their Facebook usernames and passwords. The teacher then inspected their accounts, determined that the messages were indeed threatening, and suspended the plaintiff from the team for two weeks. According to the lawsuit, the Facebook search violated the cheerleader’s constitutional privacy and freedom of speech rights. The appellate court concluded that the teacher and the school were entitled to “qualified immunity,” meaning they were not liable for the Facebook search because the law concerning students’ rights to privacy was not clearly established at the time.

While there is no qualified immunity for private employers, some states do explicitly permit social media access during the course of an investigation into employment-related misconduct; others do not address the issue at all. Employers should consider training managers and human resource officials who handle such investigations to be sure they understand the limits of their authority.