Michael Schmidt of Cozen O’Connor tells the LawJournal that employers who interact with employees online, outside of work, risk exposing themselves to liability.

Given that social networking sites are loaded with personal information, Schmidt said, a manager is bound to learn things about an employee that he or she will wish the boss didn’t know. Moreover, when a manager learns of some personal attribute through the site, the worker now has the opportunity to argue that any later adverse employment decision “was based on this personal information,” Schmidt said.

For example, a supervisor may learn from someone’s Facebook page that he or she belongs to a gay rights group. If the same employee is later fired for a performance problem, the employee could claim he or she were fired for being gay.

The LawJournal article is very employer-oriented. However, it raises a good point. Companies should clearly state in their social media policy whether subordinates and supervisors can interact online, outside of work. Of course, this raises a slew of other questions. Can the company enforce such a policy? What about co-workers adding each other? If a fellow employee sees something distasteful on a Facebook profile, they are just as likely to report it to higher-ups or start rumors that could get the company in trouble down the line.

My ethics professor often said that the difference between a good lawyer and a very good lawyer was the lawyer’s ability to spot problems coming from around the corner. Very good in-house counsel should be aware of this issue, and prevent it as best they can.

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