Myspace & resonable suspicion
aliciac
88 Posts
This was brought up a little over a month ago, but I didn't quite get what I was looking for in that post, a few opinions, but they were contradictory.
Here's what I have. A manager, on his own time, was looking up employees on myspace and found one who has pictures posted of himself getting high. So, this would not be a question as to whether or not someone was impersonating him, or if he was posting things to a blog that were untrue in the interest of 'being someone else' on the internet. They are pictures. Of course there could be something besides marajuana in the bong, but probably not. Does this constitute reasonable suspicion? It seems that it wasn't very reasonable for the manager to have looked the employees up in the first place, but now that we have the information what can we do? Just wait for some reasonable suspicion to show up while he's at work? BTW, this employee has a fairly safety sensitive job (lifting/moving heavy materials, some forklift work)
Here's what I have. A manager, on his own time, was looking up employees on myspace and found one who has pictures posted of himself getting high. So, this would not be a question as to whether or not someone was impersonating him, or if he was posting things to a blog that were untrue in the interest of 'being someone else' on the internet. They are pictures. Of course there could be something besides marajuana in the bong, but probably not. Does this constitute reasonable suspicion? It seems that it wasn't very reasonable for the manager to have looked the employees up in the first place, but now that we have the information what can we do? Just wait for some reasonable suspicion to show up while he's at work? BTW, this employee has a fairly safety sensitive job (lifting/moving heavy materials, some forklift work)
Comments
Given that you employ people in sensitive jobs my recommendation would be to stick with your normal methods of detecting illegal drug use: required testing, random testing, or reasonable suspicion based on observable behavior.
I have had the same thing happen!!!!!!!! Funny how that works. :-)
B'man
For whatever it's worth our policy allows r/s testing only after observable behavior on the job demonstrates the suspicion. Go figure....
1. "Company with reasonable suspicion drug testing policy sued for testing an employee after seeing him getting high on MySpace."
2. "Company sued after drug-impaired employee accidentally killed coworker -- company had reasonable suspicion testing policy and had seen employee using drugs on MySpace but failed to test."
(Okay, these are a little long for headlines, but you get my point.)
"Company Suspects MySpace Drugs, is Sued"
I get what you're saying though.
Another issue that worries us is that we're about to head into union negotiations with regard to this single location store and we don't want to look as if we're discriminating against the employees who recently voted for the union.
Or would you consider it something you should act upon? I think if the employee advertises their drug use, you should act upon it. Putting something on Myspace.com is the same as advertising it. Anything posted there becomes public information.
Good luck!
Nae
Looks like you are still getting contradictory opinions and all sides have valid arguments. This may be a non-win situation. Aren’t a lot of our HR problems like that???
You mentioned a couple of things to compound any precedent you may set depending on your coarse of action: union negotiations and reasonable suspicion. The expectation of privacy by employees, even if it didn’t get you in court could impact morale company wide. Definitely bring in your legal counsel that would be representing you for whatever direction you decide to go. I would also like to see one of the attorneys from MLS weigh in on this as blogs are getting to be a big issue. Resources in HR Hero for those of you that are subscribers are Curses, blogged again! What will you do when it happens to you?, Vol. 12, Issue 7, Kansas Employment Law Letter, October 2005 and also a couple Special Reports on electronic workplace.
Like any other investigation you would be conducting on another employee, get as much hard evidence as you can before acting. In addition to not being drugs, this photo may be very old, a twin brother, prank (how many photos of pregnant nuns have you seen at Halloween parties?). Most everyone will have a photo of them that could be taken out of context.
Sorry, my reply is so long but these technology related issues (blogs, miniature cameras and recording devices) are growing faster then we have resolved how to address them. I would like to know how you finally address your situation.
Toto
Our labor attorney advises on keeping a low profile before the union negotiations and we have pretty much decided that we'll do just that. We will however keep an eye on him for any outward signs of drug use and perform a reasonable suspicion test at that time.
I agree with the people who stated that advertising your drug use online where anyone can see it is plenty of cause for reasonable suspicion, but I also agree that since there is not a policy stating that we will do this kind of investigating it would possibly be descriminatory.
To be in compliance, training has to be given to the supervisors before they can send someone for such test. According to The Company Handbook, when we send someone for a reasonable suspicion test, we put him or her on suspension without pay pending the results (which are usually received within 24-48 hrs if the test is negative).
As per our contacts at “blank”, we would need to have some legal perspective for the test with some kind of documentation. We do need some kind of write up on the EEs actions/behavior. Attached is the form I received from the company handling our on-line training. They recommend we pull the person into the office and say, “This is what your behavior says. This is what we see going on. Will you take the test?”, without accusing them of being on drugs. Their suggestion is to have the drug AND alcohol test performed on all reasonable suspicions. We should escort the donor to the facility and escort them home until the results are received. Of course, if they refuse the test or it comes back positive, they are automatically fired. If the test comes back negative, the employee returns to work and we pull them into the office to address their behavior issue.
I think you made the right choice. I would be happy to e-mail you the form we use for observed behavior.
[email]aliciac@dunnlum.com[/email]
[email]tbostwick@pahrumpnv.org[/email]
You have a lot of good information and make many good points. We are working on creating a reasonable suspicion policy(we have previously only had a pre-employment drug policy), and I would love any information, including the form you mentioned, that you have to offer. My email is [email]mdifatta@mchscares.org[/email]
Do you know if there is a standardized list of behaviour that represents possible reasonable suspicion? Obviously, I know that slurred speech and such are behaviours to watch, but am wondering if there is something standardized to use to train supervisors.
Thanks for your help.
OUr outside attorney has told me that we need seperate Drug testing policy, substance abuse policy, and a drug free workplace policy. We have the drug-free workplace policy, but I'm a little confused as to why we need seperate drug testing and substance abuse policies. Any thoughts?
Thanks again!
Melissa
I agree with those who say overlook it - it's too gray to use it as reasonable suspicion. There are more employees in your company (all companies) who may have inappropriate photos posted and/or comments (alot of them talk about their party escapades). I wouldn't risk the ramifications on this one, keep Myspace out of your work place and your business decisions.
Your potentially pot-smoking employee in a safety-sensitive position injures someone while working, let's say a visitor to the facility. That visitor then sues the company for the injuries. You knew about that your employee was smoking marijuana, yet failed to test him or remove him from the position that he was in, which allowed him to injure the party now suing your company. Sounds like negligence to me.
What if you worked in a position involving children and found out that one of your workers was a pedophile--off the job, of course? Wouldn't you be concerned about what might happen on the job because of his off-duty predilections?
How about checking the website yourself to see if the picture is still there, and then confronting the employee to see if he has any reasonable explanation. Absent one (and I can't imagine how he would reasonably explain it away) require him to submit to a test. If he denies and you don't buy it, but the test comes up positive, then he's on the hook for violating your D&A policy, as well as lying to you. If he comes out clean, great. But a picture of the guy smoking pot, which he personally posted on a website, certainly gives rise to a reasonable suspicion in my mind. There is certainly no reasonable expectation of privacy on MySpace--the employee is advertising his violation of your policy to, quite literally, the world.
I agree with you. I think this will have to be decided in the courts though. I have read of several cases of employees being fired based on what their myspace page said. One had nude pictures of himself, but I can't remember the other ones (hmmmm...what does that say about me I wonder?) So far, I haven't read where anyone disputed the termination in court. Time will tell.
Good luck!
Nae
What kind of job did that person have where they were terminated for online nudity?
The story also had lots of cases of applicants not being hired because of the stuff they put out there while they were in college. The potential employers were concerned about image, but also about things like potential drug issues, etc.
It can be a mean cruel world sometimes.
Nae
>photos on the internet?
Here's one example: A female high school art teacher in our local school district was featured in nude art photographs that were taken and posted on the internet by a fellow artist. She was fired and, so far, has stayed fired.
[url]http://www.msnbc.msn.com/id/14007210/wid/11915829?GT1=8307[/url]
I will mention you on my blog if you do. (After I find time to start one)