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Having Your Cake and Eating It Too: Is This Facebook Discrimination Legal?

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by Lisa Johnson

over 2 years ago

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I am always banging on about how Facebook is not your friend when you are looking for a job, but here is a cautionary tale for employers on privacy and what not to do when a former employee bakes a cake that says 'F*%$ You' on it. In New Zealand, a lady by the name of Karen Hammond baked a cake to share with a small group of friends.  She iced her cake with the name of her former employer and 'F*%^ You' and then posted a picture of the cake to her Facebook account, making sure it was only available to her Facebook friends. A number of her Facebook friends still worked for her former employer, and it wasn't long before Karen found out that executives of the company had 'forced' a young employee (who was a Facebook friend) to copy an image of the cake. And here is where it goes horribly wrong for the employer…

  • The HR manager of the company forwarded the picture of the cake to several recruitment agencies and advised them against assisting Karen with finding new work.
  • The picture was also sent to Karen's new employer with a request that she be sacked and a refusal by the former employer to work with Karen's new employer while she was employed (the companies having conducted business together).
  • The former employer's chief executive also emailed all current staff concerning the photo and information relating to Karen's resignation.
  • Under duress, Karen felt pressure to resign from her new job.

Karen took her employer to court and was awarded NZD$168,070 in damages. 

Having Your Cake and Eating It Too: Is This Facebook Discrimination Legal?

Fundamentally, her former employer breached privacy laws when it distributed that photo to third parties (the recruiters and new employer) AND when it distributed information about Karen to current employees.  The former employer was also forced to admit that it was 'irrational' to press for her dismissal from her new employer.  

A significant portion of the pay out was for 'severe humiliation, loss of dignity and injury to feelings'. It amazes me that an HR manager would EVER think it was appropriate to send information about a former employee to recruitment agencies with a request for them not to work with them.  For a start, the information was unsolicited and without permission of the employee AND it has no relation to her employment (given that this all happened after Ms Hammond left the company).  

Privacy legislation is pretty straightforward, and I would have thought HR would have been all over that one.  Apparently not. And then, the chief executive sending emails to ALL staff regarding the former employee and the photo is as stupid as is stupid does.  

Regardless of the fact that Karen no longer worked for him, he is required to protect her privacy...forever. So here is the lesson for employers: it doesn't matter how mad it makes you or how unfair it might be – you can't send information regarding a former employee to third parties without permission. You definitely cannot disseminate information regarding their employment/resignation to all and sundry.  

The New Zealand Tribunal said clearly that 'The unrestrained use of personal information can cause devastating, if not irreparable harm to an individual.' The fact that this case was triggered by a photo on a Facebook page is interesting.  I often say that once it's on the internet, it's always on the internet. and you have no control over where that information goes, but this case shows that people cannot use pictures you have posted on your private account against you in an employment context. 

Given that more and more potential employers are looking at Facebook before making offers of employment, and so many people don't understand privacy rules on their Facebook accounts (e.g. your account might be private, but you may still have your Facebook profile pictures publicly available), I wonder if it is just a matter of time before discrimination accusations are made against employers based on profile pictures. The modern world is a social media minefield for both employers and employees.  

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