Slowly Stripping Away Privacy Rights?

Posted by Michael Schmidt on May 15, 2012

We have been starting to see more court decisions on the issue of whether private social media accounts can be discovered by a party in a lawsuit.   Most of the cases, however, have been in the context of a personal injury dispute (e.g., car accident, slip and fall, etc.).   Finally, a new case involving the discovery of social media in an employment lawsuit has now fallen into our lap.

In In re Penthouse Executive Club Compensation Litigation (federal court in New York), a group of former “entertainers in the Penthouse Executive Club” brought a wage and hour lawsuit against their employer.   In what was nothing short of naked ambition, the employer requested that the court compel one of the Plaintiffs to produce nine pages of Facebook messages that she exchanged with other Plaintiffs, and with non-parties, about the possibility of others joining the suit.  

Interestingly, the exotic nature and characteristics of social media did not really factor into the reasoning of the decision to partially grant (and partially deny) the employer’s request.   Indeed, the holding was fairly anti-climactic, with the privilege and work product doctrine analysis the same as it would have been if any other non-social media or non-electronic document had been at issue.   

District Judge Kimba Wood took the pole position on this issue, and made the following rulings:  

  • As a threshold matter, Facebook messages constitute “correspondence”, which in turn are within the definition of “documents and tangible things” that can be shielded from discovery as protected “work product”.

 

  • Facebook messages sent by Plaintiff to non-parties who might join the case were “prepared in anticipation of litigation,” and, therefore, protected from discovery as “work product” because they were “descriptions of conversations with Plaintiffs’ counsel regarding litigation strategy, as well as responses to questions about the lawsuit.”   The messages were not, the court noted, “prepared in the ordinary course of business or personal life.”

 

  • Sending the Facebook messages to non-parties did not constitute a waiver of the work product privilege because the recipient had a similar interest as Plaintiff that was not aligned with the Plaintiff's adversary in the lawsuit.

 

  • However, Facebook messages sent by non-parties to the Plaintiff were not protected by any privilege, and had to be produced to the employer.

Employer Take Away:   What should you as an employer take away from this development?   

It is worth the reminder that there may be times when your company can discover social media messages and posts that may be helpful to your lawsuit.   It is also worth remembering that the flip side remains true as well:  what you and your employees write and post through social media (particularly on company owned or sponsored sites) may be discoverable by the other side, and could potentially prove damaging to your case.

Bottom line is that you should train your employees about the virtues and perils of “speaking” through social media, and continue to stress the notion that the ease and informality of social media does not eliminate the possibility that what is said could be used against the company.    By continuing to train your employees in that regard, you will maximize the likelihood that any of your lawsuits will have a happy ending.

Speech Through The Social Media "Like" Button

Posted by Michael Schmidt on May 08, 2012

What does it mean to “like” something?   That is one of the next intriguing questions facing us as we roll down the uncharted path of applying traditional activities and claims to the modern social media era.   Webster’s Dictionary defines the verb “like” as “to be pleased with; enjoy” and “to wish” and be “in the mood for”.    Wikipedia adds, specifically with regard to online communities, that it serves to display one’s “personal attraction, acknowledgment or sympathy with the ‘liked’ object.”

I’m not sure that really answers the question of what it means to “like” something.    It’s like when a spouse asks how he or she looks in a new outfit, and you answer with some trepidation:  “Uh, I like it.”   I guess it’s a better answer than “it’s interesting”, but what did you really mean?   And your “I like it” could have dire consequences, the likes of which may be more appropriate for discussion in my firm’s matrimonial blog.

But two recent employment developments in the news highlight the consequences that could arise in this area too.  A Sheriff in Hampton, Virginia recently fired six of his workers when one of them “liked” the Facebook page of an individual running against the Sheriff.   The employees sued, and on April 24th a federal judge in the Eastern District of Virginia dismissed the lawsuit, holding that the employees were not entitled to free speech protection:  “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

Also making the news is a recent discrimination claim filed with the EEOC by a man who alleges that the Library of Congress harassed and then ultimately fired him because his homosexuality did not comport with his supervisor’s views on sexual orientation and religion.    The man’s homosexuality was gleaned only after it was learned that he “liked” a Facebook link to a group that supports gay adoptions. 

It is an interesting concept.    So far, the cases we have seen involving employment decisions based on social media conduct include some actual words being spoken, or some specific activity being conducted.    Here, there are no explicit words or acts, but only a click of a “like” button that prompts the employer’s response.    So what does it really mean to “like” something?    I don’t know.  Is “liking” something akin to substantive speech?   Doesn’t context matter?   We see that an act, statement, and even those annoying list of shorthand acronyms have a very different meaning in the informal social media world than in the “real” world.

What does it mean to “like” something?   So, like, perhaps you are supporting and aligning yourself with the content.   Perhaps you are simply supporting the fact that the person you’re “liking” is doing something out in public.   Or, without even intending to signal approval or disapproval of content, perhaps you are merely “liking” it so that your own Facebook friends can see a particular link, photo, or update on your own page.

Employer Take Away:   What should you as an employer take away from this development?   

I like to think there will be additional contexts in which this “like” issue will arise for your company.   For example, whether an employee is providing an inappropriate endorsement or testimonial under FTC guidelines simply by liking a product or service.   Or, whether an employee violates your no-reference policy simply by liking a former colleague on Facebook.  Or, whether your employee is truly intending to speak substantively by clicking a button referring to a person, place or thing that your company finds objectionable.    I am not yet convinced that a simple "like" can ultimately amount to substantive protected speech or activity, particularly because of its patent ambiguity.   Still, depending on the factual context (and the level of public emotion on the issue), there may be consequences to your company if you simply act based on a “like”.   As always, be careful when acting.

The issues here continue to develop and raise brand new questions.  Which is why I like to monitor and discuss them.

From First To First - Maryland Governor Signs New Social Media Law

Posted by Michael Schmidt on May 07, 2012

It is amazing how fast a legislative body can act when it wants to.   Just last week, Governor Martin O’Malley of Maryland signed the country’s first law restricting employers’ ability to demand social media account information from applicants and employees.   Maryland was the first to propose this type of law, and is now the first to enact it.  

The Maryland law takes effect on October 12, 2012, and contains the following highlights:

 

  • There is no “small employer” exemption, and covers all employers, as well as “an agent, a representative, and a designee of the employer.”   Employers cannot avoid liability by contracting out to have someone else do what the law prohibits.

 

  • An employer is prohibited from requesting or requiring an applicant or employee to “disclose any user name, password, or other means for accessing a personal account or service through” a computer, telephone, PDA, or similar device.   An employer may, however, require the disclosure of a user name and password to access non-personal accounts that “provide access to the employer’s internal computer or information systems.”   (The difference being personal accounts versus work accounts.)

 

  • An employer cannot terminate, discipline or penalize an employee (or refuse to hire in the case of an applicant) based on a refusal to disclose any prohibited information (which the employer is now no longer able to ask for in the first instance).

The new law also contains a prohibition for employees:   An employee “may not download unauthorized employer proprietary information or financial data to an employee’s personal web site, an Internet web site, a web-based account, or a similar account.”

Employer Take Away:   What should you as an employer take away from this development?   

The race is heating up to see which jurisdiction will follow Maryland in enacting a similar law.   Illinois and California have measures that have recently passed through legislative committees, while bills are still being considered in New York and on the federal level.    Be cautious about how you go about obtaining social media-based information to reach decisions about your applicants and employees, and stay tuned for more developments in this area.

Two New Decisions On Two Old Fronts - Part 2 of 2

Posted by Michael Schmidt on May 04, 2012

On Tuesday, I posted about a recent development on the issue of Facebook firings, and how we can continue to develop the applicable standard for analyzing that issue as the decisions keep coming.    Today, I note the recent decision in Tompkins v. Detroit Metropolitan Airport, a case from the federal court in the Eastern District of Michigan, which addresses whether you can discover one’s private Facebook account information in the context of a lawsuit.

The decision should not be considered as just another case from another judge in another forum.   Rather, it is worthwhile to assimilate all of the decisions on this issue as well, and notice the emerging standards that will be applicable to your next lawsuit when this issue comes up.    True, Tompkins involves a slip and fall case, but the rule of law articulated is no less applicable to our employment law world. 

The defendant in Tompkins demanded that the plaintiff provide signed authorizations permitting the defendant to access plaintiff’s prior medical records and records from her Facebook account.    Plaintiff provided the medical authorizations (her physical and emotional state were clearly at issue), but refused to provide access to her private Facebook pages.    In ruling on the defendant’s motion to compel production, the court first reaffirmed what has become a starting premise in this area:  That even “private” profile information that is not available to the general public is not automatically shielded by any privilege or general privacy right.    Balancing that, however, is the premise on the other hand that a defendant “does not have a generalized right to rummage at will through information that plaintiff has limited from public view.”

That is the key, then.    Balancing.   And that is what the court in Tompkins did.   The court found that the defendant’s purported connection from what was on plaintiff’s public pages to what may be on her private pages, was tenuous at best:

“If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.  But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.”

Employer Take Away:   What should you as an employer take away from this development?   

The theme is important, so it’s worth repeating.   You should not do, just to do.   In other words, just as you should no longer be trigger happy with adverse employment actions taken without a plan, you (and your attorney) also should not necessarily turn a request for social media account information into a boilerplate, form request in litigation.   

There should be a strategy and a plan.   Figure out precisely what you need, and why you need it, and do sufficient due diligence with the publicly-available information so that you can make the best case to the judge as to why you absolutely need access to what you are seeking.    You may not get a second bite of the apple.

Two New Decisions On Two Old Fronts - Part 1 of 2

Posted by Michael Schmidt on May 01, 2012

Speculation starts to become educated positing as decisions in our area of discussion continue to be issued in greater numbers.   Two recent decisions involving social media and employment law are worth noting:  one on Facebook firings (today), and one on the discovery of social media accounts in litigation (Friday).

This past Friday, an Administrative Law Judge at the NLRB issued a decision after holding a 3-day non-jury trial in February.   The case involved three employees who were fired by a San Francisco clothing store (Bettie Page Clothing).    The ALJ found that the employer violated the employees’ “protected concerted activity” rights under the National Labor Relations Act (“Act”) when it fired the employees for various Facebook posts, and further violated the Act by implementing an overbroad handbook policy.    

The ALJ’s decision is heavy on the background details and the sequence of events leading up to the termination.   It is worth a perusal.   In terms of the first violation, the gist is that the employees began posting comments on Facebook that criticized their store manager and how the manager treated employees, as well as “presented the concerns of the employees about working late in an unsafe neighborhood[.]”    The ALJ ruled that the employer failed to meet its burden of showing that it would have fired the employees even without the offending posts.   Reading between the lines, though, it is clear right from the first lengthy footnote on page 2 of the decision that the ALJ was not happy with counsel’s demeanor and litigation tactics, or the credibility of the employer witnesses. 

On the second violation, the ALJ found that the employer violated the Act by “maintaining a rule that forbids employees from disclosing wages and compensation” to other employees or third parties.   Although the employer removed the improper policy from its handbook right after a complaint was issued in this case, there was no evidence that employees were ever actually informed of the change.  

We will see how this decision holds up on appeal.  For now, the ALJ has required the employer to reinstate the employees (that should be a fun morning hello), compensate them for lost back wages, and post a notice in the store that states both that the company has violated federal law and the rights that employees have under the Act.

Employer Take Away:   What should you as an employer take away from this development?   

There are a few take-away’s.   First, don’t piss off a judge.

Second, emotions seemed to play a part in the employer’s underlying decisions after learning of the Facebook posts.    Stay away from trigger-happy decisions, and give careful consideration to what should (and can) be done in the face of social media activity that you deem to be inappropriate.

Third, as with any adverse employment decision, make sure you are on solid ground for your decision, and, particularly, that your documentation is effective and backs up your stated reason for the adverse decision.   There’s little worse at trial than documents that are inconsistent with the testimony of your corporate representatives.

Fourth, make sure you review your handbooks and policies for compliance with the most recent developments in this area of the law.   And when you do act to change something in good faith, make sure you tell your employees.   It does nothing to create proper policies if those policies are not communicated and enforced appropriately.

Live Social Media/Employment Law Webinar With Yours Truly

Posted by Michael Schmidt on April 26, 2012

I am grateful for having been asked to present a live two-hour webinar on Wednesday, May 23, 2012 (12:00 to 2:00 p.m. ET) to present current developments in the area of social media and employment law.    The webinar is being sponsored by ALM/Law Journal Newsletters, and you can CLICK HERE for a direct link if you want to register.   10% off if you register today….

Employer Take Away:   What should you as an employer take away from this development?   

From the comfort of your own computer, this webinar will explore the rapidly-evolving legal standards and government regulations involved in the interplay between social media and employer/employee relations.   We will present the top 10 social media and employment law issues that your company will be facing in 2012 and beyond.   Topics will include: 

  • Defining social media issues in the employment context
  • Identifying problem areas that employers should be watching closely
  • Suggesting steps that employers can take when a problem is identified
  • Offering real-world examples of social media blunders in the workplace

The webinar will conclude with a question and answer period.   I hope you can make it.

 

From "Eat Pray Love" To "Eat Shop Sleep"

Posted by Michael Schmidt on April 23, 2012

In 2010, we watched Julia Roberts search the world to find herself in “Eat Pray Love.”   If only she had the latest app to help her find law-compliant places to visit along the way.   What would she have found out about your company?

As an employer, it has always been important to consider how employees believe you treat them.   However, it is also important to note how the consuming public believes that you treat your employees, since your company goes nowhere without those who use your services or products.   Add that capability to the list of currently-available “apps” from our federal government.

News reports from recent months have described the aggressive campaign and initiatives of the United States Department of Labor (“DOL”) aimed at targeting certain industries’ compliance with wage and hour laws.    The DOL has just issued a press release that describes its latest initiative, this time focused on certain “common violations” that occur in the restaurant industry, such as the failure to pay for hours worked, an employer’s “off the clock” requirements, the misclassification of employees as “exempt” for overtime purposes, and illegal deductions made for uniforms and lost/spoiled inventory.

Social media has a place at this dinner table too.   Introducing, the latest smartphone app:   “Eat Shop Sleep”, which can also be found among the DOL’s “application contest winners” on its home page.   As the DOL’s press release touts:

“Consumers, employees and other members of the public can use the app to learn if a restaurant, hotel or retail establishment has been investigated by the [DOL] and whether [wage and hour] violations were found.  Businesses will have a greater incentive to comply with the law now that their compliance track records are publicly available.”

Employer Take Away:   What should you as an employer take away from this development?   

Whether it is requiring that your company post notices of employee rights, or facilitating the use of apps for employees and the public to see whether your company is violating employment laws, the government (through social media) is making sure the smarter workforce that exists in 2012 stays that way.

But even if you don’t own or operate a restaurant, there is no rhyme or reason to where (or when) the DOL might randomly target another company or industry.  You (and your industry) can be next.   Comply with employment laws because you want to minimize your economic and non-economic exposure, because you want your employees and customers to know that your company complies with the law, and because it is simply the right thing to do.   And doing so will also allow you to eat, shop and sleep with peace of mind.

Frenetic Foils and Further Facebook Follies

Posted by Michael Schmidt on April 17, 2012

Things just keep moving and changing, which I suppose is what makes this area of the law so fun and interesting.   Like a ping pong match, I’ve been back and forth over the past several weeks updating developments on the NLRB’s April 30th posting deadline (as recently as yesterday’s blog), as well as the legislative trend toward prohibiting employers from demanding access to social media accounts.   Today, some new developments on both fronts.

Foiling the NLRB’s April 30th Posting Deadline

As you know, the federal court in South Carolina just held that the NLRB’s posting rule is invalid, reaching the opposite conclusion of the federal court in the District of Columbia.   However, just today, the United States Court of Appeals in DC granted an injunction barring enforcement of the NLRB’s posting requirement in light of the “uncertainty about enforcement” due to the current litigation landscape.”   The April 30th deadline now appears to be no more.

Further Facebook Follies

Some interesting, yet predicted, developments on the issue of demanding Facebook account information.    Maryland just went from first to first (yes, you read that correctly).   It was the first state to have proposed legislation on this issue, and now has become the first state to actually pass legislation on this issue.    Once signed by Maryland Governor O’Malley (expected any day), the law will become effective on October 1, 2012, and would, among other things, bar employers in that state from demanding access to an employee’s or applicant’s social media passwords.

It doesn’t stop there.   New York has just joined the fray as well, with New York State Senator Liz Krueger introducing a bill (S. 6938) that would prohibit employers or their agents from demanding personal social media account information, and expressly state that a refusal to provide such information cannot form the basis of an adverse hiring decision.     The State of Washington just introduced a similar bill in its legislature, which also comes on the heels of the proposed federal legislation that continues to make its way through the halls of Congress as a means for developing a national position on this issue.

Employer Take Away:   What should you as an employer take away from this development?   

Keep watching.   There’s certainly more still to come.   On the posting issue, there’s, again, no need to clear off the wall space prior to April 30th, but I suspect that this issue is far from over. 

On the social media password issue, if you’re doing business in Maryland, you will soon be prohibited from demanding personal social media account information.  Elsewhere, you are wise to seek guidance on whether your hiring practices may be limited by existing (or proposed) legislation in the jurisdictions in which you have offices.

NLRB Posting Rule: Neck and Neck at the Finish Line

Posted by Michael Schmidt on April 16, 2012

April is typically known for its tax deadline (extended until tomorrow).   In employment law circles, it has also been known this year for the April 30, 2012 deadline by which virtually all employers are required to post a notice informing employees about their rights under the National Labor Relations Act (the “Act”).   You will remember my March 5, 2012 post, which followed my January 4, 2012 post, which followed my October 13, 2011 post, on this horse race that is the dueling litigation over whether the NLRB had the authority in the first place to promulgate its notice posting rule.

My March 5th post told you that the United States District Court for the District of Columbia sided with the NLRB, upholding the agency’s right to implement that rule.    A request to temporarily enjoin enforcement was rejected, paving the way for the April 30th deadline to remain.   But wait – this past Friday the 13th added a little mud to the track, as the United States District Court for the District of South Carolina reached the completely opposite decision.

Right up front, you could tell where the South Carolina court was heading in its decision on Friday.    It first provided general background about the history of the Board, noting that:

“For over seventy-five years, the NLRB has been nearly unique among federal agencies in not requiring employers to post a general notice of employee rights in the workplace.  On December 22, 2010, the Board changed course and issued a proposed rule[.]”

Unlike other federal agencies, the court noted, the NLRB has traditionally served as “a reactive agency”, whose processes “are begun only when requested.”    Noting that the Act itself “does not require employers to post general notices of employee rights”, the South Carolina court ultimately ruled that “the plain language and structure of the Act compel a finding that the Board lacks authority . . . to promulgate the rule.”

Employer Take Away:   What should you as an employer take away from this development?   

It is worth repeating that this may or may not be anything more than the undercard of a larger racing day.   On the one hand, there are those who believe that, in this day and age of social media and the Internet, employees can get all information elsewhere and are otherwise numb to legal postings in the office, and so this whole issue is much ado about nothing.    On the other hand, this issue may still be a referendum on expanding government intrusion into the private workplace.   Either way, it is certainly still worth taking out your binoculars for the stretch run.

The plaintiffs in the District of Columbia case have already appealed that decision, and the NLRB will more than likely appeal this South Carolina one.   Both can be reversed, one or the other could be reversed, and perhaps the U.S. Supreme Court will place a horse in this race.   Even more unclear is what happens two weeks from today.   Will Friday’s decision apply only to employers in South Carolina?   Will the NLRB voluntarily suspend enforcement for all employers?  

Keep your eyes and ears open, as further developments will occur.   You may still want to keep a space available on your cafeteria wall, but perhaps you can continue to hang the employee-of-the-month plaque in that space for a few more days.

Social Media and Criminal Convictions

Posted by Michael Schmidt on April 04, 2012

Sometimes it’s good to revisit past issues, particularly when they become topical again.   Over the past few weeks, we have seen and read about social media being used to find certain information about job applicants.   The question remains out there, however, what can you do with the information once obtained? Even if you obtained the information appropriately.   Back on September 30, 2010, I touched on the issue of prior criminal offenses, and what employment decisions can be made based on such offenses.  The title there remains one of my most popular:  "Can a former prostitute perform a job for you?"  It is worth a reminder of the do’s and don’ts in this area.

One type of information that social media can help employers get is information on prior criminal history.   And, there are employers who believe that they can simply refuse to hire someone if it is discovered that the applicant was previously convicted of a crime.   But, as I’ve often preached, do not be trigger happy with the information you get.

Many states have laws that deal expressly with making employment decisions based on criminal history.   For example, New York devotes an entire article in its Corrections Law to the issue, prohibiting a private or public employer from denying employment, or acting adversely with respect to current employment, based on an individual having been convicted of one or more criminal offenses, unless:

(1)  there is a “direct relationship” between the previous criminal offenses and the specific job position sought or held; and

(2)  hiring or continuing the employment of the individual “would involve an unreasonable risk” to property, or the safety or welfare of a specific individual or the general public.

And there’s more.   New York’s law requires employers to consider eight very specific factors before determining that elements (1) and (2) above actually exist.   Among those factors are the nature of the specific duties essential to the position, the elapsed time since the conviction and the age of the individual, and the seriousness of the particular offense.    Under that statutory scheme, employers will ultimately be forced to prove that all eight of the factors were considered, and, upon request, must provide a written statement setting forth the reasons for refusing to hire an individual who was previously convicted of one or more criminal offenses.

Employer Take Away:   What should you as an employer take away from this development?   

It continues to be all about mindset.   Your company needs to determine in the first instance whether and to what extent you want to (permissibly) seek certain background information about your potential or current employees.    When you do obtain information, such as information about prior convictions, you must then consider whether your particular jurisdiction allows you to rely (in whole or in part) on that information.   Don’t just act without thinking.