Social Media Employment Law Blog - Current and Developing Issues in Social Media and Employment Law

Those loyal readers of this blog know that the focus tends to be on what your company can and cannot do regarding social media use by potential employees (i.e., applicants) or current employees.   But there is a third category of employees that warrant a share of the spotlight here:  former employees.

Like some of the prior issues in this blog, such as addressing who maintains ownership of social media accounts and followers upon an employee’s separation, how your company proceeds with respect to what an individual who no longer works for your company says or does through social media is of vital importance for you to consider as well.

Which brings me to the interesting decision in Jefferson Audio Visual Systems, Inc. v. Gunnar Light from a federal court in Louisville, Kentucky.   The defendant Light was a Managing Director of International Sales for JAVS (the plaintiff employer).   JAVS asked Light to meet with the company’s sales agent in South Africa to arrange for a potentially lucrative sale of audiovisual systems.  Unfortunately, according to the complaint, Light made several defamatory statements to the sales agent about JAVS during his meeting, which resulted in a mere $150,000 sale, rather than the $20 million in gross revenue that the company had anticipated.   Shortly after, JAVS fired Light and then filed a lawsuit against Light alleging fraud, defamation, and other claims.   Light sought early dismissal of the lawsuit.

Of interest here is JAVS’ claim for “fraudulent misrepresentation”:

"JAVS claims that for several months following Light’s May 9, 2011 termination from JAVS, Light falsely represented on social media outlets, such as LinkedIn, that he held the positions as JAVS’ International Managing Director after his date of termination.”

It apparently took three company requests (and threats) before Light changed his profile page to remove any representation as to his then-employment status with JAVS.

Seem clear cut?    Not necessarily from a technical law standpoint (why does the law so often get in the way of you running your business?), as the court dismissed the fraud claim despite Light’s reference to being an employee of JAVS even after his termination.  The problem was that, under Kentucky law, a fraudulent misrepresentation claim required proof that the company was defrauded by the LinkedIn representation.  Here, at best, JAVS was alleging that third parties and the public would have been defrauded.  As a result, Kentucky law offered no legal solace.

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

If your company’s office is in Kentucky, maybe not much.   But for the rest of you, there are some valuable reminders here.

Whether or not you ultimately take any action based on what you learn (and that should be the subject of a different, and detailed discussion), your company should continue to mine the social media trails of any employees who leave your employ.   First:  just because they don’t appear to be disgruntled when they leave, it doesn’t mean that your valuable interests are not put at risk, even unintentionally.    Has your employee disclosed information online that the company considers to be highly proprietary or trade secret information?   Has your employee made statements that would be considered defamatory, or in violation of a non-compete or non-solicitation agreement?

Second:  just because Kentucky law may not provide a common law remedy to the problem in this case (at least based on the arguments raised by the parties in this case), it doesn’t mean that the jurisdiction in which you conduct business does not.    There are many reasons not to be complacent (or even complicit?) when a former employee says or does something through social media that threatens your trademark or trade secrets.   Your jurisdiction may recognize a fraud-based claim under these facts, or perhaps an alternative common law or statutory theory worth pursuing.  

For as we have said before, the worst thing you can do is close your eyes and pretend that social media does not exist.

It is not, as many recent articles and blogs have discussed, just about whether relevant social media information can be discovered by one party in a lawsuit.  It is also about what happens when a party fails to preserve potentially-relevant social media information in the first place, and that information subsequently gets destroyed and becomes non-discoverable.   A federal district court judge in New Jersey recently upped the ante.

In Gatto v. United Air Lines, the plaintiff was an airline ground operations supervisor who was injured when a set of fueler stairs crashed into him.  As is typical nowadays in the personal injury world, defendants sought social media account information in discovery to obtain relevant information about plaintiff’s damages and social activities, all in an effort to defend the personal injury claims.   In the course of a dispute over the scope of access, plaintiff’s password was given to defense counsel, who apparently (and without plaintiff’s or plaintiff’s counsel’s knowledge) accessed plaintiff’s Facebook account and printed some portions of the Facebook page.

Not knowing that defense counsel had accessed the account, plaintiff received a notice from Facebook advising that his account had been accessed from an unknown computer.   As a result, plaintiff deactivated his account, which resulted in all of the information and documents being lost due to an automatic 14-day deletion practice of Facebook upon a deactivation.   Defendant requested that the court penalize plaintiff with sanctions for “spoliation”, which essentially means the destruction or significant alteration of evidence, or where a party fails to “preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

The court agreed with the defendant, finding that “it is beyond dispute that plaintiff had a duty to preserve his Facebook account at the time it was deactivated and deleted.”    But the court went further, noting that plaintiff’s intent (or, more pointedly, any lack of a nefarious intent) was largely irrelevant:

“Even if Plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there is no dispute that Plaintiff intentionally deactivated the account.  In doing so, and then failing to reactivate the account within the necessary time period, Plaintiff effectively caused the account to be permanently deleted. . . .  As a result, Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff’s damages and credibility.  In light of all of the above, a spoliation inference is appropriate.”

For those scoring at home, a “spoliation inference” is an instruction that a judge gives to a jury at the end of a trial that allows them to draw an inference that the contents of destroyed evidence would have harmed the party that prevented production of that evidence.  

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

Court decisions are going to continue to be issued, not only about social media discovery, but about the affirmative duty to preserve social media information in certain circumstances, and the consequences of not meeting that duty.   The rules apply equally to plaintiffs and defendants, and will apply across all types of cases, including employment law cases.

A couple of lessons for you and your company:

            1.         When your litigation is deemed appropriate for discovery on social media, make sure requests are served on the employee’s counsel as soon as possible.   It is certainly at that point, if not sooner, that the employee will have a duty to preserve potentially-relevant information that can be obtained through social media, and ensure that it does not get destroyed even unintentionally.

            2.         It is equally critical to understand that the preservation rules apply to you.   Make sure the appropriate “litigation hold” memo is distributed to the appropriate custodians at the appropriate time, and make sure that the memo includes all potentially-relevant social media sources as well.

Happy New Year.   So much has happened while you spent the holidays undoubtedly velobinding and wrapping the 2012 archives of this blog for your friends and loved ones.   So I thought I’d welcome everyone back by updating some old (i.e., December 2012) issues.   Sort of a New Year buffet.

Chafing Dish #1 - NLRB and Facebook Firings.   You may recall that on September 7, 2011, I posted about the case of In re: Hispanics United of Buffalo, Inc. which arose from the termination of five employees who engaged in a conversation on Facebook that started with:  “Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it!  My fellow coworkers how do you feel?”   A discussion among co-workers ensued, which included some derogatory remarks toward another coworker.  Three days after the initial post, the company terminated the posting employees on the ground that “the posts constituted bullying and harassment and violated HUB’s policy on harassment.”

A hearing was held on July 13^th-15^th, and the Administrative Law Judge (“ALJ”) subsequently determined that the employees were fired in violation of their rights to engage in concerted activity.   On December 14, 2012, the NLRB (on appeal) affirmed the ALJ’s rulings, findings and conclusions.   In an almost defensive-sounding tone (to, perhaps, suggest that the NLRB is not really that activist a board at all), the NLRB began:  “Although the employees’ mode of communicating their workplace concerns might be novel, we agree with the judge that the appropriate analytical framework for resolving their discharge allegations has long been settled[.]”   The NLRB agreed that the Facebook postings were concerted and protected, and that the 5 employees were discharged “based solely on their postings.”

Chafing Dish #2 – Discovery of Private Facebook Posts in Employment Case.   In the most recent case of disclosure trumping privacy, a federal magistrate judge in the Eastern District of New York on December 27, 2012 permitted a defendant to obtain a wide-array of private Facebook posts and pictures.  In Reid v. Ingerman Smith LLP, plaintiff brought a sexual harassment suit against her former law firm employer.  

Noting the critical point that defendant had sufficiently tied the publicly available evidence to what would reasonably be expected from the private portions, the court held: 

“After examining the submissions, this Court finds that the photographs and comments that plaintiff posted on her publically available Facebook pages provide probative evidence of her mental and emotional state, as well as reveal the extent of activities in which she engages.   I also find that plaintiff’s private postings may likewise contain relevant information that may similarly be reflective of her emotional state.”

Chafing Dish #3 – Facebook Password Demands.   On December 28, 2012, Michigan became the fourth state (after, say them with me:  Maryland, Illinois and California) to enact a law prohibiting the (not so prevalent?) conduct of demanding an employee’s social media password and account information.   Michigan’s Governor Rick Snyder signed into law the “Internet Privacy Protection Act” which provides that private and government employers cannot request or demand that an employee or applicant grant access to or allow observation of private Internet accounts, and similarly cannot penalize an employee or applicant for failing to do so.

Interestingly, to address the trend of schools looking at social media for potential enrollees, the new Michigan law also provides similar limitations on public and private educational institutions.    The law allows for civil and criminal penalties for violations, and became effective immediately upon signing.

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

I hope 2012 has not made you too full to consume more about social media and employment law.   2013 will likely bring continued and new developments in this area, and we’re just getting started.

A picture tells a thousand words.   Some of you remember “Candid Camera”, the original reality show that aired in the 1960s and came back for subsequent reruns, where people were recorded reacting to strange and often embarrassing situations.    All of you will likely remember “Punk’d”, the Ashton Kutcher-created show that began in 2003.   Both shows preyed on the unwitting participant. 

An employer-friendly decision was just issued last week by the Sixth Circuit Court of Appeals in Jaszczyszyn v. Advantage Health Physician Network, which provides reason number 1,257 for why employers can sometimes put an employee’s social media use to good use.    The decision contains a lengthy description of the factual and procedural background, which you can read here.  But the predicament of this plaintiff/employee is stated rather succinctly in the very first two sentences:

“A year-and-a-half into [Plaintiff’s] employment with [Advantage], she began taking intermittent FMLA leave related to worsening pain from a back injury sustained ten years before.  About five weeks into her leave, several of her coworkers saw pictures of her drinking at a local festival on Facebook and brought the matter up with their supervisor.”

Woops.   Smile, you’re on candid camera?   You’ve been Punk’d?  But wait…  what?  You put some of these pictures on Facebook yourself?  Fortunately for employers, dumb is not yet a protected class.   Indeed, it is hard to cry “foul” when you’ve essentially punk’d yourself.

And that’s essentially what the employer here benefitted from.  The Facebook pictures showing Plaintiff drinking at a local Polish heritage festival became a problem, not only because she was supposedly out due to a physical incapacitation, but also because her co-workers who saw the photos “felt a little betrayed or duped by [Plaintiff] because they were trying to cover for her only to see her out on Facebook partying.” 

Yet, Plaintiff sued after her employer terminated her employment for fraud, and, specifically, abuse of her FMLA leave.   She argued that the company retaliated against her and interfered with her statutory right to take a medical leave.  The first court dismissed the case before it ever got to a jury, and the appellate court now confirmed that that first decision was correct.  After reciting a lot of legal principles, the appellate court determined, among other things:

“While [Plaintiff] relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on [Plaintiff’s] own behavior at the termination interview, which she does not address at all.  She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.”

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

While you must remain vigilant in understanding the potential pitfalls of making employment-related decisions based on employee social media use, your company still can and should take full advantage of any advantage that social media brings.  You certainly do not want to surreptitiously obtain or monitor your employee’s Facebook page or other social networking activity, and you still don’t want to be “trigger happy” when making a decision. 

But when faced with potential evidence that your employee is engaging in conduct that is inconsistent with statements made to you, or with your company’s policies and practices, figure out the best way to use that evidence.   As Daniel Powter sang in 2005:

"You had a bad day

You're taking one down

You sing a sad song just to turn it around

You say you don't know

You tell me don't lie

You work at a smile and you go for a ride

You had a bad day

The camera don't lie."

Courts are issuing more decisions in the employment law context on the issue of whether an employee’s social networking activity can be discovered in a lawsuit between the two parties.   Two cases that were decided within the past few weeks offer a good illustration of the developing standards.

Howell v. The Buckeye Ranch (U.S. District Court, Southern District of Ohio)

The plaintiff/employee in Howell filed a sexual harassment lawsuit based on alleged inappropriate touching and sexual comments.   The defendant/employer filed an application with the court to compel the employee to disclose names and passwords for each social networking site she used.  The employer argued that the information was relevant to whether the alleged acts even happened, and to her current emotional state.   

While the court acknowledged that generally “information in the private section of a social media account is discoverable,” the court ruled that the employer’s request for free and unfettered access was overbroad:  “The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file.”

Mailhoit v. Home Depot (U.S. District Court, Central District of California)

The plaintiff in Mailhoit also filed an employment discrimination case, in which the defendant/employer also asked the court to order the production of certain “profiles, postings or messages” from the employee’s social networking sites.   Notably, the employer supported its request by pointing to certain testimony at the employee’s deposition.   

The court noted that social media could be discoverable if the request contains “reasonable particularity” of what is actually being requested, and seeks information that is “reasonably calculated to lead to the discovery of admissible evidence.”    While the court found that generalized requests for certain postings allegedly relating to the employee’s emotional state did not meet those exacting standards under the facts of that case, the court did allow the employer to obtain from the employee all social networking communications (messages, wall postings, etc.) between the employee “and any current of former Home Depot employees, or which in any way refer . . . to her employment at Home Depot or this lawsuit[.]”

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

The courts’ decisions in Howell and Mailhoit represent two sides of the discovery spectrum, and offer two quick takeaway points:

            Point 1.            The trend continues to favor employers who seek to discover social networking posts by and involving the employees who sue them.   Subject to Point 2….

            Point 2.            You will be more likely successful in any request to the court if you can show that the requests made are narrowly-tailored, and are supported by evidence connecting the information you seek and your particular case, rather than a generalized feeling, suspicion, or hope that the social networking site “might have” some useful smoking gun.   Thus, generalized arguments might not work if they can be applied in virtually every action, and have no connection to the particular case before the court (i.e., we want to see if plaintiff denies the acts took place, or, we want to see if plaintiff acts happy in her social media activity).   On the other hand, showing a likelihood of a contradiction with prior testimony, or with a particular claim or statement made in your lawsuit, together with a narrowly crafted request that is not simply seeking “anything and everything” on Facebook, might do the trick.      

In short, setting the foundation during deposition questioning in the right case, and then properly tailoring your requests for social networking information, will go a long way to maximizing your success rate in obtaining something that may be of use in your lawsuit defense.

Last week, a federal judge in Illinois showed us why employers may be wise to (lawfully) search for and use electronic communications involving an employee.

In Jacober v. U.S. Dep’t of Agriculture (Southern District of Illinois), the plaintiff worked as a loan specialist in the Department of Agriculture's service center.   The case is chock full of facts regarding conversations, performance discussions, and some internal complaints, and you are free to go through the entire court’s decision here if you’re interested.  

But the bottom line is that the plaintiff sued her employer alleging, among other things, that she was sexually harassed in the workplace.  The primary evidence that she relied upon:  she found out about, and later personally viewed, some photographs of her direct supervisor that were inserted into a PowerPoint presentation, and which show the supervisor wearing “overalls with no shirt underneath, a hard hat, tool belt, and shoes, with his arms crossed.”  Many of you know that one of the elements a plaintiff is required to prove for a sexual harassment claim is that the plaintiff was “subjected to unwelcome sexual conduct, advances, or requests[.] [emphasis added.]”    To determine whether conduct is “unwelcome”, a court will generally look at the entire context and circumstances, and whether the conduct is both subjectively and objectively offensive.

Plaintiff in Jacober claimed that she found the photographs to be offensive because it was her supervisor in the photographs, he was with a college student (the one who assisted with the PowerPoint slides), he was shirtless during the work day, and the images “were put on a government computer”.    But, what is perhaps the best way to counter an “unwelcome” argument?   Provide evidence that the plaintiff happened to previously welcome similar (or worse) images on her computer, and in the conversations she voluntarily had with other people.

And that’s precisely what her employer did.  In dismissing Plaintiff’s sexual harassment claim, the court referred specifically to the employer’s evidence that plaintiff responded to arguably more graphic images sent to her work e-mail address by responding “that’s too funny”, and that she affirmatively sent pictures that were clearly more graphic to others outside of her work from her computer.    The court ruled:

“While plaintiff may not have liked the pictures of [her supervisor] in overalls, or personally found it to be unprofessional, she cannot make a claim that these photographs were subjectively sexually offensive, in that her own work email account contained pictures of males wearing far less clothing, one of which contained a photograph showing the full buttocks of a male, which she found humorous and even forwarded to her own daughter.  Plaintiff’s own actions therefore, make it unbelievable to this Court that she could find the photographs to be unwelcome sexual conduct that made her work environment intolerable.  She tolerated, and, in fact, generated further distribution of images that were more revealing, and therefore could be considered much more sexual in nature than the one of [her supervisor].”

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

Repeat after me:   There are good reasons for employers to use social media and electronic communications of employees.  One of those uses is to defend your company in a lawsuit, when a current or former employee suddenly alleges that she or he was subjected to a harassing or discriminatory work environment.    Understanding the elements that must be proved for such a claim, and being able to effectively obtain and use the type of evidence that “is never truly deleted when deleted” to disprove those required legal elements against the individual suing you, will go a long way to minimizing potential risks and “exposure” to claims in the future.

It also is worth noting, however, that, despite what may not have been any malicious intent on the part of any of plaintiff’s supervisors in Jacober, it may also be wise to review your internal anti-harassment and anti-discrimination policies, and properly train your management personnel to understand that certain conduct may not be appropriate for your particular work environment, even if it does not rise to the level of unlawful conduct.    What if this employer did not have evidence of the plaintiff’s own use of revealing pictures?

Twenty-six years ago, Ferris Bueller looked straight into the camera and said:  “If you had access to a car like this, would you take it back right away?   Neither would I.”   Once the car is out of the garage, it is out.   And so it goes with social media (yes folks, the pop culture stretch du jour).   Now that everyone has a plethora of social media platforms on which to communicate anything in real time, everyone seems to be taking advantage of it.   Until the car crashes.

An interesting decision was just issued by the California Court of Appeal (Third Appellate District) in Juror Number One v. The Superior Court of Sacramento County, which shows that even trial jurors may not be immune to a judge’s ire over social media postings.   There, the plaintiff juror had allegedly violated the court’s earlier admonition by posting trial-related information on his Facebook account (including certain evidence presented at trial) while the trial was in progress.  The court conducted a hearing and ordered the juror to consent to having Facebook release all of the juror’s Facebook posts from the trial.   Of note, the posts at issue were not those made available to the public at large, but to a “select group of Facebook friends.”

The juror took another day off, this time to visit the courthouse as a plaintiff, when he sued to bar the enforcement of the court’s order.  The juror argued that the order violated the federal Stored Communications Act (“SCA”), the United States Constitution (4^th and 5^th Amendments), and state and federal rights to privacy.   The Court of Appeal, however, denied the juror’s claims.   Rejecting the juror’s SCA argument out of hand, the court noted: 

“But even assuming Juror Number One’s Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information.  Here, the compulsion is on Juror Number One, not Facebook. . . .  If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook.  The SCA has no bearing on this issue.”

Next, the court rejected the juror’s 4^th and 5^th Amendment claims, holding that the claims were speculative and “without argument or legal support.”   And, finally, with regard to the juror’s privacy claims, the court found that the need to remedy potential juror misconduct outweighed any privacy rights that might even exist:

“At any rate, protection against disclosure of personal identifying information that might be used by a convicted defendant to contact or harass a juror is not the same thing as protection of a juror’s communications, which themselves are misconduct.  But even if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute.  It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct. . . . The present matter no longer involves a claim of potential misconduct.  Misconduct has been established without question.  The only remaining issue is whether the misconduct was prejudicial.  This cannot be determined without looking at the Facebook posts.”

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

Social media may be ubiquitous, but there are limits to when and how it can be used.   New rules continue to be developed in this area almost daily, whether it involves the use of social media by jurors, lawyers, or employers and employees.  How courts (and legislatures) will continue to address monitoring of and access to electronic and social media communications bears watching.  

In other words, your company needs to stay abreast of what information it can affirmatively/strategically obtain and use in litigation against a former employee, and the extent to which the company can attempt to gain access to that information while the employee is still employed.   There are strict rules of the road involving when you can take your social media hot wheels for a spin.  So keep your eyes open.  As Ferris aptly concluded:  “Life moves pretty fast.  If you don’t stop and look around once in a while, you could miss it.”

A court decision this month from down in Fort Worth, Texas provides a great reminder for those keeping score of all of the NLRB’s Facebook firing cases.

In Sumien v. CareFlite, a few ambulance technicians and other employees of a Texas-based company posted comments on each other’s Facebook wall that responded to one’s expressed desire to slap a patient that had been transported by ambulance.   Plaintiff participated in the discussion, posting: “Yeah, like a boot to the head . . . Seriously yeah restraints or actual HELP from PD instead of the norm.”  The company’s compliance officer saw (and was offended by) the comments, and reported them to management.  

Plaintiff and another posting employee were terminated, and Plaintiff brought a lawsuit alleging three common law state claims, including a claim for “unwarranted intrusion upon seclusion”.   Interestingly, all of the claims were based on Texas common law, as opposed to statute-based claims under federal or state law.   The initial court dismissed the intrusion upon seclusion claim, and Plaintiff appealed.

The appellate court agreed with the dismissal, and ruled that Plaintiff did not state a viable claim for intrusion upon seclusion, which required a showing of: “(1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns that (2) would be highly offensive to a reasonable person.”   The appellate court rejected all of Plaintiff’s arguments, noting particularly that no one at the company engaged in any act that invaded Plaintiff’s “private affairs or concerns.”  The appellate court also quickly rejected Plaintiff’s argument that he did not realize how many “friends” of his co-worker would be able to view his wall post:

“While [Plaintiff] presented evidence showing that he misunderstood [the co-worker’s] Facebook settings, did not know who had access to [the co-worker’s] ‘wall’, and did not know how CareFlite was able to view his comment, he did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion.”

In other words, nice try.

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

Most commentaries on the “Facebook firing” issue have focused on the avalanche of opinions, guidance and decisions rolling out of the NLRB’s office as part of its application of the federal right to engage in “protected concerted activity”.   However, as the CareFlite case shows, employees may also raise state-law claims (even non-statutory, as in that case) to address adverse action taken because of social media activity.  

The decision in CareFlite was not favorable for that employee, but the particular facts and elements of the state claim in your jurisdiction may be.   So, while considering the NLRB implications we have previously discussed before making the employment-based decision, it would be wise for your company to also consider potential exposure from other non-NLRB sources.

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.

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.

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 5^th 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 30^th deadline to remain.   But wait – this past Friday the 13^th 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.

You will remember my January 4, 2012 and October 13, 2011 posts about the multiple lawsuits that have been filed in court to strike down the NLRB’s proposed notice-posting rule.  That rule requires virtually every employer (unionized or not) to conspicuously post a notice to its employees of their rights under the National Labor Relations Act (“Act”), as well as information about contacts at the NLRB and enforcement provisions under the Act.    The employers and trade associations that filed the lawsuits have argued that the NLRB exceeded its authority under the Act because it has no power to enact “general rules for the workplace”, and that the NLRB violated an employer’s First Amendment right to “refrain from speaking”.

The first court to rule on these claims has disagreed.    In part.   This past Friday, the United States District Court for the District of Columbia upheld the NLRB’s right to implement its notice-posting rule.   The court found that the Act gives the NLRB “broad rulemaking authority”, and that this enactment falls within the broad authority as a rule that “may be necessary to carry out the provisions of the Act.”   

But where the court giveth, the court taketh away too, and here is where I believe the court compromised in favor of employers, albeit slightly.   While the NLRB had the power to enact the rule, the court found that it exceeded its authority by setting forth certain consequences of an employer’s failure to comply.   Thus, the court rejected the NLRB’s attempt to treat a failure to post as an “unfair labor practice” under the Act (which brings with it fairly significant monetary and injunctive remedies), and rejected the Board’s self-provided ability to toll the statute of limitations for the period in which the employer failed to post.

There will, undoubtedly, be more to come.

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

For now, the deadline for employers to comply with the NLRB’s notice-posting rule remains April 30, 2012.  The District of Columbia’s decision is subject to further appeal, and there are decisions to be had from the other pending lawsuits.  And, as in the past, this deadline is subject to further extension based on a number of factors, such as continued pending litigation.  However, until further guidance suggests a different outcome to this tennis match, your company should be prepared to comply with the notice-posting rule in the event the April 30^th deadline truly becomes a real deadline.

How many times do you find yourself at a party ducking a smartphone camera held up to snap a picture of you, afraid of being forever linked to the latest viral YouTube sensation?   How often do you say to some camera-wielding person, “Ok, take the picture, but don’t tag me”?   We say that social media is everywhere.   Well, cameras are, perhaps, even more ubiquitous.   

A Minnesota court decision issued last week shows the emotional (even if slightly humorous) angle to the issue, but also reminds us of an important employment law takeaway.   In Olson v. LaBrie, Case Number A11-558 (Minn. Ct. of App. 2012), the plaintiff filed a petition seeking a “harassment restraining order” against his uncle for posting certain old family photos with accompanying text on Facebook.   It seems that plaintiff was particularly offended by pictures of him as a child “posing in front of a Christmas tree,” and what plaintiff perceived to be “hostile” language against him.

The court dismissed the petition, holding that the “evidence” did not rise to the level of harassment under Minnesota’s statutory scheme, but rather constituted only “innocuous family photographs.”   The appeals court agreed.

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

We can all relate to the occasional embarrassment, if not sudden outrage, of seeing our own image posted and tagged for the world to see.  Forever.  On the plate of employers these days is also the recognition that smartphones are being used by employees at the workplace and at company-sponsored events.   And there is that fine social media line again.

On the one hand, governmental agencies like the NLRB permit employees to capture certain activities at the workplace in certain circumstances.  On the other hand, your company must take great care to not violate the rights of those depicted in unauthorized pictures.   For example, the company may become aware of stalking or violence- or harassment-related behavior arising from the posting of unauthorized pictures on a social networking site.  In addition, laws exist that address photos of workers used for commercial purposes, images of children, and the use of copyrighted images.   As we have discussed in prior posts, today’s social media world requires your company to understand these realities, and address them properly in your policies and practices.

An interesting decision was just issued by a federal court in Illinois, holding that an employee is entitled to have a jury hear her claims that her employer unlawfully accessed and used her social media accounts.    Even when there does not appear to have been any malevolent motivation on the company’s part.

The decision in Maremont v. Susan Fredman Design Group, Ltd. notes that the employee worked as the Director of Marketing, Public Relations and E-Commerce for a Chicago-based interior design firm.   As part of her marketing- and social media-related responsibilities, she created and edited the company’s blog – “Designer Diaries: Tales From The Interior.”  She also became well known in the design community, including a Twitter following of about 1,250 people.   The court pointed out that her Twitter and Facebook accounts were personal accounts, and not for the benefit of the company.  However, she did use both accounts to promote the company’s work and link to the company’s web site, and did access her accounts from her office computer (and store her passwords on the company’s server).

The employee sustained serious injuries in a car accident.   During her hospitalization, she learned that the company had posted entries on her Facebook page and had posted on her Twitter account to continue promoting the company’s business.   The employee asked the company to refrain from doing so, and the company refused.   Although the employee returned to her job temporarily, she was ultimately forced to stop working because of her injuries.   She did, however, sue the company under various theories premised on the company’s access to and use of her social media accounts.

The court denied the company’s attempt to summarily dismiss the complaint in its entirety, and specifically left intact her claim under the federal Electronic Communications Privacy Act of 1986 (“ECPA”).   The ECPA provides a claim when there is, among other things, “unauthorized, intentional access to communications that are held in electronic storage.”   The court held:

 “[T]here is undisputed evidence in the record that Defendants accessed [the employee’s] personal Facebook account and accepted friend requests at least five times[.]   Moreover, evidence in the record reveals that Defendants posted seventeen Tweets to [the employee’s] personal Twitter account during the relevant time period.  As such, there are disputed issues of material fact whether Defendants exceeded their authority in obtaining access to [the employee’s] personal Twitter and Facebook accounts.”

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

Interestingly, the court did dismiss the employee’s claim for breach of her common law right to privacy, holding that Facebook and Twitter posts are generally not “private.”    Nevertheless, this case offers a good reminder that all employers must be careful about accessing an employee’s social media accounts, even when you think that you are simply continuing the assigned job functions of an employee who is unable to fulfill them (temporarily or otherwise).    And even if there is no bad intention on your part, and, in fact, no intention at all to surreptitiously monitor or access your employee’s accounts.

Stay tuned for tomorrow’s two-part end-of-the-year wrap up….

As I’ve said before, as the days and weeks go by, we will continue to update the analytical framework that you should use to determine whether adverse action taken because of social media activity violates your employees’ right to engage in “protected concerted activity.”   Now, you may be able to cross off “fucktard” from the list of social media protected phrases.

The NLRB’s Office of the General Counsel recently issued an Advice Memorandum in response to a charge filed by a terminated employee.   In early 2010, the employee had joined LinkedIn at the suggestion of his IT supervisor.   When the invitation asked the employee for his job title at the company, the employee posted: “fucktard.”   According to the charge, the employee posted that as a joke, and believed that it would be seen only by his supervisor.

The chronology of the rest of the story is important, as is the discrete nature of the Company’s various actions:

            -   In February 2011, the employee had a discussion with coworkers about how the company’s overtime policy may be unlawful.

            -   In March 2011, although none of the workers involved in the discussion complained, the company revised its overtime policy.

            -   In April 2011, the company considered starting its own LinkedIn site, and began viewing its own employees’ (public) LinkedIn posts.  The company observed the “fucktard” post for the first time, and terminated the employee who posted it, on the ground that it violated company policy prohibiting material that is “obscene, defamatory, harassing, or abusive.”

In its Advice Memorandum, the Office of the General Counsel agreed that the charge filed by the terminated employee should be dismissed.   Specifically, the Office found that there was no proof that the company took any action because of the overtime policy discussions, let alone that it knew about those discussions, and no proof that the offending LinkedIn post constituted “protected concerted activity.”

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

Context is critical.  In this case, the use of “fucktard” in violation of a general workplace policy was a proper basis to terminate the employee, although the use of that phrase in another context may have prompted an entirely different result.  For example, if the employee used the phrase during discussions about – and with some relation to – his feelings on the overtime policy (or some other concerted discussion about working conditions), the employee may have had an easier time suggesting that his termination was due to a statement that implicated protected concerted activity.

In the context of the facts here, however, the phrase was used in a context that was separate and apart from any protected concerted activity involving the overtime discussions.   Consequently, the Act’s protection was not implicated, and the company was free to enforce its policy dealing with unacceptable online content.   In proceeding with our established analytical framework for adverse action you intend to take based on your employees’ social media activity, you need to take the context of the activity into account, as much as the nature of the activity in and of itself.

Previous posts have focused on recent complaints filed by the National Labor Relations Board (“NLRB”) that allege that employers have violated the “concerted activity” rights of employees due to employment actions taken after social networking posts.   Now, it seems as if the NLRB has done an about-face (or a few of them) after its Division of Advice has issued memoranda in three separate cases dismissing charges filed by terminated and disciplined employees.   Or has it?

In In re: JT’s Porch Saloon & Eatery, Ltd., a bartender engaged in a Facebook conversation with his step-sister, in which he mentioned that he had not had a raise in years, was working without tips, and that his customers were “rednecks” who he hoped “choked on glass as they drove home drunk.”    The employee’s manager fired him because of his post, yet the NLRB dismissed a charge filed by the employee on the ground that the employee “did not engage in any concerted activity.”

In In re: Martin House, an employee of a non-profit homeless shelter engaged in a Facebook conversation with a friend that made various references (some derogatory) about the shelter’s mentally disabled clients.   A former client who was a “friend” of the employee, saw the post and contacted the employer, who immediately terminated the employee.   The employee filed a charge, which was dismissed by the NLRB on the basis that there was no “concerted activity” in that case either.

And, in In re: Wal-Mart, a customer service employee posted “Wuck Falmart!” on Facebook, among other comments that detailed a particular dispute that the employee had with his assistant manager.   The employee was called into the office by the store manager, who verbally reprimanded the employee for the post, and prepared a discipline report.   The employee filed a charge with the NLRB, which was also dismissed on the ground that there was “insufficient evidence” that the employee “engaged in concerted activity.”

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

Earlier complaints filed against employers by the NLRB itself seemed to reflect a restrictive approach to an employer’s ability to rely on social media activity for adverse employment decisions.  While the advice memoranda issued in these three cases appear facially incongruous with those prior Board actions, several standards have begun to emerge on which you may begin to rely when determining whether an employment decision based on social media activity violates that employee’s right to engage in “concerted activity”.   Thus, it is not likely considered “concerted activity” if:

1.         the employee is not posting a comment to coworkers, and coworkers do not respond to the post.

2.         the employee is not attempting to initiate group action with coworkers.

3.         the employee is not discussing the terms and conditions of the work environment generally, but is instead making general gripes about an individualized dispute that he or she had with a supervisor.

These standards still seem to be very much fact-sensitive, and, I believe, have their own inherent problems from an application and proof standpoint.   However, the more the NLRB continues to speak on this issue, the more likely it is that your company will have some guidelines upon which to rely.

Two recent developments from the National Labor Relations Board (“NLRB”) appear on their face to be nothing more than two separate findings on opposite ends of the liability spectrum.   Yet, they offer a glimpse into a reconcilable “take away” for employers on our issue of social media and employment-related decisions.

We all remember that the NLRB appeared to first take up the cause last October when it filed a complaint against a Connecticut ambulance company arising out of its Facebook-related termination and social media policy.    Then, earlier this year, the NLRB threatened to file a complaint against Thomson Reuters Corp. after the company allegedly terminated a reporter because of a tweet concerning “one way to make this the best place to work”.   Both of those cases were ultimately resolved without a hearing or decision.

Now come two new NLRB positions.    In one, the NLRB filed a complaint in New York alleging that Hispanics United of Buffalo Inc. (a not-for-profit organization) violated the “concerted activities” protection afforded by the National Labor Relations Act (“the Act”) when it laid off five employees who had posted on Facebook about another co-worker’s contention regarding the terms and conditions of their workplace.  The Company contends that the individuals were discharged for violating company policy by what it says was harassment of the co-worker mentioned in the initial post.   A hearing on the complaint is presently scheduled for June 22^nd.

In the second recent development, the NLRB’s Office of the General Counsel issued an “Advice Memorandum” in conjunction with a case involving the Arizona Daily Star.  The NLRB determined there that the employer did not violate the Act after admittedly terminating one of its reporters for writing what it deemed to be inappropriate and offensive twitter postings.   While the employer had not yet established a formal social media policy, the NLRB was nevertheless convinced that the termination did not retaliate against any protected “concerted activities”, and instead was an appropriate action taken under the company’s respectful workplace policy.

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

While the NLRB shows no signs of reducing its efforts to apply traditional claims to the new social media era, the line of demarcation for employers is starting to be visible.   For example, unlike the cases where the NLRB ultimately issued (or threatened to issue) a complaint, the Arizona Daily Star case did not appear to involve evidence that multiple employees were involved with the tweeted discussion, and no evidence that the reporter sought the involvement of others.   Similarly, there was no evidence that the reporter’s tweets related to the working conditions of the company, and instead the tweets appeared to be mere observations about certain outside activities about which he was reporting.

So while we await further guidance from the NLRB, you should at a minimum ask the following questions before making an employment-related decision:   Did the individual at issue communicate with others, or involve others in the discussion, such that the activity may be deemed “concerted”?   Did the posts involve a dialogue about working conditions or other issues relating to his or her employment or workplace, such that the activity may be deemed “protected”?

Just today, the United States Supreme Court issued a unanimous decision in the long-awaited “cat’s paw” case of Staub v. Proctor Hospital.    The decision will likely broaden the permissible theories under which a current or former employee might bring a discrimination lawsuit against a company, yet also serves as another cautionary tale even for those who use social media for employment-related decisions.

The “cat’s paw” term comes from a fable in which a monkey tricked a cat into taking chestnuts from another’s fire for the monkey’s own enjoyment.   In other words, a situation where one is influenced to do the wrongful dirty work of another.   In the context of discrimination claims, the term “cat’s paw” is, thus, used to refer to a situation where the decision maker may not have any discriminatory animus against the employee, but was so influenced by another supervisor who did have some discriminatory animus so as to infect the ultimate decision.

In Staub, the plaintiff was a member of the Army Reserve, and the record reflected that his immediate supervisor, and that supervisor’s immediate supervisor, harbored hostility toward the plaintiff’s military service.  After receiving some disciplinary warnings relating to plaintiff’s performance, the company’s Vice President of Human Resources made the decision to terminate plaintiff’s employment.   Plaintiff filed suit alleging that, even though the Vice President may not have been motivated by unlawful animus, the actions and animus of plaintiff’s supervisors influenced the Vice President’s termination decision (i.e., the “Cat’s Paw”).

After trial, a jury found in favor of the plaintiff, but the court of appeals reversed that verdict.   In today’s decision, the Supreme Court reversed that ruling on appeal, holding that unlawful discrimination can be found upon evidence that a supervisor performed an act motivated by unlawful animus that was intended by that supervisor to cause a subsequent adverse employment decision, even when the decision is made by someone else without such animus.

Employer Take Away:   What should you as an employer take away from this development?   And what does this have to do with social media?    There will undoubtedly be much more analysis of today’s Supreme Court decision in the coming days, including possible limitations of the Court’s holding, and the likely applicability of the holding to other types of discrimination claims.  

In the meantime, this case should serve to remind you that your company may no longer be completely insulated from potential liability just because a decision maker did not have any discriminatory animus against the subject of the adverse action.   Many companies continue to use social media for various employment-related decisions, and it is often the case that information obtained by the one searching the social media sites becomes known by the one making the ultimate employment decision.  Today’s Supreme Court ruling suggests that, when it comes to the decision making process, it is now more critical than ever that the decisions and decision makers are effectively sterilized from any potentially unlawful motivations developed by those who are tasked with searching social media sites and who may end up with more information than they perhaps wanted.

Love is a many splendored thing.  All you need is love.   The love you take is equal to the love you make.    Unless you are suing rocker Courtney Love for defamation.  

A lawsuit involving Courtney Love and designer Dawn Simorangkir had promised to be one of the first high-profile defamation cases based on social media posts.   The case was filed when Love went on a Twitter tirade shortly after the designer demanded payment of thousands of dollars for designed clothing, telling her more than 40,000 followers that Simorangkir is a “drug-pushing prostitute” who was said to have had a “history of assault and battery who lost custody of her own child.”   Simorangkir claimed in her lawsuit that Love’s Twitter statements destroyed her fashion career to the tune of millions of dollars.  

From a social media standpoint, the case raised a very interesting question:  Do words that may be defamatory in one context become less defamatory when uttered through a social networking site?   Simorangkir’s attorney argued that defamatory words are defamatory words, regardless of the forum in which they are spoken.   And, in fact, the argument would further be that social media provides an even greater audience to whom the allegedly defamatory statements have been published.

On the other hand, Love’s attorney argued essentially that statements posted on Twitter and other social media sites must be considered under a lesser standard, given that the average Twitter follower would understand that the context of a celebrity’s tweets tends to reflect mere jest and informal opinions, rather than intended facts about the subject.  

Love’s argument seemingly has some appeal to it, as courts addressing traditional defamation claims (i.e., not involving social media) typically do look at the context in which the alleged defamatory statements are made.  In other words, courts have looked at, among other things, whether the “broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact.”   To the extent Love can prove that the “average” twitter follower, or the average social media user in general, views these types of Twitter posts as mere harmless musings, one may conclude that social media provides greater latitude than more common media publications for purposes of potential liability.

We might have to wait a little longer for an answer to this question.   The Los Angeles trial was supposed to start on January 18, 2011, although both sides’ attorneys are in the process of negotiating a settlement.   We will continue to monitor the developments in this case, and continue to ask: “Where’s the Love?”

Employer Take Away:   What should you as an employer take away from this development?     Your employees use social media constantly, often making statements to co-workers and even third-parties.  Until the law is further developed in this area, it remains unsettled whether courts and juries will hold those making statements through social media to the same standards as those making alleged defamatory statements through more traditional means.    As employers, you should continue to be sensitive to the potential uses, and abuses, of social media by employees.   It bears repeating that you should create and maintain appropriate social media policies to reduce the likelihood of liability for the statements of your employees, and also train your employees on the appropriate use of social media.

Today is the scheduled hearing before an Administrative Law Judge at the National Labor Relations Board (“Board”) on the issue of whether American Medical Response of Connecticut Inc. violated the National Labor Relations Act (“NLRA”) by firing an employee after she criticized her boss on Facebook.    When it is ultimately issued, the decision may have a significant impact on social media and employment law.

Back on November 4, 2010, I posted about the complaint filed by the Board, which alleged that the company’s employee was unlawfully terminated for engaging in protected concerted activities with her co-workers.   You may remember that the employee went home from work and posted, among other things, how her boss was a “scumbag as usual,” and other comments about her working conditions.    Since the NLRA protects covered employees who engage in “concerted activities” for their “mutual aid or protection”, the Board alleged that the employee’s Facebook postings constituted such protected activity.

The case will be heard today, and a decision is expected to be issued shortly.

Employer Take Away:   What should you as an employer take away from this development?     Today’s hearing may be the start of a significant decision making process by the Board.   Or, it may not.    It depends on the wording of the decision that is ultimately issued, and how far reaching the Administrative Law Judge wants to be.

On the one hand, this may be viewed as merely a “normal” termination case.  Thus, regardless of the forum used to engage in concerted activity, the decision may simply find that the employee was or was not terminated due to activity protected under the NLRA.  On the other hand, the decision may serve as the first time that one of the oldest employment laws is applied to the new social media age, highlighting the point that employers should be concerned not just with what new claims social media may spawn, but with the application of social media to traditional claims as well.    In addition, the decision may contain findings regarding the propriety of the employer’s social media policy, and whether it violates the NLRA on its face by infringing on protected employee communications.

We will continue to follow this Board proceeding and post future updates.

According to the Associated Press, doctors in Europe are warning that Facebook may trigger an asthma attack in susceptible users.    According to the reports, such an attack was triggered in an 18-year old man after he logged onto Facebook and saw how many men his ex-girlfriend had “friended”.   The AP quoted a letter published in the medical journal Lancet, which described the victim as having been dumped, and then un-friended, by his girlfriend, and that the sight of seeing her linked to many new male friends “seemed to induce [shortness of breath], which happened repeatedly on the patient accessing her profile.”

Fortunately, the asthma attacks were dramatically reduced when the man consulted with a psychiatrist and “decided not to log into Facebook anymore.”

Employer Take Away:   What should you as an employer take away from this development?      Clearly, this is one of those extreme, somewhat comical, social media accounts. But it also serves as another good reminder of other general points made in our prior “social media advisor” posts.   First, whether employees are checking the profiles of their current or former dating partners, or engaging in other personal activities, on company time, it is important to find the proper (and lawful) balance of effective policies and monitoring to reduce diminishing productivity in the workplace.    Second, it also bears repeating that serious health conditions and disabilities, whether the result of, or expressed during, social networking activities should not be dismissed out of hand, but should be addressed by the company as you would if the situation did not arise out of a social media-related event.   That is true even if the end result after your due diligence is that the story is worth little more than a smile and a chuckle at your Thanksgiving table.

And the cases continue to roll in….

Last week, we blogged about a recent NLRB complaint filed against an employer who fired an employee for criticizing her boss on Facebook.    Since then, on November 8^th, an Arbitrator in Washington, D.C. issued a decision reinstating an employee who had been fired for remarks made on Twitter.   On the surface, one might conclude that this is just an example of different forum, different outcome.   However, upon closer inspection, you begin to see some semblance of a common thread.

According to this Arbitrator’s decision, Radio Free America (“RFA”) is a non-profit company that broadcasted news to certain Asian countries “where people do not have a free press.”   The claimant in this proceeding, King Man Ho, was a broadcaster at RFA, who, as part of his duties, covered a speech given by Secretary of State Clinton about Internet freedom. Ho wrote a piece regarding the speech and some of the discussions that took place afterward with Secretary Clinton, after which certain subjects of his piece apparently complained about the contents of the article and Ho’s journalistic ethics.

Ho began using his Twitter account to try to contact the complaining parties, and became increasingly agitated first about his inability to reach those parties, and then about the accusations themselves.    The decision goes through a lengthy discussion about the sequence of events that followed, including Ho’s communications with his boss over the frequency and nature of his continued tweets.   RFA ultimately terminated Ho’s employment due to what it deemed to be “just cause” insubordination for disregarding a directive to stop posting unprofessional and inappropriate tweets, and later to stop tweeting altogether about the complaints lodged against his article.

While the Arbitrator did find that RFA “shall” issue a written warning to Ho “directing him not to engage in public debates with news sources,” the Arbitrator ruled that there was no just cause for the termination and ordered that Ho be reinstated to his job with back pay, benefits and seniority. The decision suggests that it was not at all clear that Ho was insubordinate to his employer or violated any clear directive or policy of the employer, as the Arbitrator noted in the end: “RFA should address a clearer understanding of the role of [the company’s Director Communications and External Relations] and the occasions when he should become involved with criticisms or questions raised by outside news sources and listeners.”

Employer Take Away:   What should you as an employer take away from this development?   This decision should not be read simply as an example of one legal arbiter refusing to allow social media activity to prompt an employment termination.   On the contrary, there seems to be an underlying concern in the decision about the extent and nature of several of Ho’s tweets. Rather, the crux of the Arbitrator’s reasoning is what should be taken away.

Prior installments of the “Social Media Advisor” noted that courts have trended toward allowing discovery of social networking sites, albeit with the common thread that some showing must be made before free and unfettered disclosure is allowed.   Prior posts have also noted that, while a trend suggests that adverse employment action may be taken as a result of an employee’s social media use, care must be taken not to otherwise violate express prohibitions in the law (such as protected class discrimination/harassment and NLRA concerted activity protections), and that employers maintain effective corporate policies.   This arbitration decision highlights the latter point.

By ultimately refusing to find just cause for the termination, the Arbitrator here essentially determined that the company did not create and communicate a sufficiently effective directive or policy that was clearly violated by Ho’s conduct.     Therefore, it is critical to understand the need for you to create, publish and enforce clear directives and policies that address your employees’ social media use.   That way, you will not be faced with uncertainty about whether statements or conduct actually violate something in the first place when you wish to make an employment-related decision as a result of those statements or that conduct.

A “trend” is generally defined as a general course, drift or prevailing tendency.   In the battle between the potential privacy rights of a social networking site user and the desire of a lawsuit party to have full access to the private portions of that user’s profile, the trend favoring full and unfettered access has become clearer with a decision just issued by the Pennsylvania Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc.

In McMillen, the plaintiff was injured during a stock car race, and sued for damages after being rear-ended during a cooling down lap.   He alleged significant physical injuries and overall loss of general health and vitality, as well as an “inability to enjoy certain pleasures of life.” During the lawsuit, the defendants requested that plaintiff identify the name of all sites to which he belonged, and to identify his user name(s), login name(s), and passwords. Plaintiff responded by stating that he belonged to Facebook and MySpace, but he refused to give the other requested information based on confidentiality and privacy grounds.

After reviewing publicly-accessible portions of plaintiff’s sites to discover comments about a fishing trip and possible subsequent car race, the defendants filed a motion with the court to compel the production of the requested information.   The court granted that motion and ordered the plaintiff to provide all of the requested user/login names and passwords.

Recognizing broad discovery rules, the court determined that any information and documents can be discoverable by another party as long as they are relevant to the case and not otherwise privileged. The court in McMillen refused to create a new privilege for social networking sites (none has previously existed), and further found that the private portions of plaintiff’s sites could be relevant to “impeach and contradict his disability and damages claims.”   Specifically, the court noted:

“Millions of people join Facebook, MySpace, and other social network sites, and as various news accounts have attested, more than a few use those sites indiscreetly. . . . When they do and their indiscretions are pertinent to issues raised in a lawsuit in which they have been named, the search for truth should prevail to bring to light relevant information that may not otherwise have been known. Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given [the] admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted.”

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

(1)        As the trend will likely continue in favor of social media disclosure over privacy objections, you should continue to understand that nothing written or posted on blogs or other Internet sites will absolutely remain confidential and not subject to viewing by the public.   Be vigilant in your policies and practices to make sure that social media-related statements or conduct of your managers and employees do not have the potential to expose your company to liability.

(2)        You should understand that the McMillen case reflects the current sentiment toward open disclosure of social media sites generally, and not just for personal injury lawsuits. You should recognize, therefore, that social media can, and should, be a potential tool and valuable source of information in employment-related cases where an individual’s physical activities and emotional relationships are very often at issue.

The government is seeing the benefits of social media too.    Recently, the Department of Homeland Security revealed that United States immigration agents were being trained on how to use social networking sites to detect visa and other immigration fraud.   The government is also using the force of its search warrant power to explore the social media dealings of its targets.   For example, this year in the case of State v. Gurney, the defendant had surrendered to police after the apparent strangulation, decapitation and burning of his girlfriend’s body in his apartment, yet objected to police search warrants issued for his Facebook profile.  

The government is playing an increasing role in corporate operations, and one day your company may answer the door at reception to find an investigator looking to look into your little piece of heaven.   It could be the Department of Labor, or the IRS, or investigators looking into potential OSHA violations.   And no longer are the investigations constrained by what is on the written page, as we know that companies are using social media for virtually all aspects of their business.  

Online applications are being solicited and stored, employment policies and procedures are distributed and maintained on intranet portals, employee complaints are lodged on electronic forums that may or may not be sponsored by the company, and the company itself may even be discussing its business (and inadvertently violating some law) on its own blogs and web sites.   Social media is here to stay, and government investigators know that. You need to be ready for an agency audit by making sure your document files and online/social media practices are compliant.

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

(1)        What generally triggers an agency audit of your company?   Government agencies may commence an audit of your company based on a complaint by a disgruntled former or current employee.   Or, the audit may be random, based on an agency’s policy initiative to target a particular industry or type of business.   An audit may even arise based on a prior investigation or inquiry into your company.   One of the reasons it is important not to act in a manner that raises the risk of a red flag being pinned to your company’s dossier.

(2)        What hot issues are catching the eyes of investigators?    Agencies are showing up to look into your employee versus independent contractor classifications.   They are also inquiring as to whether your employees are being properly compensated for the work actually performed in areas such as pre- and post-shift activities (setting up computers and work stations, changing into and out of required clothing, performing security checks and other “closing” rituals after clocking out).  Are required meal breaks continuous and uninterrupted, or are your non-exempt employees eating a sandwich at their desk?  Have you properly identified and managed potential OSHA violations?  Investigators are also looking for compliance with record-keeping and posting requirements contained in the myriad of employment laws.

(3)        What do you do when you are the subject of a government audit?   The first step should be before you are the subject.   That is, through coordination between inside and outside counsel, you are best served to conduct an internal audit of your policies and practices to determine whether you could ultimately pass an agency checklist on today’s hot-button issues.  

            But once the investigator has already arrived, it is important to represent your company appropriately, even while you are properly and vigorously defending your position and maintaining all defenses to the scope of the investigation.   Designate one company contact person for all dealings with the investigator, and have a discussion early on to determine the source and scope of any complaint and the investigation itself.     Keep your own record of what documents and online materials are being requested, and of which employees are being questioned.   There are certain limits to what the agency can seek, and when they can seek it.    In the end, finding the proper balance between defending your company and cooperating with the investigator will often expedite the time before the investigator walks back out your door for good.

Another court has issued a decision that continues one social media trend:   Despite what the terms of conditions may say for an employee’s social networking site, and despite what the employee’s own expectations may be, the “private” postings of an employee who has affirmatively raised certain issues in a lawsuit will be fair game.

So said a Judge in the New York Supreme Court for the County of Suffolk, this time in a case entitled Romano v. Steelcase, Inc.    In that case, the plaintiff claimed that she fell off an allegedly defective desk chair while working at a university.   She later sued various entities for significant injuries, claiming that she had “consequential loss of enjoyment of life.”   The defendant served a notice on plaintiff’s attorney seeking authorization to obtain access to and copies of all of the plaintiff’s private records and information from her Facebook and MySpace accounts after having already obtained information from the public portions of her profiles that appeared to belie plaintiff’s claims that she was unable to lead an active lifestyle and engage in physical activities.

Rejecting plaintiff’s opposition on the basis of privacy rights, the court found that plaintiff had put her private activities in controversy by claiming damages for her alleged injuries in her lawsuit. Notably, the court held that refusing access to private postings “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

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

(1)        Continue to take advantage of the trend toward liberal access to and discovery of an employee’s private postings when you are involved in a lawsuit with that employee.   The Romano decision is the latest example of a court’s refusal to place privacy notions in the social media context ahead of traditional notions of a free and unfettered right to the exchange of information in civil litigation. You should, however, also be sensitive to the fact that such liberality is a two-way street, and that an employee might be able to similarly persuade a court that he or she should be entitled to gain access to and use private postings from officers or managers of your company for issues relevant to claims in a pending lawsuit.

(2)        When asking a court to allow access to an employee’s private information, make sure the request is narrowly tailored and reasonably related to the lawsuit itself.   The decision in the Romano case suggests that the Judge was persuaded that the defendant made a sufficient showing that private postings may reveal relevant information based on what was already discovered through the employee’s public profile information.     All judges might not be sympathetic to a boilerplate form request, or an overbroad request asking for the moon and the stars based on nothing more than speculation that something may exist that would help the defense.   Thus, it is wise to demonstrate an appropriate connection between the issues raised in your particular lawsuit on the one hand, and the need for access to the private information being sought on the other.

When you think about the obligation to make a “place of public accommodation” accessible to individuals with disabilities, it is likely that you primarily think about access to physical, concrete structures such as ramp access for ingress and egress, changes to restroom facilities, and access to aisles, counters or other office spaces.    However, a quickly emerging issue under the Americans With Disabilities Act (“ADA”) is whether virtual spaces such as your company’s website will now be held to the same accessibility standards.

Most of you provide information about your company to your employees through an internal web-based portal, and may even offer information, goods and services to the general consuming public through an Internet web site.   While you must ensure that your internal postings (ranging from policy announcements, summaries of benefits, and job/position opportunities) do not unintentionally create a disparate impact on disabled employees, the focus of this post is on the latter situation when the general public’s access to your website is involved.   That is, Title III of the ADA governs “places of accommodation”, and requires that such places provide equal access for disabled individuals.  

In the ever burgeoning world of social media, courts have started to consider a company’s website to be a “place of accommodation” in increasing numbers.   As a result, your company could be held liable for violating the ADA if your website does not provide equal access for the disabled.    In an attempt to help bridge the gap between current regulation of physical structures, on the one hand, and virtual spaces such as websites on the other, the United States Department of Justice (“DOJ”) has solicited the public’s comments to its notice of proposed rulemaking.   The proposed rules attempt to “establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet, specifically at sites on the World Wide Web, accessible to individuals with disabilities.”  

It is likely that the statutes and regulations prohibiting disability discrimination will ultimately be applied to acts and statements in social media.   It is not a stretch, therefore, to believe that courts will continue to apply accessibility obligations to virtual places of public accommodation. In that vein, you should not neglect to consider ADA accommodation issues in the context of your company’s website.   The public comment period for the DOJ’s notice will expire early next year, after which the DOJ will likely issue its new regulations.

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

(1)        Conduct an effective impact audit of any internal web-based portals or intranet sites that your company currently uses to post information to your employees, to ensure that the site does not disparately impact disabled employees.

(2)        Make sure that online applications and other hiring-related descriptions, information and processes meet acceptable accessibility standards, including the elimination of any language barriers and improvement of document accessibility.

(3)        Consider whether other changes should be made to your website to comport with accessibility standards, such as text aides for graphic and visual material, the ability of users to engage in keyboard navigation, rather than being required to use a mouse, and making your website compatible with software such as “screen reader” that will allow users to convert graphic and textual information into speech that a synthesized “voice” reads out through a user’s computer speakers.

The situation is not terribly uncommon.   You terminate an employee for failing to meet performance standards, and the employee sues the company for discrimination or wrongful discharge, claiming that the reason given by the company was truly a pretext for an otherwise unlawful motive.    

To bring this situation into 2010, suppose your CFO is roaming the Internet one night after your former employee’s lawsuit was filed, and discovers evidence that that employee had engaged in some form of misconduct that clearly would have resulted in his termination regardless of his poor performance.    Can you rely on that evidence as a basis for the termination of your former employee even after he is already gone and the lawsuit has started?

Depending on your jurisdiction and the facts in your particular situation, you may be able to use the “after-acquired evidence” doctrine as a defense to your former employee’s claims. The defense was first created by the United States Supreme Court in 1995 to limit or altogether preclude an employee from obtaining remedies due to a claimed unlawful termination if the employer later acquired evidence of wrongdoing that would have led to the termination of the employee anyway.

This summer, courts have continued to apply the “after-acquired evidence” defense to benefit employers.   For example, on July 16, 2010, a federal court in North Carolina applied the defense when an employer learned during discovery in a lawsuit that an employee may have violated expense reimbursement policies.   The court in Rinaldi v. CCX, Inc. ruled that the following elements must be established for the defense: (1) the employee was guilty of some misconduct about which the employer was unaware, (2) the misconduct constituted an act of dishonesty, gross neglect of the employee’s obligations, or an illegal act, and (3) the employer would have discharged the employee for cause if it had known about the misconduct.

On August 17^th, a federal court in California in the case of First v. Kia of El Cajon permitted an employer to serve subpoenas on a former employee’s former employers on the ground that “[f]ormer employment records are relevant to the after-acquired evidence defense available in Title VII employment discrimination cases.” And on that same day, a federal court in Texas in the case of Garza v. Mary Kay, Inc. allowed the employer to proceed to a jury on its defense that evidence that the employee “collected and removed confidential documents” while previously employed, but about which the employer learned after termination, could be relied upon after the fact to justify the termination.   The jury was, however, entitled to also determine the employee’s response to that defense that the employer “had never before terminated an employee for the same behavior.”

Employer Take Away:   What should you as an employer take away from this development?   We have already suggested to you in prior posts that social media can be a valuable tool when defending a lawsuit brought by a former employee.   One significant way is to look for evidence through social media that would support an otherwise legitimate reason for terminating the employee, even if that reason was not known and articulated at the time of termination.

For example, perhaps a LinkedIn profile demonstrates that the individual did not work for an entity identified on an application for employment with your company, or did not have the experience represented on your application.   Perhaps other posts by the individual boast about, or demonstrate the existence of, theft of trade secrets or competition during the prior employment with your company, or otherwise reflect that the individual violated a policy of your company while employed. Or maybe evidence found through social media can belie the reason given to you for the employee’s separation from a prior employer.

The ability to raise and rely upon the “after-acquired evidence” defense may presuppose the existence of a policy (or statement on the application itself) that clearly identifies your company’s right to terminate for the after-acquired reason.    You should also determine whether you can demonstrate to the Court that others in the past had in fact been terminated on similar grounds. Just another reason why it is important for you to maintain policies that say what you want them to say, and that are enforced effectively and consistently.

Social media offers a valuable opportunity to employers who become involved (or who may become involved) in litigation with a former employee.   A recent survey of court personnel confirms that the use of social media among judges and jurors continues to increase. So what about the parties to those lawsuits?

On August 26^th, the New Media Committee of the Conference of Court Public Information Officers released a report entitled “New Media and the Courts: The Current Status and a Look at the Future.” (www.ccpio.org/documents/newmediaproject/new-media-and-the-courts-report.pdf.)     According to the report, approximately 1,500 members of the court community (federal and state) responded to an online survey inquiring into the use of various forms of social media.   Among the interesting results are that “more than one-third of state court judges and magistrates responding to the survey use social media profile sites like Facebook[.]” In addition, 56% of judges create jury instructions during actual trials that specifically address some component of juror use of social media during the trial proceedings, and more than 97% of those responding believe that judges and court employees should be educated in proper uses and practices of social media.

While consideration must be given by jurists to applicable opinions on judicial ethics, it is clear that judges are using social media, including social networking sites and blogs, for both personal and professional reasons.   Recent news publications have also described jurors using social media during trials to “friend” or obtain information about lawyers, parties and witnesses. One should not, however, ignore the parties themselves to these lawsuits. And while social media use is not without its limitations, social media can be a valuable tool for employers who become embroiled in litigation with a former employee.

Employer Take Away:   What should every employer take away from this development? 

(1)        Restrictive covenant and trade secret lawsuits continue to be filed in state and federal court.   In those cases, it is mostly the employer suing a former employee (and, often, the former employee’s new employer) for breaching an agreement not to compete with the former employer or not to solicit the former employer’s customers or current employees.   Once an employee separates from the company, obtaining information through social media may provide valuable information about: the nature of the former employee’s current business endeavors; any solicitations in which the former employee may be engaged; posted announcements of the former employee’s current location, affiliation, or experience; inappropriate disclosure of your company’s trade secrets or proprietary information; and any potentially disparaging comments about your company.   Such information may prove valuable prior to, and even during, any lawsuit involving that employee.

(2)        Social media can also be useful in other lawsuits involving a former employee.   For example, an employer being sued for disability discrimination may find information and postings that suggest an employee may not truly suffer from the condition alleged. Or, the information derived from social media may demonstrate that a former employee’s claim of “mental pain and suffering” is in fact belied by the activities or relationships exposed by the employee’s own words or pictures.   Or, perhaps, information reveals some basis to utilize the “after-acquired evidence” doctrine to support an employment-related decision such as termination, or reveals some inappropriate motive behind the former employee’s commencement of the lawsuit in the first place.

(3)        Employers should, however, exercise caution when attempting to utilize social media in litigation involving current employees. As mentioned in prior Social Media Advisor blog posts, social media inquiries may reveal information about current employees that you did not necessarily seek to obtain, but now could contaminate any legitimate employment-related decision and lead to a claim by the current employee that a decision was based on an impermissible purpose as a result of the employer learning certain information about the employee.   In those circumstances, employers may want to limit the scope of any search, as well as create a “Chinese Wall” between those performing any search and those who have decision making or supervisory responsibilities over the particular employee.

Just last week, Mary Madden, Senior Research Specialist of the Pew Research Center in Washington, D.C., issued a very insightful report entitled “Older Adults and Social Media: Social Networking Use Among Those Ages 50 and Older Nearly Doubled Over the Past Year” (http://pewinternet.org/Reports/2010/Older-Adults-and-Social-Media.aspx).   The report offers a look into a significant trend, as well as a timely reminder for employers to make sure that age is properly addressed in their employment-related policies and decisions.

We begin with two axioms: First, the number of potential and current employees using some form of social media continues to increase dramatically.   Second, whether due to the state of our economy, or the fact that members of our society are both staying healthy and living longer, the current workforce is getting older.    Madden’s report for the Pew Research Center ties together these two assertions, with remarkable data and conclusions. For example:

·                     “Social networking use among Internet users ages 50 and older has nearly doubled – from 22% to 42% over the past year.”

·                     “Half (47%) of Internet users ages 50-64 and one in four (26%) users ages 65 and older now use social networking sites.”

·                     “One in ten (11%) online adults ages 50-64 and one in twenty (5%) online adults ages 65 and older now say they use Twitter or another service to share updates about themselves or see updates about others.”

·                     Among the implications of rising social media use by older adults is the increased use of social media for those who are looking to “embark on a new career”, and, more particularly, for those older adults looking to social media “for professional networking, continuing education, and political participation.”

Employer Take Away:   What should every employer take away from this development? No longer can the older generation of employees be ignored, or summarily dismissed as either being “technology illiterate” or too “old school” for new social media. It is, therefore, critical for employers to understand the extent to which there is an aging workforce, and that the rules pertaining to the use of social media in employment-related decisions apply equally to all employees, regardless of their age.

(1)        Employers should remember that sexual harassment is not the only form of proscribed harassment.   Harassment based on other protected statuses, such as age, may also expose a company to liability. Therefore, a company should ensure that social networking sites and other social media outlets are not being used to inappropriately harass or discriminate against older individuals on the basis of their age, with the same vigilance that most companies now take toward sexual harassment issues.   Employment policies (including electronic and social media policies) should be effectively written, and managers effectively trained, to encompass conduct that could lead to an age harassment claim by an employee.

(2)        In a similar vein, the increased use of social media by older employees necessarily puts certain personal information in the public domain, about which an employer could not otherwise inquire in a personal interview – most obviously, the age of the potential or current employee. Care should be taken to insulate decision makers involved with hiring or firing, as well as direct supervisors, from age-related information so as not to contaminate an otherwise legitimate business decision.

(3)        There is a legal irony whereby the law prohibits employers from treating employees differently because of their age, yet requires employers to treat employees differently because of their age when it comes to written release and waiver agreements entered into with departing employees.   The federal Older Workers Benefit Protection Act of 1990 (“OWBPA”) imposes very specific requirements in order to have a valid release and waiver of rights executed by an employee who is 40 years of age or older.    Among the OWBPA’s requirements are that the release and waiver must expressly refer to claims and rights under the federal Age Discrimination in Employment Act, must only be given in exchange for consideration to which the individual is not otherwise entitled, must expressly advise the individual to consult with an attorney, and must contain a set period of time for the individual to consider the agreement and to revoke the agreement even after its execution. To the extent an employer engages in a RIF or other mass layoff, it would also be wise to ensure that any age-related impacts are thoroughly considered.

Can an employer lawfully monitor personal e-mail messages sent by an employee through the employee’s personal, password-protected web-based account if such messages are sent using the employer’s computer?    Court decisions over the past few months suggest problems for employers who attempt to do so, though the decisions do suggest a recommended course of action for employers to avoid potential exposure.

To be clear:  The issue at the moment is not whether an employer can monitor communications sent or received using the company’s e-mail over the company’s computer system.   At the moment, the discussion involves personal e-mails sent through a personal (non-company) e-mail account, albeit accessed or sent on a company’s computer system. Two cases this summer found that an employee does not automatically waive all rights in all cases simply because he or she communicates using an employer’s computer. 

On July 16, 2010, the Wisconsin Supreme Court decided the case of Schill v. Wisconsin Rapids School District, and held that a public school teacher’s personal e-mails are not necessarily deemed to be government “records” under the Public Records Law merely because they may have been sent and received on computer systems owned by the government, if the messages are not related to a governmental function.   Five days later, on July 21, 2010, a California appellate court held in Mimi Shanahan v. Superior Court that a bank executive did not waive his right to privacy of a confidential document when he e-mailed it to his personal secretary. The court there noted that the executive had given the document to his one assigned secretary in confidence to print or proofread, as opposed to sharing it generally and openly with a secretary pool or the secretary of another employee.

Critical to the outcome of these cases is the precise nature of an employer’s communicated policy, and the extent to which the employee had an expectation of privacy in the e-mail being sent.   Recent decisions in New Jersey and New York highlight the importance of the employer’s particular policy. For example, on March 30, 2010, the Supreme Court of New Jersey issued a decision in Stengart v. Loving Care Agency, Inc. that also landed on the side of the employee’s privacy rights. In Stengart, the employee sent e-mail messages to an attorney over a work-issued laptop computer, though using the employee’s personal web-based and password-protected account.   The court found that the employee did not waive the attorney-client privilege under those circumstances, relying on the employer’s policy:

[T]he policy does not address the use of personal, web-based e-mail accounts accessed through company equipment. It does not address personal accounts at all. Nor does it warn employees that the contents of e-mails sent via personal accounts can be forensically retrieved and read by the company. Indeed, in acknowledging that occasional personal use of e-mail is permitted, the policy created doubt about whether those e-mails are company or private property.

One can contrast that New Jersey opinion with the 2007 decision by the New York County Supreme Court in Scott v. Beth Israel Medical Center, Inc., where a physician exchanged e-mail with an attorney over the hospital’s computer system. The court held that the employee did waiver the attorney-client privilege, finding that the confidential nature of the communications no longer existed.   In stark contrast to the policy in Stengart, the employer’s policy in Scott apparently prohibited all personal use of e-mail and at the same time expressly provided for employer monitoring.

Employer Take Away: What should every employer take away from this development?  As these recent cases suggest, the mere fact that an employee communicates through a personal e-mail account using a company-owned system does not by itself eliminate all expectation of privacy to which the employee is entitled.    Thus, employers should at a minimum:

            (1)        Make sure to understand and consider the law in the particular jurisdiction in which the employer operates its business to determine whether, and to what extent, searching or monitoring employee electronic communications may expose the employer to liability; and

            (2)        Create effective policies that account for potential social media permutations that may occur, and reduce employee privacy expectations by obtaining appropriate employee acknowledgments that expressly recognize the employer’s right to monitor and retrieve even personal web sites and messages accessed through company-owned systems.

Your employee is being paid millions of dollars each year to perform his job. Right in the middle of today’s tasks, as he is about to receive instruction from his supervisor, your employee takes out his cell phone and posts a “tweet” on his feelings about his performance to all of his friends who have signed up to follow his twitter board.    Would you have a problem with that?

At least two employers did.   News surfaced last week that Eric Mangini, head coach of the NFL’s Cleveland Browns, has threatened to fine players for tweeting about events at training camp, and particularly during team meetings. This on the heels of the well-publicized action taken last year by the NBA’s Milwaukee Bucks. In that case, Bucks forward Charlie Villanueva apparently posted a message to his Twitter feed from his cell phone when he went into the locker room at halftime of a basketball game against the Boston Celtics.    According to reports, the tweet that was posted from Villanueva’s “CV31” screen name read: “In da locker room, snuck to post my twitt. We’re playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up.”

The good news is that Villanueva apparently stepped up, scoring a team-high 19 points to help the Bucks beat the Boston Celtics that afternoon. As for the Browns, well, we’ll see. However, like many employment law issues, the concern is not for the period in which everyone is winning; rather, the key is to address a potential problem before the bad times attendant to a losing streak risk damage to the entire team.

Twitter continues to dominate the popular culture, allowing users to post microblogs from a cell phone at the pace of an instant message, and has become a popular site for celebrities in the sports and entertainment world who have a following of gaggle that hang on to the tweeter’s every move and thought.   Twitter’s growth can be attributable to the ease in posting and reading the messages, as well as the fact that such posting and reading can be done anywhere one may be standing with a cell phone.

And therein lies the problem.   The implications of an NFL or NBA star’s use of Twitter apply equally to your employees. Your company might not be a sports franchise, and your office may not consist of a locker room.   However, your company should consider the implications of social networking sites like Twitter on your workplace and your employees.

Employer Take Away – What should every employer take away from this development?    One could chalk up these stories to simply more examples of young athletes being immature.   Or, they can serve to demonstrate, by extension, the realities of today’s technology and the expanding universe of modes of communication that, while increasing our ability to connect with others around the world, increase the risks right there in the four walls of your company’s office.

                        (1)        Recognize the effect that increased social networking has on employee productivity.   Even Milwaukee Bucks’ head coach recognized the productivity dilemma, when he commented at the time that “…anything that gives the impression that we’re not serious and focused at all times is not the correct way we want to go about our business.” While employers try to keep to the old adage that a “happy employee is a productive employee,” there should be limits to acceptable forms of happiness when they come at the expense of productivity because your employee is spending countless hours posting tweets when he should be performing his or her job duties.

                        While it is clearly more difficult to monitor an employee’s use of twitter on a personal cell phone that is not synchronized with the company’s systems, you should at the very least create a policy that prohibits excessive use of personal, social networking sites while on company time.    With regard to the use of social networking sites more generally, particularly those that are used from the company’s computers, you should be mindful of the applicable laws that govern an employer’s monitoring of employee activity.   Employers can, however, limit exposure under these laws, and in fact eliminate any reasonable expectation of privacy on the part of the employee, if employees are required to sign appropriately-worded documents acknowledging and consenting to the company’s monitoring policies.

                        (2)        Be mindful of the lack of control your company has over the use of sites such as Twitter.    In the good old days, one only had to worry about the informal musings of an employee on the rapid-fire system we once knew as “e-mail”. Now, there is an increased potential for workplace harassment that comes with the even great informality of Twitter.    There is a real concern over the fact that twitter posts from a personal cell phone may not be part of the company’s systems, and thus the company may not have the same ability to control or capture and save messages in the same way it can with e-mail, or even with instant messages that are delivered through the company’s computer system. Employers must nevertheless be sure that their harassment policies address the potential issues that arise in the context of inappropriate harassment and discrimination through the use of social networking sites, and be equally vigilant when responding to a complaint arising from communications made on those sites. 

                        (3)        Prevent employees from intentionally or inadvertently disclosing confidential or proprietary information due to the informal nature of communications on sites such as Twitter.   Again, it is critical for your company to make sure it has policies in place regarding the use and disclosure of company information, and that those policies specifically address the concerns attendant to these new social networking sites. 

                        (4)        Consider restrictions.   The trend toward making it easier for employees to engage in communications quicker and from anywhere in the world, increases the possibility that such employees claim to be “working” 24/7 while engaging in those communications. For example, even if your company does not authorize a non-exempt employee to work overtime, an employee must still be paid for hours worked (although a company certainly can discipline an employee for performing unauthorized overtime).    Without the proper policies in place, and without the appropriate measures taken to ensure that the company can control and stay on top of the number of hours worked by all non-exempt employees, the potential for exposure exists under federal and state wage payment laws.

                        Many commentators – including us – have analyzed and described the potential perils to employers in conjunction with the use of social media.   The focus of many of those discussions has been centered on issues such as potential liability for discrimination, alleged violation of privacy rights, and the likelihood of unauthorized disclosure of trade secrets and other confidential or proprietary information.

                        However, on December 1, 2009, the United States Federal Trade Commission (“FTC”) revised its rules pertaining to the use of endorsements and testimonials in advertising in a manner that has a direct impact on the use of social media by businesses and their employees.    The new FTC rules highlight the need for employers to understand the need to pay attention to what their employees do and say as it may relate to the products and services offered to the general public, and to create and effectively communicate workplace policies on social media use.

                        The purpose of the FTC’s new rules is to apply the use of advertising endorsements to Section 5 of the FTC Act, which prohibits certain unfair and deceptive practices in commerce.    An “endorsement” is defined by the FTC’s rules to include:

“any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”   

                      The FTC’s rules should be considered by any company that has employees who may be blogging opinions about the company’s products or services. An employer can face potential liability for opinions offered by its employees, even if the opinions are not authorized or sponsored by the company in the first instance.   According to the FTC’s rules, any endorsements “must reflect the honest opinions, findings, beliefs, or experience of the endorser,” and “many not convey any express or implied representation that would be deceptive if made directly by the advertiser.”   Under these regulations, the company would be the “advertiser” and an employee blogger would be an “endorser.”   In fact, the rules specifically address blogging and the duty to monitor blogging when an individual (particularly those paid) are speaking about the company’s products or services:

“In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.”

                    Beyond the general considerations set forth, the FTC’s rules generally address (i) endorsements by consumers, experts, and organizations, and (ii) disclosure of relationships between the endorser and the advertiser of the product or service.    Thus, certain guidelines must be followed when one is deemed to be a consumer speaking about the performance of a product or service, as well as when one holds himself or herself out to be an “expert” in the particular field discussed, as it relates to some aspect of a product or service such as quality, price, or uniqueness.   Again, an employee discussing any aspect of the employer’s products or services may fall within the reach of the FTC’s guidelines.

                    Finally, the FTC’s rules provide that any individual who is endorsing a product or service, and who also has a “connection” with the seller of the product or service, must disclose that connection. Thus, for example, an employee who provides testimonials about her employer’s products would need to disclose the fact that she is an employee of the company.  

Employer Take Away – What should every employer take away from this development?

(1)       In light of the FTC’s rules, employers should consider and devise a strategy addressing the extent to which they may want employees to communicate with the general public over the Internet about their products and services, or the extent to which such communications are likely to occur even without knowledge or authorization, given the nature of particular employees’ roles.

(2)        It is also imperative that employers adopt an appropriate policy generally on social media use by their employees, and communicate and train employees on those policies. Such policies should include, at a minimum, the types of posts and statements that are inappropriate and unacceptable, prohibitions on certain company- and client-related disclosures, and appropriate direction for disclosing the employee’s relationship with the company. Maintaining effective policies will minimize the risk of potential liability for statements made by employees about the employer’s products and services through blogs and other forms of social media.