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.

Well, your company is certainly not intending for it to be a sexual holiday party.   But, truth be told, it wouldn’t be the first story of an off-site end-of-the-year holiday shindig (with complimentary alcohol) that got a bit out of control, and, more importantly, offensive to someone.   Now, I’m not trying to be Ebenezer Scrooge, and don’t mean to skip right over Thanksgiving, but in keeping with this week’s apparent blog theme of cameras and booze, I thought I’d offer another cautionary tale for those planning the next employee appreciation party for the upcoming December holidays.

What prompted this public service reminder?  A federal court decision issued this month from upstate New York in the case of Shiner v. SUNY at Buffalo, et al. (11-CV-01024).   Plaintiff was a clerk in the instrument management services department at the University of Buffalo Dental School.   Like many of you, the school holds an annual department Christmas party for its staff.  December 21, 2010 was the date for their annual soiree, held at a local bar.  

Plaintiff had been slightly uncomfortable with the behavior at prior holiday parties (and had previously raised her concerns with school officials), but decided to attend this one anyway, and was seated near two supervisors who spent the night allegedly making “inappropriate and sexually explicit remarks, comments and gestures.”  Things took an apparent turn for the worse, as Plaintiff alleges that one of the supervisors “grabbed her breasts, chased her around a table, inserted his tongue in her ear, and forcefully pinched her ribs when she refused to submit to his requests.”

Post-party complaints were made to the school’s internal employee relations office, and various employment actions were eventually taken by the school as a result.   Plaintiff later sued, alleging sexual harassment based on a hostile environment theory, and the school sought to dismiss the case immediately.   The school argued that no discovery was necessary, and relied on the legal “Faragher/Ellerth defense”, which absolves an employer of liability in certain cases if: “(1) the employer exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.”

The court denied the school’s application for dismissal at this early stage, ruling that there were factual issues that had to be resolved for the school’s defense, such as whether plaintiff had sufficiently complained earlier about prior holiday parties, and whether the school waited too long before taking corrective action as a result of the incidents at the most recent December 2010 party.  Both sides will be gearing up for a protracted litigation.

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

Procedurally, the Shiner case is in its infant stage, and no determination on the actual merits of the claims or defenses has been made yet.   In fact, this case did not even depend on social media use by anyone.   So, what’s my point?   A couple:

1.         You should know by now that workplace boundaries have expanded beyond the traditional four walls of your office, and social media has gone even further in expanding those boundaries.   Make sure that your workplace policies (including harassment, discrimination, and violence in the workplace) expressly apply to work events occurring on and off your company’s premises.   The holiday party here may have been out at a local bar, but, as the court noted, it was still an “employer-funded party”.

2.         You should keep in mind that there may be an after party on social media.   Facebook, Twitter, Instagram, all have the potential for keeping the post-party communications – and rather unflattering pictures – going long after last call.    For that reason, you need to be aware of all concerns raised by your employees (through whatever form or forum those concerns are raised) about inappropriate conduct that may be taking place anywhere by another one of your employees.  

And make sure that your social media policies refer back to those same policies governing harassment, discrimination and violence in the workplace.  Most critically, make sure you’ve sufficiently communicated and trained your employees – particularly your supervisors and managers – about these principles, and how quickly a generous corporate gesture and nice evening can turn into significant corporate and personal liability.

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.”

One of the biggest employer pitfalls that I regularly discuss is the failure to pay for all hours worked by an employee when (1) the employee is performing work after hours and off premises using social media, or some smartphone device, and (2) the employer doesn’t necessarily know about that work because it is being performed after hour and off premises.   This age of technology has, in many cases, created the 24/7 work day and the virtual “office” that is no longer constrained by the walls and ceilings of your company’s office building.

Take, for example, the supervisor who sends work-related e-mails to one of her subordinate employees, and then that employee looks at and responds to the e-mails from his stadium seat at halftime of a Dallas Cowboys football game on a Sunday afternoon.   Is that “work” that must be recorded and compensated?  

There are two principles at play here.  First, the federal Fair Labor Standards Act requires that covered employees must be compensated for all work performed.  Second, however, is the “de minimus” doctrine, which generally allows employers to ignore (i.e., not compensate for) otherwise compensable work of a few seconds or minutes beyond the employee’s scheduled working hours.    A very interesting decision was issued last week by a federal court in Florida that addressed the interplay between these long-standing principles and an employee’s rather common use of technology.

In Lewis v. The Keiser School (Southern District of Florida), plaintiff was a non-exempt employee at defendant’s South Florida campus for more than three years.   She was paid a bi-weekly salary for a 40-hour workweek, and claimed in her lawsuit (among other things) that she was not compensated for sending lunchtime and after-hours e-mails.   Relying on the di minimus doctrine, the court rejected that claim: 

“Here, as even Lewis concedes, the emails were not lengthy and could not have taken more than a few minutes to draft and send.  Yet, she insists that the emails are evidence she must have been doing more substantial work during her lunch breaks too.  This argument is speculative and unsupported.  Lewis offers no evidence of any other substantive work that she performed while off the clock.  The time Lewis spent sending emails at lunch is de minimus as a matter of law”

The court made a point to note that the employee “clocked herself in and out and accounted for her own time”, and that she did not present any evidence that the company “forced her to clock out and continue working through lunch.”   Thus, the court found that “it makes no sense to say that [the company] should have paid Lewis for drafting and sending emails at times that she herself indicated she was clocked out or taking lunch.

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

The problem arises when the time spent dealing with emails, or otherwise performing work outside the normal work day, is not truly de minimus, or, more importantly, when your company does not know whether or not it is de minimus.   A few thoughts for consumption:

            1.         Make sure your policies (and practices) regarding working time, overtime, and the recording of hours worked are effective, accurate, and updated to reflect today’s realities and the realities of your employees’ positions.

            2.         Develop a strategy and policy regarding the common practice of “working through lunch”.   No one wants to be George Orwellian to an extreme in the workplace, yet well-intentioned practices can come back to haunt you if the waiver of a lunch break is prohibited in your jurisdiction, or if your employee comes back years later and argues that he was really working through lunch and was not compensated.

            3.         As I’ve said before, give some thought to whether it makes sense to limit the number of employees (and positions) who have company-issued smartphones or who can have access to your company’s e-mails and systems from outside of the office.   Perhaps there is a benefit to giving such devices and access only to those truly exempt employees, for whom you have fewer recordkeeping obligations when it comes to hours worked.

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.