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

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

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

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

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

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

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

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

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.

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

Foiling the NLRB’s April 30^th Posting Deadline

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

Further Facebook Follies

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

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

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

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

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

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.

A federal court in Seattle, Washington issued a decision last week in Rebecca Peer v. F5 Networks, Inc. that offers an interesting example of the impact that social media can have on the employer-employee interactive process in the disability arena.

F5 Networks is a multinational networking appliances company that employed Peer since early 2010 as a Technical Support Coordinator.  Shortly after she started, Peer began experiencing chronic pain and depression, for which she asked (and received) a work accommodation that included a reduced work schedule.  On July 1, 2010, Peer was medically cleared to return to a 40-hour workweek.  However, later that month, she sent a message to her manager on Facebook that stated in part: 

“I start crying the instant my alarm goes off in the morning and don’t stop until I finally get to sleep at night.  All I do all day at work for the past week is dream up practical ways to kill myself that won’t require the people I love to clean up the mess. . . .”

Peer also posted a note on her own profile page that said:  “[W]ork feels like a war zone.  I have some serious PTSD.  Walked in the building and automatically started puking this morning.”

Peer met with company management, during which questions arose about how truthful she had been with her own doctor, and whether she was capable of returning to work, particularly in light of her Facebook statements concerning her suicidal thoughts.   The company advised her that she would not be allowed back to work unless and until her doctor certified that her return would not pose a direct threat to her health or safety.  

After some additional back and forth surrounding Peer’s failure to provide certain updated documentation, and a suggestion that her own doctor was questioning the company’s request for additional information, Peer’s employment was terminated.   Peer sued her employer, and the court ultimately denied both parties’ application for summary judgment on their respective positions.  As to the company’s request, the court ruled that it could not dismiss Peer’s disability discrimination and failure to accommodate claims as a matter of law, but rather a jury should decide whether the company properly ended the interactive process and Peer’s employment.

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

The Peer case involved, in the disability context, the double-edged sword that exists when an employer obtains information through social media.   In certain circumstances, an employer can assert a “direct threat” defense to liability under disability laws by affirmatively proving that the employee could not perform the essential functions of her job because she posed a direct threat to herself or to others.   In this case, F5 Networks believed that Peer’s Facebook postings revealed suicidal thoughts (thus, a direct threat to herself) that was not medically negated by her physician.

Although F5’s summary judgment motion was denied, that does not mean that the company will not ultimately prevail in this case.   But, even at this procedural juncture, the case offers a few valuable lessons to your company:

            (1)        Consider whether you want to promote or dissuade supervisors from “friending” subordinates to avoid learning information that you might not otherwise have learned.

            (2)        Understand that, once you do learn certain information through social media, such as employee statements about health conditions or indications that an accommodation is needed, you must still act on that information and address it as seriously as if the statements were given to the company in person or in a written letter.

            (3)        Your company’s front line supervisors and managers should be trained on the appropriate actions to be taken once information is obtained that may trigger your company’s duty to engage in an interactive process with one of your employees.