If an employee came to you and said that he can’t comply with your company’s dress code because he belonged to the Church of Body Modification, what would you say?   You may need to rethink that.

I don’t watch ABC’s “The View”.   Not that there’s anything wrong with it. Though, an episode a couple of weeks ago prompted a thought about the role that social networking sites could have on religious expression in the workplace.   On September 16^th, the hosts of The View discussed how a North Carolina High School student was suspended because she wore a nose ring. The student alleged the school’s dress code violated her freedom of religion because she wore the nose ring as part of her faith in the Church of Body Modification. The hosts noted that that Church had approximately 3500 members, and may have been federally recognized as a tax-exempt religious entity.

Doing a little research, I found that this was not the first time such a claim was made by a Church member.   According to news reports, Costco apparently fired a woman back in 2001 after she refused to remove an eyebrow ring.   The employee sued for religious discrimination, claiming that she was a member of the Church of Body Modification, a religion that she said dated back to 1999.

Social media arguably makes it easier for employees to claim that they are members of a religion.   Indeed, one of the primary benefits of social networking sites and blogs is the ability of individuals to assemble and participate in large groups holding common interests and expression.   It could be for recreational, educational, political, or cultural reasons, and can be for religious purposes as well.    But how far can they go?   Do you need to recognize as a “religion” a group of employees claiming to belong to the “Church of Face Painting,” where employees believe that their favorite football teams will receive divine intervention on Sundays only if they paint their team’s colors on their faces every Friday in the office?   Or, the “Church of Hendrixology”, where Jimi Hendrix music must be played while the employee performs any form of physical labor?

Title VII of the federal Civil Rights Act obligates an employer to offer a reasonable accommodation when faced with a conflict between an employee’s sincerely-held religious belief, and a policy or condition of employment maintained by the employer, unless doing so would create an undue hardship for the company. The statute defines “religion” as including “all aspects of religious observances and practice, as well as belief[.]”   Inherent in that, however, is the requirement that the employee have a bona fide religious practice or belief. Courts have addressed this notion of what constitutes a religion in many different contexts, and the IRS even has guidelines to determine religious status for tax exemption purposes.

The line between church and state, and between religious observance and workplace rules, is getting increasingly more blurry.     Social media is arguably making it easier for employees, and other groups of individuals, to express religious views and engage in common, organized religious observances.   Employers need to understand their obligations without dismissing religion-based claims simply because they may not fall within the traditionally-held notions of what a “religion” may be.

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

(1)        Extreme and frivolous claims will not generally lead to employer obligations in the area of required religious accommodation.    However, in the event you learn through social media or otherwise that an employee or group of employees claims that a religious belief or practice must be accommodated, you should not merely ignore that claim because it seems silly, trivial or self-serving at first blush.   You should effectively treat religious accommodation cases much like you would disability accommodation cases, and do at least a minimal analysis based on applicable legal definitions and requirements to determine whether there is sufficient indicia of a sincerely-held religious belief or practice.

(2)        You should determine whether there is, in fact, a true conflict between the employee’s religious belief or practice and the policy or conduct rule being violated.

(3)        You should engage in a form of interactive process to determine whether there is an accommodation that can be provided that alleviates the conflict, while not posing an undue hardship for your company.   While wanting to avoid any precedent-setting accommodation, you may be able to avoid unwanted lawsuits and negative publicity by making simple changes to accommodate one’s religious beliefs.

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.

As we all know, social media has made it easier for employers to search for and obtain information about employees.    And, sometimes, employees put the information right in your lap. 

Craigslist recently announced that it was shutting down its “adult services” section. Many objected to what was perceived to be a form of censorship, including a blogger named Melissa Petro who posted her own “thoughts from a former Craigslist sex worker” on the Huffington Post, in which she wrote: “From October 2006 to January 2007 I accepted money in exchange for sexual services I provided to men I met online in which was then called the ‘erotic services’ section of Craigslist.org.”   Such an admission from a participant on Craigslist wouldn’t be all that surprising, I suppose, except for the fact that Ms. Petro is currently an elementary school teacher in the Bronx, New York.  

The news media and parents of school-aged children have grabbed hold of this story and it has exploded.   The issue does not appear to be about whether prostitution is wrong, but whether Ms. Petro should be able to continue in her position as an elementary school teacher.    According to Ms. Petro’s post, she no longer engages in such “activities”.   So there are some who have argued that her prior “activities” have no bearing on her ability to perform her job as a school teacher, while others argue that a former prostitute is not someone who should be teaching children.   Ms. Petro has been placed on administrative duty by her employer.

There are so many sexy issues here.   The school apparently did not seek out this prior background information about Ms. Petro; rather, she openly posted her background for the world to see.    In addition, Ms. Petro’s posts arguably brought her current employment situation into the discussion when she expressed her hope to “never again make the choice to trade sex for cash even as I risk my current job and social standing to speak out for an individual’s right to do so,” and when she apparently spoke out later on a video and compared her teaching career to having sex with her boyfriend.

Which prompted the question of whether an employer is limited in taking adverse action against an employee because of prior criminal offenses that are discovered through social media?   The answer is generally, of course, “it depends.”   Many states have statutes which preclude an employee from inquiring about or taking any action with regard to prior convictions (prior arrests are typically a forbidden topic completely). New York is one of those states.   

By way of example, New York’s Correction Law provides that no application for employment can be denied, and no current employment can be acted upon adversely, because the individual was previously convicted of one or more crimes unless (1) you can demonstrate a “direct relationship” between the specific employment position sought or held and the prior criminal offense, or (2) the acceptance of or continuation of employment would pose an unreasonable risk to property or to the public’s welfare or safety.    New York law also provides 8 specific factors that must be considered when making such an employment-related determination, and requires, among other things, that any individual previously convicted of a criminal offense be provided, upon request, a written statement setting for the reason for any denial of employment.

Employer Take Away:   What should you as an employer take away from this development?    Notwithstanding the salacious facts presented in Ms. Petro’s case, and the sympathy she has perhaps garnered with those who applaud her for being open and honest, this case offers a good lesson to you:

(1)        As suggested in prior posts, strongly consider the extent to which you truly want to (and need to) obtain information about potential and current employees from social networking sites and other forms of social media.   If you decide you do, take appropriate steps to insulate the unwanted information from the decision makers.

(2)        To the extent you obtain information about an applicant or current employee, such as prior criminal convictions, make sure that you consider the legal requirements in your state for basing employment-related decisions on that information.

(3)        Don’t forget that social media can be wrong.    While much of Ms. Petro’s circumstances appears to have come directly from her own keyboard and mouth, it is important to confirm the source of your information, and limit discussions about the information to those within your company who need to know.

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.

When you think about the “sexy” kinds of employment-related claims, you tend to think first about discrimination, harassment, and perhaps even trade secret disclosure cases.   You don’t typically think about workers’ compensation claims.    But even workers’ comp cases can have a significant impact on your company’s bottom line, and it might be worth considering how social media can provide value to your response to workers’ comp claims.

We have previously posted thoughts on the various ways in which social networking sites, blogs, and other forms of social media can serve a useful role in litigation generally.   A new article to be published in the Pace University Law Review provides an illustrative discussion on the influence that social media has, and will likely continue to have, specifically in the workers’ compensation scheme.   Authored jointly by Jacyln S. Millner, Esq. and Professor Gregory M. Duhl, this article succinctly identifies the “crossroads” of social networking and workers’ compensation law through an analysis of social media’s impact on four components of the workers’ compensation process: discovery, attorney professional responsibility, privacy, and evidentiary rules. 

The point made is, again, not that workers’ compensation law and procedure have itself changed in this new social media world, but that social media has transformed the way in which traditional workers’ comp claims will proceed.   As if workers’ comp claims are the experimental guinea pigs, the authors conclude that “workers’ compensation is an ideal area of law for lawyers and judges to experiment with how to address some of the unique challenges and opportunities that social networking poses in litigation.”

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

(1)        Continue to recognize the value that social media can provide in the defense of all litigation claims, even the less “sexy” claims such as workers’ compensation.

(2)        Once information is obtained about an employee claimant, take care in determining strategically how best to use the information in your litigation, and how best to educate and persuade your judge, arbitrator, or administrative law judge that the social media source of your information is both reliable and relevant.

It is, by now, axiomatic that our new social media world has increased the risk of disclosure (intended or inadvertent) of information and documents that are not meant for public consumption.  As an employer, you must understand these risks and take pro-active measures to protect the private and confidential information of your company, your clients, and your employees. And you must act swiftly when you determine that a breach has occurred.

According to a CNN report this week, Google did just that, announcing that it had fired one of its employees for violating privacy policies by accessing user accounts.   CNN reported that the employee “used his position as a key engineer evaluating the health of Google’s services to break into the Gmail and Google Voice accounts of several children.”    The conclusion reached there: “The incident highlights how easy it can be for anyone with access to confidential information stored online to abuse it, regardless of any systems that are in place.”  

Some, many, or all of your employees have access to certain private and confidential information, and those employees are blogging, tweeting, and otherwise actively engaging in social networking sites.   What types of potentially harmful disclosures are we talking about?    For one, the potential disclosure of your own company trade secrets or confidential information. An employee may be violating a contractual commitment or duty of loyalty by disclosing certain information through social media, but perhaps more importantly, that disclosure to competitors or the general public will cause irreparable harm to your business.    You can’t un-ring that bell.

There is also the potential disclosure of trade secrets belonging to your clients or customers.   The disclosure of sensitive information with which you have been entrusted could lead to a damaged business relationship, and a possible lawsuit against your company for failing to adequately maintain privacy controls.   In a similar vein, is the potential disclosure of your employees’ information, such as medical-related information and an employee’s social security number or other banking or financial-related information.

The Google firing highlights the cataclysmic result that could come when the ease of employee access to social media collides with the ease of employee access to private and confidential information.

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

(1)        It is not enough to maintain and communicate policies dealing with the unauthorized access to and disclosure of confidential information. It is critical that your policies refer expressly to social media and, specifically, bans on inappropriate disclosure of information and documents through the various forms of social media.    Moreover, your policies should not only apply when the employee has departed from the company, but also while he or she is employed and has access to the information.

(2)        You should consider establishing a “trade secret program” that will allow the company to defend against a position taken prior to or during a lawsuit that the disclosed information does not rise to the level of a trade secret because the company did not treat it as such. The manner in which certain information must be treated and accessed internally (as distinguished from other non-sensitive information), an identification of those employees who may have access to that information, and what monitoring controls are in place to avoid unauthorized disclosure, are among the components of an effective program. 

(3)        You should consider the current state of the law as it relates to employer obligations to properly maintain certain types of information.   For example, certain obligations to segregate medical and benefits information from the contents of a “normal” personnel file, and the requirements enacted legislatively in states such as New York for the use and disposal of documents containing personal information such as employee social security numbers.

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.