speakers: patrick h. flanagan (704) 940-3419 [email protected] norwood p. blanchard (910)...
TRANSCRIPT
SPEAKERS:
Patrick H. Flanagan(704) [email protected]
Norwood P. Blanchard(910) [email protected]
Ryan D. Bolick(704) [email protected]
SPEAKERS:
Patricia L. Holland(919) [email protected]
M. Robin Davis(919) [email protected]
Ann H. Smith(919) [email protected]
Blogging, Facebook, T[sex]ting and
Twitter in the Work Place
What Has Been the Positive Impact of Technology on the Workplace?
Instant transmittal of information Rapid business transaction Improved work flow Increased practicality of the multi-office
workplace Increased practically, desirability and usage of
alternative working arrangements
What Has Been the Negative Impact of Technology on the
Workplace? Blogs have been used to criticize and
disparage employers. Confidential or embarrassing information can
be “leaked.” Social Networks are prime locales for sexual
harassment. Internet use can reduce the productivity of the
employees if left unmonitored.
Social Networking Sites: All the Rage
Two-thirds of the world’s internet population visit social networking or sites
Facebook has more than 400 million users Use of Twitter has soared more than 1,200
percent In February 2009, time spent on social
networks surpassed email for the first time (Source: Teddy Wayne, “Social Networks Eclipse E-Mail,” The New York Times, May 18, 2009)
Some Interesting Statistics
25% have shared personal information MySpace currently has over 200 million
registered users. Facebook has over 300 million active users. Largest growth not by teenagers but by 25 to
54-year-olds
Social Networking Sites:All the Rage
Social Networking Sites: All the Rage
Social Networking Sites: All the Rage
What’s all the ‘Twitter’ at Work?
22% of employees visit SNS 5 or more times per week; 23% visit 1-4 times per week
53% of employees say their SNS are none of their employer’s business
61% of employees say that even if employers are monitoring their social networking profiles or activities, they won’t change what they’re doing online
74% of employees say it’s a way to damage a company’s reputation on social media
Source: 2009 Deloitte Ethics Workplace Survey
The Variety of Electronic Forums Increases the Importance of Employer Vigilance
E-mail Blogging YouTube Host sites Social Networking Sites
Is this the Image You Want for Your Employer?
What about this?
It’s Amazing What Folks Put on the Internet for Everyone to See
It’s Amazing What Folks Put on
the Internet for Everyone to See
It’s Amazing What Folks Put on the Internet for Everyone
to See
WHAT??
Can you discipline or terminate an employee for what they say or do on the Internet?
Can you base a hiring decision on content about the candidate on the Internet?
Do employees have an expectation of privacy regarding employer email and computers?
What are the risks of defamation claims from electronic employee postings?
What are the risks of sexual harassment claims arising from internet use and what defenses are available?
How does electronic communication effect e-discovery when claims or lawsuits are brought?
Employment Issues Raised by the Internet
HIRING DECISIONS
Would You Hire Him as an Employee?
Would You Still Hire Him as an Employee?
What about this candidate?
How About Her?
Common Risks of Internet Searches
Problem:A search may identify an applicant’s protected characteristics such as medical information prohibited under the ADA, race, age, sexual orientation or marital status Solution:
Have a non-decision maker conduct the search and filter out protected information
Problem:Internet information may be inaccurate or misleading. Solution:
Carefully vet not only the candidate but the source of information. Try to confirm information obtained from the web.
Common Risks of Internet Searches
Problem:You learn about an applicant’s bankruptcy. Solution
Do not use information regarding prior bankruptcies.
Common Risks of Internet Searches
Problem:You learn about an applicant’s arrest history. Solution
Do not use information regarding arrests.
Common Risks of Internet Searches
Problem:You learn about an applicant’s conviction. Solution
Use a background check that complies with the Fair Credit Reporting Act and state law.
Common Risks of Internet Searches
Problem:You learn about an applicant’s workers’ compensation claim information. Solution
Do not use information regarding prior workers’ compensation claims.
*Many states prohibit “retaliation” against current employees or applicants on the basis of a current or prior workers’ compensation claim.
Common Risks of Internet Searches
Legal, Off-Duty Conduct
§ 95‑28.2. Discrimination against persons for lawful use of lawful products during nonworking hours prohibited
Can an Employer Legally Decide not to Hire a Candidate Based on a Review of Social Networking Sites?
Yes, but beware.
Tips If you are going to use SNS for hiring
decisions:
(i) do so consistently
(ii) rely on objective criteria (preferably from a job description)
(iii) make sure to comply with all third-party terms of use agreements
(iv) make sure candidates are notified in writing of the scope of the company’s screening practices
www.jobvent.comwww.hateboss.comwww.workrant.comwww.fthisjob.comwww.rantasaurus-rex.com
And, remember, candidates may be using SNS to investigate you:
EXISTING LAWS
Current Federal Law
Wiretap Act Prohibits “interception” of electronic
communications Ordinary course of business exception One party consent
Electronic Communications Privacy Act Prohibits interception of electronic
communication
Stored Communications Act Prohibits unauthorized intrusions of stored
electronic information Provider exception with
notice to users National Labor Relations Act: Protected
Speech Affords employees (even those who are
not unionized) the right to engage in “concerted activity”
Current Federal Law
Fourth Amendment Prohibits unreasonable searches and
seizures First Amendment
retaliation for speaking matters of public concern
Current Federal Law
The Developing Case Law
In Van Alstyne v. Elec. Scriptorium Ltd., 560 F.3d 199 (4th Cir. 2009), the company president accessed the Plaintiff’s personal AOL email account for more than a year after her termination
At the time, the company was pursuing several business torts against the Plaintiff
The Plaintiff filed suit, alleging a violation of the federal Stored Communications Act
The Fourth Circuit Court of Appeals held she could recover punitive damages and attorneys’ fees, even in the absence of actual damages
The Developing Case Law
In Pietrylo v. Hillstone Rest. Group d/b/a Houston’s (D.N.J., No. 06-5754, jury verdict 6/16/09) two New Jersey waiters were fired after their managers took offense to comments they posted on a password protected MySpace Account
A third employee claimed she was coerced to give the managers the password
The federal Stored Communications Act makes it unlawful to intentionally access stored electronic communications without authorization
The jury awarded $17,003 in damages Defendant also liable for Plaintiff’s attorneys’ fees
The Developing Case Law
In Konop v. Hawaiian Airlines Inc., 302 F.3d 868 (9th
Cir. 2002), the employee created a website in which he
posted various bulletins critical of his employer, its
officers and the incumbent union. Through usernames
and passwords, he enabled other employees, but not
supervisors to have access to the site. A vice president
discovered the website and obtained permission from an
employee to log on. The president of the company
threatened to sue the employee for defamation based
on statements contained in the website.
The employee sued the employer alleging, among
other things, violations of the Railway Labor Act.
The court held that the objectionable statements,
which included calling for other pilots to consider
another union, did make the website a protected
concerted activity.
The Developing Case Law
The Developing Case Law In Stengart v. Loving Care Agency, Inc., 2009 N.J. Super.
LEXIS 143 (June 26, 2009), email letters were sent by the Plaintiff to her attorney using the company computer, but from her personal email account
After the Plaintiff filed suit, the Defendant obtained a forensic image of the hard drive from her computer and found the letters
The Defendant had clear policies that permitted it to do so The court nonetheless held the attorney-client privilege
substantially outweighed the Defendant’s argument the emails were company property because they were sent from a company laptop
The Developing Case Law
In Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441 (D. Conn. 2009), a school principal sued the Superintendent of Schools claiming the Superintendant had engaged in an improper search of her emails in violation of the Fourth Amendment as well as other claims under State and Federal Law
The principal had some concerns about how the Superintendent was administering special educational programs; as the dispute appeared to escalate, the principal took an extended medical leave, and she was temporarily replaced
While she was on leave, the Superintendent accessed her e-mail account and found attached a letter she had prepared to her attorney outlining her concerns about how the District was handling special education programs; this e-mail was forwarded and opened by the Superintendent
The Developing Case Law (Wolfe cont’d)
The school district had a policy which granted a “limited expectation of privacy” to the contents of employees’ personal files on the system; the district’s policies also referred to monitoring the system to determine if “disciplinary or legal violations occurred.”
The district’s policies also provided for “[r]outine maintenance and monitoring of the system may lead to discovery that the user has or is violating” the district’s rules
The court concluded the principal had a reasonable expectation of privacy in the emails because, among other things, the district did not “routinely monitor” the e-mail accounts of employees, and the policy provided that employees have a limited expectation of privacy
The Developing Case Law
In Quon v. Arch Wireless Operating Co. Inc., 554 F.3d 769 (9th Cir. 2008) cert. granted (Dec. 14, 2009), police officers sued a wireless provider who provided texting services, when the wireless provider gave the employer transcripts of their text massages.
The text messages were sent via department issued equipment, and the employer had a policy requiring the City’s equipment to be used only for business purposes. The policy also stated the use of City computers would be monitored and use was restricted to business purposes.
Nevertheless, the department had never previously monitored the officers’ text messages prior to conducting this audit. Thus, even if the City had an applicable “business use” policy, as to the officers and the use of this equipment, it was largely unenforced.
The Developing Case Law (Quon cont’d)
The department instead adopted a practice of requiring each officer to pay a portion of the bill, over a set amount, without performing any audit as to whether the use of these devices was strictly for business
Despite the language of the policy covering City issued equipment and specifically stating “the user should have no expectation of privacy or confidentiality when using these resources;” the court ruled the practice of not previously auditing the messages created an impression text communications were private
The court also ruled the scope of the search was unreasonable, because less intrusive alternatives were available
This case is now on appeal to the U.S. Supreme Court
What can employers do?
Employers have the right to monitor how their employees use their computer networks. Employers should ensure monitoring is based
on legitimate needs and limited in scope to achieve those needs.
Does the employee have a reasonable expectation of privacy and what has the employer done to limit that expectation?
Give your employees notice of monitoring
ELECTRONIC COMMUNICATION/
TECHNOLOGY POLICIES
Many Employers are Still Behind the Policy Curve
45% of employers do not have a social media policy
28% are working on developing one 27% have a policy in place
Source: The Buck Consultants/ IABC 2009 Employee Engagement Survey
So How Are Employers DealingWith These Risks?
Visiting SNS During Work Hours:
Prohibited completely 54% Permitted for business purposes only 19% Permitted for limited personal use 16% Permitted for any type of personal use 10%Don't know/no answer 1%
100%
The Basics of a Policy
Business use only/limited personal use Information created by or stored on the Company’s systems is the
Company’s property Company reserves the right to monitor the use of electronic resources Remind employees that it expects employees to comport themselves
professionally both on and off duty Remind employees of the company’s harassment and discrimination
policy The storing of electronic information on portable devices without prior
approval is prohibited Forwarding of Company information to personal e-mail accounts is
prohibited No one may access, or attempt to obtain access to, another’s
electronic communications without appropriate authorization
Other Elements of Policy The Company’s systems may not be used for any illegal activity,
including downloading or distributing pirated software or data The Company’s policies governing the use of company logos, and
other branding and identity apply to electronic communications The Company reserves the right to take disciplinary action if the
employee’s electronic communications violate company policy Employees must abide by non-disclosure and confidentiality
agreements/policies Employees prohibited from making defamatory or discriminatory
comments when discussing the employer, superiors, co-workers and/or competitors
Employees must comply with all other company policies with respect to their electronic communications (rules against conduct may result in harassment)
Employees bear full responsibility for the material they post on personal blogs, social networks, Web sites, etc.
What about texting?
N.C. Gen. Stat. § 20-137.4A makes it illegal to text while driving.
Publish Your Policies
Employee Handbooks Policy Manuals (as a stand alone policy) Paycheck reminders Annual or more frequent e-mail reminders Post on Bulletin Boards
PRIVACY CONCERNS
What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites? In Fischer v. Mt. Olive Lutheran Church, 207 F. Supp 2d.
914 (W.D. Wis. 2002), co-workers overheard a children’s pastor discussing lewd acts over the church telephone. The head pastor hired a technology expert to examine the church’s computer and access a personal email account. The children’s pastor was terminated and sued the church for violating his
The court found issues of material fact as to whether: (1) accessing the employee’s personal account would
be highly offensive to a reasonable person; and (2) whether an employee’s email account is a
place a reasonable person would consider private.
What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites? In Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863
(D. Or. Sept. 15 2004), the court held an employee had no reasonable expectation of privacy in the internet websites he accessed while using his work computer. The plaintiff was fired for excessive internet use and storing sexually inappropriate emails, from his web account, on the company network. The plaintiff sued, claiming the company invaded his privacy by monitoring the internet sites he visited.
The court rejected the plaintiff’s claim, distinguishing the facts in the Fischer case: The church accessed the contents of emails on the plaintiff’s personal email account by guessing at his password, but in this case, the company accessed the record of the addresses of the web pages the employee had visited.
What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites? Neither Fischer nor Thygeson resolved the issue of whether
there is a reasonable expectation of privacy in content contained on third-party servers accessed through an employer’s computers. Arguably, an employer will be less likely to be found to have invaded an employee’s privacy if the employer: monitors only its own networks; does not monitor website content; has an electronic communications policy in place which
provides the employer may access emails at any time, and there is no expectation of privacy in such communications; and
requires employee acknowledgement of the policy.
Employee Privacy vs. Employer Monitoring How far can employers go in monitoring employees’ electronic
communications? It depends.
Private sector employees have no inherent constitutional
right to privacy.
However, employer conduct is limited by common law
principles and federal and state privacy laws.
The Fourth Amendment of the U.S. Constitution prohibits
unreasonable searches and seizures by the government.
This protection does not apply to private sector employees.
However, the right to privacy has been expanded to protect
individuals from unreasonable searches by private parties,
which can form the basis for other types of claims.
Employee Privacy vs. Employer Monitoring In Smyth v. Pillsbury Co., 914 F. Supp 97 (E.D. Pa. 1996), an
employee was discharged for sending “inappropriate and unprofessional comments ” to a supervisor via the employer’s email system. The employer had assured its employees that all email communications would remain confidential and would not be reviewed and used as a basis for termination. Nonetheless, the employee’s communications were reviewed and used as the basis for termination.
The employee sued the company for wrongful termination, claiming the employer violated “public policy” by invading his privacy. The court rejected the claim, reasoning that once the employee voluntarily communicated the comments to a second person (his supervisor) over the company email system utilized by the entire company, any reasonable expectation of privacy was lost.
Employee Privacy vs. Employer Monitoring Other courts have reached similar results:
McLaren v. Microsoft Corp., 1999 Tex. App. LEXIS 4103 (Tex. App. May 28, 1999) – no reasonable expectation of privacy for password protected personal folders on company network accessed through a company computer.
TBG Insurance Services Corp. v. Superior Ct., 96 Cal. App. 4th 443 (Cal Ct. App. 2002) – no reasonable expectation of privacy in an employer-owned computer located at employee’s home
Garrity v. John Hancock Mutual Life Insurance Co., 2002 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) – no reasonable expectation of privacy in personal folders on company network and accessed Internet sites
Privacy in e-mails
Courts more inclined to rule in favor of an employer if: Employer owns the computer and the e-mail
system Employee voluntarily uses an employer’s
network Employee consented to be monitored (usually
based in written personnel policy)
MISUSE OF ELECTRONIC
COMMUNICATION
Note to Self:
Don’t friend your boss on facebook and then complain about your job:
Fired for Facebook in Philly!
In March 2009, the Philadelphia Eagles fired a six year employee for posting a critical message about the team on his Facebook page.
The employee wrote, “I am f---ing devastated about [Brian] Dawkins signing with Denver… Dam Eagles R Retarded!!”
Despite removing the message and apologizing, the Eagles fired him in a telephone call.
On Company Time: Taxpayers’ Dime is Facebook and Twitter Time On October 29, 2009, the Boston Herald ran a
series of articles on the Facebook and Twitter exploits of Amy Derjue, an employee working for City Council President, Michael Ross.
Ms. Derjue was exposed for posting 40 Facebook postings from October 12th through the 28th during working hours. Only two postings were related to her job as Ross’ Communications Director.
Perhaps most damaging, Ms. Derjue posted that she was going to sleep at the latest the City Council meeting.
How to get fired in 140 characters or less:
“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
How to get fired in 140 characters or less:
Connor Riley, a 22 year old college student sent out the tweet and received this tweeted response from Time Levad, “channel partner advocate” for Cisco Alert:
“Who is the manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.”
Dealing with employees who misuse electronic communicationsConsiderations:
Could the employee be protected under a whistleblower
statute? Was the communication a “legal off-duty activity” which
may protected by state law? Was the communication related to political activities or
affiliations? Is the speech protected by the First Amendment? Was the communication protected Section 7 activity
under the National Labor Relations Act? Would discipline of the employee violate any anti-
discrimination or anti-retaliation laws?
Advice from an Employee Terminated for Blogging
Terminations based on employee blogging have been termed being “dooced” after the blog, www.dooce.com.
“I started this website in February 2001. A year later I was fired from my job for this website because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET. If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud that you are making it very hard for those around you to take you seriously”
Follow-Up Questions? Contact Us.
SPEAKERS:
Patricia L. Holland(919) [email protected]
M. Robin Davis(919) [email protected]
Ann H. Smith(919) [email protected]
SPEAKERS:
Patrick H. Flanagan(704) [email protected]
Norwood P. Blanchard(910) [email protected]
Ryan D. Bolick(704) [email protected]