E-Discovery Law Review : Electronic Discovery Lawyers & Attorneys : Cozen O'Connor Law Firm : Data Preservation & E-Discovery Disputes

At 3:40 on the morning of April 3, 2003, Tamara Greene, an exotic dancer, was shot multiple times and killed while sitting in a car at the intersection of Roselawn and West Outer Drive in Detroit. According to the complaint filed by Greene’s next of kin in Flagg v. City of Detroit and Kwame Kilpatrick, (E.D. Mi. Nov. 7, 2005), the head of the Internal Affairs Department of the Detroit Police Department was fired a mere nine days following Ms. Greene’s murder. It is alleged he was dismissed for investigating a party at the Mayor’s mansion, known as the Manoogian Mansion, during which exotic dancers, including Ms. Greene, performed. As a result of this firing, the Flagg complaint alleged that members of the Detroit Homicide Department refused to investigate the Greene murder case for fear of losing their jobs. The Flagg complaint further alleged that the case was labeled “cold” only eleven months following the crime, which falls well short of the two-year period typically required by the cold case squad.  Most shockingly, plaintiffs contend that the Police Department deliberately avoided sending the spent casings and bullets collected from the crime scene to the appropriate agency to determine if they came from the gun of a Detroit Police Officer. Against this backdrop, we examine the decision rendered by Chief Judge Rosen in this case on October 5, 2011 in which he finds that the defendants deliberately deleted relevant emails in bad faith and failed to disseminate a Court Order to preserve evidence to the appropriate city departments. 2011 U.S. Dist. LEXIS 114772 (E.D. Mi. Oct. 5, 2011). Judge Rosen’s searing opinion highlights several key electronic discovery issues, including the presumption of relevance that will attach where discovery is destroyed willfully and the parameters of the permissive adverse inference sanction.

Judge Rosen initially adopted the Report and Recommendation of Magistrate Judge R. Steven Whalen recommending that the Court give a permissive adverse inference instruction at any eventual trial to sanction the electronic discovery abuses of defendants, including the destruction of incoming and outgoing emails to and from the accounts of former Mayor Kwame Kilpatrick, his Chief of Staff, former “corporation counsel” and the former Chief of Police. The Report also found that the City failed to advise the appropriate City Departments of the Court’s Order to preserve relevant evidence. Id. at *5. Both Plaintiffs and Defendants objected to the Report. 

Defendants “express[ed] confusion” as to the basis for the Magistrate’s conclusion that the lost emails were relevant – a finding necessary for an adverse inference instruction – given that the four individuals whose accounts were deleted testified that they did not send any emails concerning the homicide investigation. Id. at *6. Judge Rosen agreed with the Magistrate that “the law expressly dictates a finding of relevance where, as here, it is determined that evidence has been ‘destroyed in bad faith (i.e. intentionally or willfully”).”  Id. 

Next Defendants argued that the evidence did not support the Magistrate’s finding that the City and its counsel failed to take action to disseminate to the appropriate City Departments the Court’s March 5, 2008 Order to preserve evidence. Defendants pointed to the Chief of Staff’s knowledge of the Order as evidence that the Order was distributed. The Court concluded, however, that there was nothing to suggest her knowledge was a result of any action by the City or its in-house counsel. Defendants also relied on the testimony of the former Police Chief that she was advised of the Order and prepared a memo to the Detroit Police Department advising them of it. The Court, however, discredited the Chief’s testimony given that she was unable to recall the date of the memo and whether it was actually based on the March 5, 2008 preservation Order. The Court also found suspect the fact that the Chief testified that her outside counsel was involved in preparation of the memo despite the fact that he did not enter an appearance on her behalf until April 7, 2008. Id. at 9.

The City argued its “corporation counsel” disseminated the March 5, 2008 Order with the assistance of an outside law firm that was acting as its co-counsel at the time. However, the testimony of the “corporation counsel” contradicted this argument. He testified that he never discussed the order with the Mayor, did not communicate with outside counsel regarding the Plaintiffs’ motion to preserve evidence, believed that the outside law firm would have been responsible for handling the requirement to preserve, and that he did not know what the City might have done in response to the Order. According to the Court, this testimony “disproves” the position that the March 5^th Order was disseminated by its corporation counsel.

The City then attempted to prove that the March 5^th Order was disseminated because it was able to produce some emails from the Police Chief and two police officers. The Court held that “if the City’s in-house attorneys stood idly by as emails were deliberately destroyed in contravention of this Court’s express order – to say nothing of the more general duty of all parties to preserve evidence that is relevant to pending litigation – they should hardly pat themselves on the back for any emails that were overlooked or otherwise survived this effort.” Id. at 14.

Next, the City challenged the appropriateness of the imposition of a permissive adverse inference instruction, essentially claiming the punishment did not fit the crime. The City argued that the sanction was too steep given that the reason for the lost emails was unknown. The Court reasoned that the “short answer to this, as Plaintiffs recognize, is that the City, through its attorney Mr. Schapka, filed papers in this case affirmatively stating that ‘upon their resignations during February of 2008, Beatty and Kilpatrick’s email accounts and collected emails whether in-coming or out going, were deleted and purged from the electronic storage system.” Id. Thus, the finding of willfulness and bad faith of the defendants was based on the evidence. The Court reasoned that “it is difficult to read the City’s present objections as anything other than a continuation of the persistent effort by the City and its in-house counsel to avoid taking responsibility for egregious conduct that has seriously undermined the truth-seeking mission of civil litigation.” Id. at 18. 

Plaintiffs similarly objected to the adverse inference instruction claiming that a more severe  sanction, such as entry of a default judgment or a mandatory adverse inference instruction, were warranted. But the Court agreed with the Magistrate’s conclusion that these sanctions would “give the Plaintiffs an undeserved evidentiary windfall.” Id. It further reasoned that, given the lengthy discovery period and the voluminous records produced therein, it would be difficult to conclude that the deleted emails from the 10 month period at issue were likely to provide information not otherwise available. Id. at 27.

In connection with the adverse inference instruction, the City further complained that a permissive adverse inference instruction will permit a jury to engage in “speculation and conjecture.” Id. at 18. While the Court acknowledged that it prefers that factual findings made by a trier of fact be based on the record, it reasoned that the City’s destruction of the emails “thwarted this goal.” Id. It reminded the City that the permissive adverse inference instruction allowed the City to argue that the “inferences proposed by Plaintiffs are implausible and should be rejected.” Id. 

In sum, this opinion offers guidance concerning the imposition of the adverse inference instruction as a sanction for the deliberate destruction of electronic discovery and the refusal to properly disseminate a Court Order to preserve evidence.

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New technologies have meant new crimes and new civil liability.  Although forgeries, forensic analysis, and criminal cover-ups are as familiar as Sherlock Holmes, electronic data has created an entirely new means of falsifying evidence and necessitated specialized investigative methods.  In response, government agencies have started entirely new investigative divisions and companies involved in their own private investigations or litigation have been forced to hire special experts. 

The United States District Court for the Southern District of Florida recently ruled on the reliability of a digital forensic expert’s report.  In Coqina Investments v. Rothstein and TD Bank, 2011 U.S. Dist. LEXIS 120267 (S.D. Fla. Oct. 18, 2011),  the court was presented with allegations of electronic forgery in a civil case.  As part of the litigation, the court was asked to rule on several traditional Daubert motions seeking to exclude the testimony of various traditional types of experts, rendering opinions on financial damages and accounting practices.  The plaintiff also sought to exclude a new type of expert, who was offering an opinion in support of defendants’ claims that certain electronic documents were e-forgeries. 

Plaintiff argued that defendants’ expert’s opinion was unreliable and should be excluded because the expert reviewed only a sample of plaintiff’s data set. After reviewing the expert’s methodology and report, the Coquina Court ruled that defendants’ expert had “employed a sound metadata analysis” and, therefore, would be permitted to testify about the emails that he identified as forgeries.  The fact that the metadata expert did not review every document in the large dataset went to the weight of the evidence and did not undermine the reliability of the expert’s conclusion that the emails that he analyzed were e-forgeries.

The Coquina Court’s commonsense approach to this complex issue sets an important precedent in metadata analysis.  Electronic discovery and document productions often easily encompass hundreds of thousands, if not millions, of documents.  Metadata analysis is a very complex area of science, requiring experts to interpret facts for fact-finders.  Requiring a metadata expert to analyze every document is not only unnecessary, it would be paralyzing.  Allowing metadata experts to testify based on their analysis of a sample of documents strikes an appropriate balance in allowing the expert to assist the trier of fact while also allowing the opposing party to question the weight to be given to that expert’s testimony.

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A Pennsylvania court recently decided that information posted by a party on their personal Facebook page is discoverable.  Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) arose out of a chain-reaction automobile accident in which the plaintiffs, who were riding a motorcycle, were hit by a minivan that was hit by the defendant.  Plaintiffs claimed serious and permanent physical and mental injuries, pain, and suffering as a result of the accident. 

During the deposition of one of the plaintiffs, defense counsel discovered that the  plaintiff/deponent had a Facebook profile that she regularly accessed.  The defendant then accessed Plaintiff’s public profile and saw posts that contradicted her claims of serious injury.  Specifically, Defendant claimed that Plaintiff posted several photographs that showed her enjoying life with her family and a status update about going to the gym.  Defense counsel requested access to Plaintiff’s Facebook page, but Plaintiff refused to voluntarily disclose any information about her profile.  In response, Defendant moved to compel Plaintiff to disclose her Facebook username and password.  Plaintiff  opposed the Motion, arguing that the information sought was irrelevant, did not meet the threshold under Pennsylvania Rule of Civil Procedure 4003.1, and that access to her information would cause unreasonable embarrassment and annoyance.    

Court of Common Pleas Judge Richard J. Walsh began his opinion with a lengthy description of Facebook as the site that “helps you connect and share with the people in your life.”  Judge Walsh pointed out that the site has more than 800 million active users, 50% of whom are active on the site daily.  Although he acknowledged that Facebook has privacy settings, Judge Walsh emphasized that users must take “affirmative steps” in order to prevent their information from being shared with the public. 

The Court then turned to the issue at hand - whether and to what extent such “private” information is discoverable in a civil case.  With respect to relevancy, the Court pointed out that Pennsylvania has a “slight” relevancy threshold pursuant to Pennsylvania Rule of Civil Procedure 4003.1.  Under this standard, the photographs depicting Plaintiff with her family and status updates about exercising at the gym are “clearly relevant” because they might prove that Plaintiff’s injuries do not exist or that they are exaggerated.

The Court found that Plaintiff’s Facebook information is not privileged.  Information on Facebook is shared with third parties and, thus, there is no reasonable expectation of privacy in such information.  In addition, Pennsylvania law does not recognize a confidential social networking privilege.  As Judge Walsh explained, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”  Further, Plaintiff’s information was not protected by the Stored Communications Act, which prevents the government from compelling Internet Service Providers (ISP) from disclosing information about their users because the information was sought directly from Plaintiff, who is not an ISP. 

Finally, the Court concluded that Defendant’s request was not unreasonably embarrassing or annoying and disagreed with the claim that Defendant’s request is akin to asking Plaintiff to produce all of her personal mail.  Since Plaintiff’s postings were never truly private, there could not be any unreasonable embarrassment in producing the postings in litigation.  The Court also determined that the request would not cause unreasonable annoyance, because Defendant would bear the entire cost of investigating Plaintiff’s Facebook information. 

As Judge Walsh points out, social networking is a recent phenomenon and these issues are just beginning to infiltrate the courts.  Although relatively few courts have spoken on this issue, the standard is becoming clear: Post at your own risk. 

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 Another day. Another TWITTER event. This time it involves the National Football League. Last week, star running back Arian Foster sent a copy of a MRI image showing his severely injured hamstring to all of his followers by TWITTER. His “tweet” included an explanation of where his hamstring was specifically damaged.  

The problem is that NFL teams fight hard to keep this type of information private. Foster is one of the top running backs in the league and his availability for the first week of the season, which starts next weekend, was in question. NFL teams often guard this information zealously. They do not want the opposition to find out how injured their players are. Even if a player is not going to play, NFL teams want their opponents to have to prepare as if Foster or another star player would be available.

There is also the gambling angle. The league administration has strong and very specific rules about the disclosure of injury information. Teams must be accurate in the disclosure of their information so that other teams aren’t prejudiced. This, of course, is used by the gambling industry to make sure that the betting lines are accurate. One can only image how quickly the betting line moved before the Houston Texas operator after Foster sent his MRI to the world. Once can also imagine that his MRI was viewed by the team physicians for the other 31 other teams in the league, including the Texans first opponent, just to determine the likelihood that Foster was going to be able to play. On the way to work this morning I was listening to sport talk radio show, were one of the commentators,  an ex-NFL player said that Foster’s MRI showed his opposition exactly where they needed to hit him to do the most damage. 

On the same show, they interviewed Brian Kelly, the head coach of the Notre Dame Fighting Irish football team, about his players’ use of TWITTER. During his interview, he made a great point. He said that TWITTER and Facebook and other forms of social media are here to stay. You cannot tell players, even college ones, that they can’t use it. So, instead, he teaches them how to manage it. 

Employers should use the same approach. Don’t try to prohibit outright use of TWITTER by your employees. Social media is here to stay. I recently read an article that predicted  that -- in three to five years -- e-mail accounts run by social media sites will be used for 80% of the business e-mail in the world. This is stunning. One can only imagine the implications.

Social media isn’t going any where and TWITTER, much to the chagrin of many, isn’t going anywhere either. Employers should assume that their employees will use TWITTER an outright prohibition on TWITTER and social media is doomed to fail.

Players must also adopt a specific policy. This policy must specifically identify the company that should not be disclosed by employees by either via TWITTER or other forms of social media. The policy is important because it gives fair notice to employees that their conduct may result in termination. 

If you ever tried a case in front of a jury, you quickly realize the jurors are not interested in applying the technicalities of the law. Juries are interested in fairness. After they issue a verdict and they walk out of the courtroom, they want to feel like they spent their time dispensing justice, not legal technicalities. 

This is why a policy is so important. It is inherently fair to fire an employee for using TWITTER after they have been advised in writing that doing so could result in their termination. Fair notice is an essential element of the fairness that juries look for when they are deciding cases. This is why a policy is so important. 

Like Coach Kelly, employers should train their employees on the right way to use TWITTER and other forms of social media. Just like with email, employees must assume that every “tweet” will end up on the front page of The New York Times. As everyone knows, “tweets” are potentially discoverable. “Tweets” could be saved for several months or even longer on Blackberries, iPhones and iPads. During this training, employees must also be told that they need to avoid the impulse to TWITTER right away about a work event. You can’t take a tweet back; there is no “pullback” button. Once a tweets is on the internet, its there forever. Employees should be encouraged to be very judicious in their work-related “tweets”, to the extent they are even authorized to do them. And before pushing the send button, employees should to think about the way a potential “tweet” could be used against them or use of other competition.

To protect their confidential information, employers should also monitor the use of TWITTER and other forms of social media. To protect confidential information in the courts, employers must prove that they took reasonable efforts to protect the secrecy of that information. For certain types of employers who know that their employees essentially engage in social  media and are authorized to do it for some business purposes, these employers should actively monitor the internet to make sure that their confidential information and trade secrets are not being disclosed by their employees to the rest of the world.

In the same vein, employers must be very careful to limit access to the most secret information to a small group of employees. As Mark Zuckerberg, Facebook’s founder and CEO stated, privacy in the world is essentially dead. Keeping this in mind, employers should work their IT departments to make sure that their most confidential information is protected by limiting internal and external access; by setting up the data so that it cannot be transferred, copied, and/or printed; and by using software that easily tracks who accesses the document, when and what has been done with it.

So, once again, though the world of TWITTER can provide valuable insight for employers. The NFL literally spends millions of dollars trying to protect information regarding players injuries. Players are often told not even to tell their family about their injuries because teams will fear that this information will be divulged. Now, because of an iPhone and TWITTER, the world can see a very clear picture of Arian Foster’s MRI showing a significant injury to his hamstring.  And there is no way for him to pull it back. This is the kind of story that keeps most employers up at night, and it’s an important lesson for us all.

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If you enjoyed our "social media advisor" blog posts in 2010, we have a new blog address dedicated specifically to those same social media and employment law issues:  www.socialmediaemploymentlawblog.com.    So if you want to continue to get informative, somewhat entertaining, and hopefully useful posts on those issues, please feel free to go to that new blog address and re-subscribe to the (free) blog.   

Valuable and informative information on e-discovery issues will continue to be posted at this blog site (www.ediscoverylawreview.com).   Thank you!

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A couple of weeks ago, we posted about the lawsuit filed by the NLRB after a Connecticut company fired an employee over Facebook posts.   Much ink has been spilled in the ensuing days, with many employers becoming increasingly concerned about restrictions being placed on their ability to control their own workforce based on employees’ social media activity.   Could two recent International developments cause you to consider a relocation?

First, the British Columbia Labour Relations Board upheld an employer’s right to fire its employees based on posts made on a social networking site that were less than flattering toward the company and various supervisors.   The string of posts began with one employee posting to co-workers, who happened to be friends on Facebook: “Sometimes ya have good smooth days, when nobody’s fucking with your ability to earn a living . . . and sometimes accidents DO happen, its unfortunate, but that’s why there called accidents right?”  

That post was later followed by others, ranging from “[i]f somebody mentally attacks you, and you stab him in the face 14 or 16 times . . . that constitutes self defence doesn’t it????”, to references to supervisors engaging in sexual conduct and the company itself consisting of “crooks” who are out to “hose you.”    In upholding the employer’s decision to terminate the offending employees, the Canadian Board agreed with the company’s decision that the postings both created a hostile environment for supervisors and co-workers, and also were likely to damage the company’s reputation and interests.

In another apparent victory abroad for employers, an industrial arbitration council outside of Paris, France upheld an employer’s decision to fire two employees for posting “denigrating” comments about the employer during a private Facebook chat.   These posts seemed fairly innocuous by comparison, consisting of one employee commenting to two others that the company was a “club of ill-fated” employees, and that being in the particular club (i.e., the company) made one of the employee’s life miserable.   

The employees argued that the posts and conversation were private and could not be used as evidence before the council in support of the terminations.  The council disagreed, finding that because the Facebook conversations could be viewed by “friends of friends”, and that the existing privacy setting allowed a significant number of non-employees to view the comments, the company properly determined that the employees were denigrating the company and abusing their right to free expression under the applicable labor code.

Employer Take Away:   What should you as an employer take away from this development?      The law is rapidly developing, both here and outside our borders, in terms of what you can and cannot rely upon in making employment-related decisions.    Beyond staying in touch with these and other continuing developments in the social media and employment law field, it is critical that you stay abreast of the limitations imposed in the particular jurisdiction where you are engaging in business with your employees.

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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.

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One of the more difficult things for employers, human resources professionals, and lawyers to do in the employment law field is keep up with all the acronyms.   One of the latest is “GINA”, or the federal Genetic Information Nondiscrimination Act, that first took effect in November 2009.   However, last week, the United States Equal Employment Opportunity Commission (“EEOC”) issued final regulations interpreting GINA, which will become effective in January 2011. The new regulations will have far-reaching implications for social media activities.

At its heart, the EEOC recognized that “GINA is intended to prevent discrimination based on concerns that genetic information about an individual suggests an increased risk of, or predisposition to, acquiring a condition in the future.” Title II of GINA, thus, makes it illegal for employers with 15 or more employees to harass, or discriminate or retaliate against, an applicant or employee because of his or her genetic information.   The new regulations contain a plethora of defined terms, including “genetic information”, which is defined to include (among other things) genetic tests of the individual or his or her family member, the individual’s family medical history, and genetic information of a fetus carried by the individual or a family member of the individual.

Critically, the new GINA regulations do not solely address what you can or cannot do once covered information is obtained; rather, the regulations also speak to how you may or may not “acquire” such information, thus effectively instilling a social media element to the dialogue.   For example, Section 1635.8 of the new regulations (“Acquisition of Genetic Information”) expressly provides that an employer:

“may not request, require, or purchase genetic information of an individual or family member of the individual[.]    ‘Request’ includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; . . . and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”

There are certain exceptions to the prohibition on acquiring genetic information, including “inadvertent acquisition” under certain circumstances.   However, the exceptions are stated narrowly, and obviously there has not yet been a full development of the rules and exceptions contained in the new GINA regulations, which will undoubtedly come through further agency action and lawsuits.  

Employer Take Away:   What should you as an employer take away from this development?    As is the case in the new GINA regulations, we expect that technology and social media will continue to be expressly accounted for in new employment legislation enacted on a going forward basis. It is important for you to develop a good grasp of the rules and prohibitions contained in the new GINA regulations as the New Year’s effective date quickly approaches.

Would you be violating GINA’s acquisition ban merely by “friending” an applicant or employee on Facebook and being exposed to that individual’s entire profile, which may include postings about covered “genetic information”?   Have you violated GINA by doing a Google search to find the typical background information about an applicant or employee, or by reading a personal blog of that individual that you discover through your search, and that reveals certain “genetic information”?   What about expressing sympathy or inquiring during a social networking chat with an employee about a revealed illness that the employee states is “not surprising because both of my grandparents had it”?   The regulations arguably limit the reach of the prohibition by only banning searches that are themselves “likely to result in a covered entity obtaining genetic information.”   Yet, the regulations also refer to Internet searches as only one example of a prohibited “Request”, again leaving the development of the full scope and nature of GINA’s provisions for another day.

You have, hopefully, become sensitive by now to some of the caveats inherent with the use of social media information for employment-related decisions.   Now, you should also understand the potential dangers in simply acquiring certain information about an employee or his or her family member, and make sure that your policies and practices relating to any processes for learning about an applicant or employee are fully compliant with GINA’s new regulations.

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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.

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The National Labor Relations Act (“NLRA”) is one of those employment statutes that is rife with misunderstanding in the minds of many employers who believe that the NLRA is only applicable to the unionized workforce.   In fact, while the NLRA does apply largely to the union setting, and does impose various coverage and industry thresholds, it is important to dispel this employer myth by understanding that the NLRA also applies to private, non-union employee settings as well. And, as the National Labor Relations Board (“Board”) demonstrated this past week, social media is infiltrating this area as well.

Enacted in 1935, the NLRA affords certain protections to employees, including the right to engage in “concerted activities” for their “mutual aid or protection.”   Employers can be found to have engaged in an “unfair labor practice” if they interfere with the exercise of that right.   To further hit you with legal terms, “concerted activities” consist of activities in which an employee engages with, or on the authority of, other employees, and not merely on that employee’s own behalf.

On October 27, 2010, the Board filed a complaint against American Medical Response of Connecticut Inc., after the ambulance service fired an employee for criticizing her boss on Facebook.   After an internal dispute at work, the employee apparently posted negative remarks about her boss on her Facebook page, albeit from her home computer.   That comment apparently prompted “supportive responses from her co-workers”, which then resulted in additional negative comments being posted by the employee about her boss and employment conditions.   The Board’s complaint alleged that the employee was unlawfully terminated for engaging in protected concerted activities with her co-workers.

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

(1)        One cannot overstate the need to create appropriate social media policies that are not – as the Board suggested in last week’s complaint – overly broad and perhaps unlawful on their face.

(2)        When considering taking adverse action against an employee based on – or after obtaining knowledge about – the employee’s social media statements or conduct, you should at a minimum consider whether that employee was arguably engaging in protected activity under a statute such as the NLRA.   Was the employee engaging in activity that bears a relationship to employees’ interests as employees, as opposed to, say, political or non-employment-related interests?   Do the statements evidence the mere lashing out by, or insubordination of, a single employee based solely on his or her own opinion, or is there evidence of an intent or effect of engaging in “concerted” conduct between or among more than 1 employee, such that the activity could be for their “mutual aid or protection”?

            We have seen, and blogged about, the trend of decisions refusing to protect the privacy and substance of many social media statements and acts when they collide with paramount employer and litigation interests.   However, you as an employer still need to walk that fine line and not react in knee-jerk fashion when faced with less than glowing comments posted about you by an employee.

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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.

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In increasing numbers, employers are looking at credit histories to make employment-related decisions.   A recent study by the Society for Human Resource Management found that as many as 60% of its members had consulted credit reports of applicants and current employees to make decisions ranging from hiring and promoting to discipline and termination.  

Like with all other types of information, social media affords easier access to employees' financial and other background information, as online resources (for the employer itself, or a retained third party investigator or agency) exist to obtain driving records, criminal histories, and credit-related reports.   It is only natural to think that employers will continue to want to use such accessible information to get a full and complete picture on someone it considers bringing in to its work environment.   Indeed, third-party investigative firms have been created for retention by employers in order to scour the World Wide Web and create a sort of social media dossier on applicants and employees. Individuals, on the other hand, continue to express a desire to be treated on the merits of their abilities in a process that is free from bias and inaccuracies.

Last week, the United States Equal Employment Opportunity Commission (“EEOC”) held a public hearing to consider the potential discriminatory impacts of employer use of credit histories.   Studies were cited for the proposition that a poor credit history, for example, may not have a direct correlation to the ability to perform one’s specific job, but instead may reflect an adverse bias against women, minorities, or disabled individuals.   The EEOC has not yet announced any immediate course of action it will take at the end of the public hearings as a result of these studies. But one can assume that the federal agency will at some point issue a new policy or position statement on the use of credit and other background checks by employers.

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

While background information and histories are readily accessible, you need to be cautious about the how, when and what of obtaining this type of history, even when it comes from an applicant’s or employee’s own social networking sites. A couple of suggestions:

(1)        Determine whether you want to rely on credit histories and other background information in the first place, and, if so, consider whether to obtain and rely on such information only for certain positions, rather than across the board with respect to all applicants and employees. For example, conducting a credit check for a restaurant chef or file clerk who will have no financial responsibilities may be unnecessary and may not be worth the risk of potential liability.    On the other hand, an auditor or a bank teller may have job duties that warrant certain considerations.

(2)        If you are going to check an individual's background, make sure you are complying with the strict requirements in existing law.  The federal Fair Credit Reporting Act (“FCRA”), the federal Bankruptcy Code, and even Title VII of the Civil Rights Act, all proscribe the misuse of credit histories.   In addition, FCRA contains very specific disclosure and notification obligations on employers in many cases, even requiring the use of specific forms before and after obtaining certain background information and taking adverse employment action against the applicant or employee.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Access.   Much of what we write about when it comes to social media involves the nature of access that employees have to various forms of social media, including employee use of social networking sites and blogs.   Taking one step back, it is worth considering the means by which employees are given access to social media: employer-provided Blackberries and other PDAs.   Before just randomly giving out these devices to all employees, employers should heed a very important warning.

First, employers should think about the impact that easily accessible social media has on productivity.   According to the Department of Labor, workplace productivity for this past quarter (April to June 2010) saw its largest drop in almost four years.   Many factors account for this eye-opening data, but the amount of time that employees continue to spend accessing and actively engaging on social media sites, particularly during working hours, cannot be ignored.   It seems as if companies are constantly searching for that perfect balance between increased efforts to monitor such access in order to improve productivity, and a desire to avoid the George Orwellian-like atmosphere where “big brother” serves to eradicate employee morale.

Second, there is a potentially greater concern than simply trying to improve productivity while also maintaining high morale: the need to control employees’ work time. Technology has torn down the office walls, making anywhere and everywhere in the world a virtual cubicle.   Employees not only have greater access to company documents and e-mail from home computers, but Blackberries and similar devices allow employees to remain connected with the office, and with clients or customers, day and night.   These devices provide the means for employees to access company information, as well as social media through the Internet.

Indeed, coupled with the increasing number of employees allowed to telecommute, it is practically impossible for an employer to control, let alone know about, all hours in which employees are performing work for the company, particularly when much of that work is often done on a Blackberry.   Moreover, the fact that employees in many industries often receive their compensation in the form of commissions provides its own incentive for employees to work as many hours as possible without the encumbrance of the typical workday or office walls.

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

(1)        Effective policies should spell out issues such as when an employer can monitor employee access to the Internet, and what an employer can monitor (including the ability to monitor company-issued laptops and Blackberries, and private accounts on those devices).   In a similar vein, the very strict requirements contained in federal and state wage and hour laws compel a well-defined overtime policy that is distributed and communicated to all employees.   Even if an employee works overtime that is not authorized, an employer in most cases may still be required to pay overtime compensation for that work, although the employer can certainly discipline and even terminate an employee for performing unauthorized overtime.  

(2)        Employers should say what they mean and mean what they say.   If the company maintains a policy that employees should not work after hours, then it should not create a culture where employees feel as if they are expected to “check in” at all hours through home computers or Blackberries.

(3)        Employers should ensure that the appropriate employee classifications are made for wage and hour purposes, and that the appropriate records are maintained to support the proper wage classifications for employees.   To avoid being concerned with the amount of time spent on a Blackberry, consider giving Blackberries only to exempt employees. Otherwise, care must be taken to ensure that work being done out of the office on a Blackberry or similar device is properly accounted for, and that one can distinguish between the performance of “work” and access to forms of social media for personal use.

In all cases, employers should consider instituting a documentation procedure for non-exempt employees (and even exempt employees) to better track (and better defend itself against) the number of hours an employee later claims he or she worked. In light of today’s changing workforce from the standpoint of increased use of technology and more time spent outside the traditional office, a company should consider requiring a written employee certification, for example, at the end of each pay period attesting to: (i) the number of hours worked during that period, and (ii) the fact that the employee did not work more than 40 hours during that period.   Such a certification will not eliminate the potential for an employee to claim in a subsequent lawsuit that hours were worked in addition to those identified on the certification. However, a contemporaneous certification completed regularly by the employee may bolster your company’s defense of that claim.

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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.

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Are you tired of the press surrounding the Steven Slater incident with his employer, Jet Blue?   The coverage of Mr. Slater’s airplane exit due to apparent stress, and becoming fed up with an airline passenger, has been nothing short of remarkable.   Even his employer acknowledged the craziness of the situation through a blog post on its own web site: “It wouldn’t be fair for us to point out the absurdities in other corners of the industry without acknowledging when it’s about us.” And clearly, the final stanza of that employment sonata was never really in doubt.

However, the challenging cases are the ones that are not so extreme. It is unlikely that one of your employees will be opening the cabin door to your office at 30,000 feet.   One can dismiss the Slater story as just the latest introduction to America’s new reality show star, and be thankful that no one really got hurt.   Or, it can be a good lesson for those interested in social media and employment law. 

In other words, it is just as possible that an employee will express some acute stress or anger in a different way than Mr. Slater did.   For example, an employee can express anger or outrage generally or toward a particular co-worker in a blog post, on a social networking site, or a company’s intranet.   The stress caused by the troubled economy, or even a discrete tragic event such as 9/11, may lead to an increase in the number of employees whose productivity diminishes, and who may find social media as an easy and available outlet.   Additionally, increased stress coupled with the significant time spent in the office could provide an inappropriate portal to harassment or violence in the workplace.   If and when an employer becomes aware of an employee’s expression through social media, some measure of care should be taken before the employee’s words (and, perhaps the employee) are summarily dismissed.

It is readily acknowledged that employers do not have to provide a stress-free work environment.   Moreover, claims that one suffers from stress due to the personality of a particular supervisor have not been well-received by courts. However, under statutes such as the Family and Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”) (and their state and local counterparts), stress-related conditions and their manifestations may be protected either as a “serious health condition” or a “disability”, depending on their nature and severity, thereby thrusting the employer into a necessary course of action. 

Indeed, effective January 1, 2009, the ADA Amendments Act requires that the term disability “be construed broadly,” thus potentially affording greater rights to a greater number of employees.   This year alone saw an increase in stress-related claims. For example, in Pacenza v. IBM Corp., a terminated employee claimed he had a disability (post traumatic stress disorder) which manifested itself in, among other things, a compulsion to look at sexually explicit pictures on the Internet at work.   In Millea v. Metro-North Railroad Co., a court held that a jury properly found that an employee with a history of post traumatic stress disorder was entitled to rights under the FMLA after suffering an intense panic attack from a threatening call received from a supervisor.

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

            (1)        Be aware of signs that an employee may be engaging in behavior or expression that could be considered protected under the law.   Employers are not required to be mind readers, and the obligation will be on the employee in most cases to provide adequate notice to the employer of a particular condition and the need for some response or assistance from the employer. However, social media has afforded employees a greater microphone for expression and greater security “behind the computer”, when they might not have expressed similar feelings in a personal, one-on-one setting.   Employers should have adequate policies in place, and should effectively train supervisors and managers to understand the implications of certain employee expression and the need to consider how the company should respond.

            (2)        Do not quickly dismiss employee expression through social media as being that of a “rogue” employee, or an employee who may just be letting off harmless steam on that particular day.   Employers, and particularly their supervisors and managers, need to understand what to look for, what their legal obligations may be, and the consequences of not following the law. Notwithstanding what may appear at first blush to be someone looking for his or her 15 minutes in the spotlight.

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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.

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We all spend a lot of time analyzing legal developments occurring in the recent past, as well as those that have just happened.   Often neglected is the anticipation of where the legal trend will be taking us in the months and years to come.   You are now in the right place.

Nostradamus stated not so recently, “I do but make bold to predict (not that I guarantee the slightest thing at all[.])” (Open letter to Privy Councillor (later Chancellor) Birague, 15 June 1566, from Lemesurier, Peter, The Unknown Nostradamus, 2003). With that same caveat, here are the Top 5 issues that are expected to have a greater impact on employers as we move forward and litigation begins to catch up to the increased use of social media:

            1.         Privacy claims and the ability to regulate off-duty activities. Employers will continue to have unprecedented access to information about what employees are doing on their own time – their weekend musings, organizational affiliations, recreational and political activities, and off-duty blog posts.   Yet, most states (like New York) have some form of “legal activities law” that prohibits employers from taking certain action based on many of those categories of information. A key inquiry will ultimately become whether there is a nexus between the employee’s activity and the employee’s ability to perform his or her job. 

Likewise, there will be an increase in privacy-related claims as employers continue to find ways and reasons to monitor employee communications on company systems. One such claim that will become more prevalent relates to employer monitoring of, and access to, private or attorney-client communications through a non-company source over a company-owned system.   For example, an employer gaining access to an employee’s e-mails sent through a private AOL account, albeit on the company’s computer system. Employers must ensure that they protect themselves, for example, through appropriate employee-signed documents.

            2.         Competition and trade secret disclosure. Employees will continue to use social media to the detriment of employers. Among the litigated questions that will likely increase are: Whether an informal web-based chat about a company’s development or expansion plans constitutes an improper disclosure of an employer’s trade secrets or other confidential information? Or, whether employees who post credentials, change of job notices, and job experiences on web sites such as LinkedIn or Facebook are violating non-compete or non-solicitation agreements?

            3.         Employer liability to third parties.   More third parties will become affected by employee use of social media and improved technology. This will lead to an increase in claims that an employer should be vicariously liable for an employee’s acts. For example, defamatory statements by an employee about another individual or company may expose an employer to litigation. Similarly, an employee who causes an accident by texting while driving, or engaging in other forms of social media expression while driving, when that employee is using a company-owned phone or device, may also prompt a claim against an employer. As in the other cases described above, employers should maintain appropriate policies.

            4.         Union avoidance.   The use of social media will not only increase on an individual basis, but will also become a greater outlet for collective expression. As groups form and employees have an easier way to organize, employers must be sensitive to the proscriptions contained in the law against taking certain action in some cases against employees who engage in concerted action.

            5.         Avatar.   No, not the James Cameron movie. Avatars are virtual characters that interact with each other online in virtual worlds, where the avatars sleep, eat, work and even have sexual relationships. As more employees spend more downtime in these virtual worlds (either transacting business or engaging in personal relationships), potential liability can exist for employers when the virtual becomes real, such as, for example, if supervisory and subordinate avatars are engaging in certain relationships and role playing that ultimately becomes a sexual harassment claim in the “real world.” 

Employer Take Away: What should every employer take away from this development? Employers should consider and understand the potential for liability exposure in these 5 areas moving forward, and consider the appropriate ways to be pro-active in order to remain ahead of the social media forecast.

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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.

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Although the imposition of sanctions for misconduct involving electronic discovery continues to gain momentum, it is still rare that courts turn to the ultimate sanction: the dismissal of a lawsuit. One plaintiff in an Illinois tort case left the court with little choice. In Peal v. Lee, et al., 2010 Ill. App. LEXIS 760 (Ill. App. Ct. 1st Dist. July 30, 2010), the appellate court affirmed the dismissal of a lawsuit due to the plaintiff having intentionally destroyed over 20,000 computer files the day before the defendants’ expert was to inspect the computer.

The plaintiff ice skating instructor sued his employer and others for, among other things, defamation and intentional infliction of emotional distress. While the Complaint alleged that the tortious conduct occurred in 2005, the defendants were in possession of letters that the plaintiff had submitted to the defendants in 2004 complaining of the same conduct. As a result, the defendants moved to dismiss under the statute of limitations, but the court refused to do so because the plaintiff denied authoring those documents.

Fast forward to discovery: The defendants sought to obtain evidence confirming that the plaintiff had written those 2004 letters. After the plaintiff violated a court order requiring that he produce his computer, the court again ordered that the computer be produced by April 10, 2009. The defendants’ forensic expert would later uncover that, on April 9, 2009, the plaintiff used four different data “wiping” programs to permanently delete data from the hard drive, and that before that date, the plaintiff had used three other such programs. This, notwithstanding that his attorney had sent him defense counsel’s electronic discovery preservation letter.

The defendants wisely moved to dismiss the case because of spoliation. To say the least, the trial court was not humored by the plaintiff’s explanation that he had downloaded “cleaning programs” to remove viruses on his computer. After an evidentiary hearing, the court dismissed the case with prejudice. The appellate court found “no evidence” showing that the trial court abused its discretion in dismissing the case. The court’s disdain for the plaintiff’s misconduct was evident, and perhaps best reflected in its colorful description of plaintiff’s arguments: “completely disingenuous,” “nervy,” “hollow,” “patently untruthful,” and “pure pettifoggery.” The plaintiff claimed he did not act in bad faith; the court responded that the plaintiff’s conduct is “the personification of bad faith.”

Few can be surprised by the trial court’s dismissal and the appellate court’s biting affirmance given the plaintiff’s shocking conduct. Still, this case demonstrates that courts can and will resort to the sanction of all sanctions when a party takes such nefarious steps to thwart the discovery process and more generally to undermine the integrity of the judicial system.

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                        One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets.   We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security.   On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.

                        The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.”   The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.”   And other intelligent banter.

                        The court first acknowledged that even posts on a social networking site can be subject to the elements of a legal claim for defamation. Thus, an aggrieved individual must identify, among other things, a false “statement of fact” that was published without authorization by the subject of the statement. However, the court in Finkel noted that “’rhetorical hyperbole’ or ‘vigorous epithet’ will not suffice.” In determining whether liability lies, “context is key” and one must weigh the “broader social context or setting surrounding the communication[.]”   Under that backdrop, the court in Finkel ultimately dismissed plaintiff’s defamation claim, stating:

“A reasonable reader, given the overall context of the posts, simply would not believe that the plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such a manner she morphed into the devil.   Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact.”

                        Yes, this may be an extreme case. And the ultimate result of Finkel is obviously a good one for the party defending the claim of liability. But do you want to take the chance in the next case by not being proactive in today’s social media world?    Even though plaintiff here did not prevail, I think the message is clear.  

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

(1)       Informality is not a defense. Although context will be one factor to consider, the fact that statements are made or conduct occurs on a more informal social networking site or blog does not insulate the statements or conduct from potential liability. Employers must make sure that their written policies and employee training emphasize that informality can breed an increased risk of liability for the company, and that traditional legal theories (and employment prohibitions) apply equally to web-based statements and conduct.

(2)        Ease is not a defense either.   The ease with which employers and employees alike may converse, obtain information, and share private experiences does not mean that “old rules” do not still apply. It is still discrimination to take action because of one’s pregnancy or one’s participation in a gay and lesbian organization, even if the employer only learned that information from reading a profile page. Just as it still may be sexual harassment if the offending chatter took place on a Facebook “wall-to-wall”.   Employment policies and practices must consider whether employment-related decisions should be based, in whole or in part, on information obtained through social media sites in the first place, and, if so, which company officials should be involved in the information gathering and decision making processes.

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                        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.  

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                         The circumstances surrounding the forced resignation this month of Shirley Sherrod from the United States Department of Agriculture highlights both the positives and the perils of making employment-based decisions based on information obtained from the Web.

                        We all know that Ms. Sherrod was forced to resign after a blogger posted limited excerpts of a speech she gave to the NAACP.   Those excerpts depicted her as a racist, some argued, resulting in various government and non-government officials calling for her to leave her post. However, once the full video was reviewed, it became clear that what Ms. Sherrod had been describing to the NAACP was, in fact, reflective of just the opposite; that her story was an example of one who moved beyond race when it came to helping someone in need.   The backlash continues, as many in the current administration have gone so far as to offer her a new job in the Department.

                        Employers – both private and public - should heed this valuable lesson. We are all more than aware of the plethora of information that can be obtained about current employees, and even inquiring job applicants.   As easy as it is to get this information, it is critical that employers do not fall into the lazy trap in order to avoid potential liability.   For one, employers may learn more than they really need to know (or should know) about lawful activities in which current or potential employees are engaging, as well as about organizations in which they are active or personal characteristics that are not otherwise apparent from a resume or “normal” job interview.  

                        Second, the information obtained, and relied upon for a particular employment-related decision, may be, simply, wrong.   Perhaps only an edited excerpt of a larger source of information was obtained, or perhaps the subject of the information turns out to be an individual other than the current or potential employee. Relying on that information as the basis for an adverse job action is, at best, embarrassing, and, at worst, a potential liability exposure risk.

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

(1) Make sure you know exactly what you are looking for when it comes to seeking Web information about a current or potential employee, and that you have assigned the appropriate individual to obtain that information at the right time in the decision-making process.

(2) Make sure any employment-related decision resulting from Web-based information is fully supported and documented.   Do not let the informalities and ease of the Internet lull you into a failure to do your due diligence.

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As with so many technological advances in the last 20 years, everyone is jumping at internet opportunities and no one wants to be left behind. This is particularly true of businesses, constantly innovating and fighting to stay ahead of competitors and in touch with all potential consumers at all times.

A quick search of recent media and business publications reveals countless articles telling companies not miss these important opportunities to take advantage of the "massive power" of these social networking sites for as little as $200. While these are understandably enticing opportunities for businesses trying to survive and even thrive in this tough economy, they should not be pursued blindly or at significant cost in other areas, such as litigation. Companies must be aware that a small $200 investment could cost them millions in litigation expenses if not properly monitored and managed.

Although there have been no major cases discussing this issue in relation to businesses in United States courts - yet - trends in e-discovery litigation and a recent Canadian appellate court decision present a strong argument that American courts will hold companies responsible for preserving the content of their social networking sites for litigation purposes and will not hesitate to penalize these businesses when they do not.

In Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), the court stated that the content of Facebook and MySpace constitute constitutes "data and information in electronic form" producible as "documents" under the relevant provincial Rules of Civil Procedure governing the scope of document discovery. The court went on to state that "Facebook’s Terms of Use and Principles make it clear that a person’s postings fall under that party’s control or power since the account user may post or remove content."

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In a landmark opinion by Judge Lee H. Rosenthal, the court in Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010) (opinion) ordered an adverse inference instruction against a group of defendants for intentional spoliation of evidence. The facts of the case are pretty straightforward: A group of forensic engineers left Rimkus Consulting Group to set up their own competing business. After leaving the company, the employees filed suit in Louisiana seeking to nullify certain non-compete agreements. Rimkus filed a separate lawsuit in Texas, alleging that the defecting employees breached the non-competition and non-solicitation covenants in their written employment agreements and that they used Rimkus's trade secrets and proprietary information in setting up and operating a competing business, US Forensics. Rimkus also alleged that the former employees engaged in activity which lead to spoliation of evidence. The court agreed that the defendants, former employees of Rimkus, had participated in intentional spoliation of evidence by failing to preserve relevant ESI, deleting ESI, and destroying laptops with relevant ESI. However, in declining to impose ‘terminating sanctions’ for intentional spoliation, the court held: “The sanction of dismissal or default judgment is appropriate only if the spoliation or destruction of evidence resulted in “irreparable prejudice” and no lesser sanction would suffice.” In liu of ‘terminating sanctions’, the court ordered an adverse inference instruction and for defendants to pay plaintiff’s attorneys fees and costs.

Judge Rosenthal acknowledged the recent Pension Committee case, but was careful to note the differences between the two cases:

“The focus of Pension Committee was on when negligent failures to preserve, collect, and produce documents--including electronically stored information--in discovery may justify the severe sanction of a form of adverse inference instruction. Unlike Pension Committee, the present case does not involve allegations of negligence in electronic discovery. Instead, this case involves allegations of intentional destruction of electronically stored evidence.”

    Many commentators have suggested that the Cammarata decision may end up being equally as influential as the Pension Committee decision. For more analysis about the connection between the two cases, Mary Mack has written an excellent article, which can be accessed: here.

Before the ink was dry on Judge Scheindlin’s groundbreaking “no written legal hold = gross negligence” opinion in The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order), subtitled “Zubulake Revisited: Six Years Later,” Judge Rosenthal, in Rimkus v. Cammarata, 07-cv-00405 (S.D. Tex. Feb. 19, 2010) drew careful lines around the court’s inherent power to sanction, even in the face of bad faith, and introduced the concept of preservation proportionality. Both opinions are available at the end of this article.
 

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On January 11, 2010, Judge Scheindlin, who authored the groundbreaking Zubulake opinions, issued a groundbreaking eDiscovery opinion. Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Scs., 2010 U.S. Dist. Lexis 1839 (S.D.N.Y. Jan. 11, 2010), involved an action against defendants who were connected to a hedge fund that lost money. These defendants sought sanctions against the plaintiffs for their alleged failure to properly preserve and produce documents, including electronically-stored information, and for submitting false declarations relating to their collection and production efforts.

In an 87-page opinion, Judge Scheindlin addressed key issues, including the definition of negligence, gross negligence and willfulness in the discovery context, and what types of conduct constitute this type of behavior. Judge Scheindlin also reviewed the law governing the imposition of sanctions for failure to produce electronically-stored information. In the end, Judge Scheindlin held that all of the plaintiffs were either grossly negligent or just negligent in complying with, and satisfying, their discovery obligations. Ultimately, she decided to issue a permissive spoliation/adverse inference instruction against the plaintiffs.

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