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

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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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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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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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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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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