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

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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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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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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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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                        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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