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

 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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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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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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