The court held Jasmine retained the standing to sueThe court analogizes to a victim of an automobile accident who does not need to keep her damaged vehicle until trial to recover for the damages caused by a negligent driver
The Court avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment under the Fourth Amendment and what particular standard ought to apply in making that determination. It acknowledged that rapid changes in communications and the means by which information is transmitted, as illustrated by advancements in technology and what society views as proper behavior, created significant challenges to setting legal standards for the workplace that would survive the test of time. So, the Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages and the case could be decided on narrower grounds, i.e., whether the search was reasonable under well-defined Fourth Amendment standards.
Social Media In the Workplace and Beyond Alexander Nemiroff, Esq. Jackson Lewis, LLP 1601 Cherry Street, Suite 1650 Philadelphia, Pennsylvania 267.319.7816 Alexander.Nemiroff@jacksonlewis.com
What is “Social Media”? MySpace Facebook Friendster LinkedIn Twitter Skype Blogs Digg, Reddit, Technorati YouTube Unvarnished Instant Messaging Texting
Social NOTworking? How many working hours are lost? 50% of Facebook users log on everyday
22% visit social networking sites 5+ times/week
Only 52% of employees say they don’t use social networking sites during work hours And that’s not counting time spent texting, instant messaging, surfing, making phone calls, etc. …
Employee Views on Social Media Use Survey says: 53% of employees say their social networking pages are none of their employers’ business 74% say it’s easy to damage a company’s reputation on social media 15% say that if their employer did something that they didn’t agree with, they would comment about it online
What Do Employers Do? 40% of business executives surveyed disagree that what employees put on their social networking pages is not the employer’s business 30% admit to informally monitoring social networking sites
Risk Factor: Negligent Hiring/Supervision/Retention An employer may be held liable for an employee’s wrongful acts if the employer knew or had reason to know of the risk the employment created
Risks for Employers Using the Web to Make Hiring Decisions Many employers and job recruiters check out potential employees on the Web Using search engines such as Google or Yahoo and internet sites such as PeopleFinders.com, Local.Live.com or Zillow.com Some studies show more than half of employers use some kind of screening on social networking sites
Hiring Decisions Based Upon Social Networking Activity Problem: A search may identify an applicant’s protected characteristics such as age, race, sexual orientation, marital status, arrests or other factors that should not be considered in a hiring decision. Solution: Have a non-decision maker conduct the search and filter out protected information. Alternatively, hire a third party to conduct the search and filter out protected information.
Hiring Decisions Based Upon Social Networking Activity Guidelines for Employers on Internet Search of Applicants If you are going to do these searches:
Do them consistently; towards the end of the hiring process
Legal Constraints on Disciplining Employees for Online Activity Unlawful Restrictions: Statement that prohibits the sharing of information concerning other employees, such as wages, hours and terms and conditions of employment. Lawful Restrictions:
Prohibition on disclosing confidential company business information and documents; Prohibition on disclosing “confidential” employee information;
Prohibition of conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with the Company’s employees.
Legal Constraints on Employee Discipline: NLRA What is protected activity:
Kiewitt Power Constructors Co., 355 NLRB No. 150 (8/27/10)
Held two employees complained to their supervisor regarding the location of where they were required to take their breaks and then told the supervisor the situation could “get ugly” and supervisor had “better bring [his] boxing gloves” engaged in protected concerted activity under the Act because the statements were spontaneous and not outright threats.
Plaza Auto Center, Inc. 355 NLRB No. 85 (8/16/10)
Held that a salesperson who shouted at his employer’s owner that he was a “f…ing crook” and an “a..hole” during a meeting with management to discuss pay and commissions, among other things, was engaged in protected concerted activity at the meeting and that his outburst was not so egregious so as to lose the protection under the Act. 23
Other Outlets for the Disgruntled Employee www.jobvent.com www.hateboss.com www.workrant.com www.fthisjob.com www.rantasaurus-rex.com
Prohibits “interception” of electronic communications
Most courts hold that acquisition of electronic communications must occur contemporaneously with transmission
Is monitoring of Instant Messages “interception”?
Risk Factor: Federal Stored Communications Act Prevents employers from using illicit or coercive means to access employees’ private electronic communications Pietrylo v. Hillstone Rest. Group, 29 I.E.R. Cases 1438 (D.N.J. 2009) Jury verdict for employees under the Stored Communications Act, 18 U.S.C. §2701(a)(1), affirmed by federal court where managers accessed employee’s blog.
Employees of Houston’s restaurant maintained an invitation-only chat room (the “Spec-Tater”) on MySpace for fellow employees to “vent” about their work experiences. It became populated with complaints about the restaurant, customers, and supervisors. One employee told supervisors about the site and they asked for her password.
Pure PowerBootCamp v. WarriorFitnessBootCamp LLC (2nd Cir., 2011)
Accessing Personal E-mails Can Violate Federal Stored Communications Act Even With No Actual Damages
Two employees left to start competing fitness facility.
Pure Power learned through 546 e-mails from four personal accounts belonging to the former employees (e.g. Hotmail) that former employees had taken customer lists, training and instruction materials, and solicited customers.
How? The former employees had stored their usernames and passwords on company’s computers.
Employees countersued under SCA -- $1,000 per count
Employee Monitoring and Privacy Issues
Key question: Did the employee have a reasonable expectation of privacy in the electronic communication?
Employee voluntarily uses an employer’s network
Employee has consented to be monitored (usually based in written personnel policy)
Employee Monitoring and Privacy Issues
Currently unclear if an employee has a reasonable expectation of privacy in blogs or IMs
Courts have split on whether there is a reasonable expectation of privacy in content maintained on third-party servers (e.g., web-based e-mail accounts)
Is There a Right to Privacy in Email, Texts, and Communications on Employer Systems? In a unanimous decision, the U.S. Supreme Court held that the City of Ontario’s review of transcripts of an employee’s text messages sent and received on a City-issued pager was a reasonable search under the Fourth Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No. 08-1332 (June 17, 2010). The Court disposed of the case on narrow grounds, preferring to avoid the risks of establishing "far-reaching premises" before the role of technology in society and its Fourth Amendment implications becomes clear.” Nevertheless, the Supreme Court outlined principles instructive to all employers that allow employees to use electronic communications devices, including cell phones, i-Phones, and Blackberries.
Policy Guidance from Quon All employers must be prepared with comprehensive computer and electronic equipment usage policies. The Court noted that these policies will help shape an employee’s expectation of privacy. Further, it is critical that practices and policies be consistent, reflect current technologies, and be clearly communicated. Employers also should consider requiring employees to acknowledge in writing that they received and reviewed these and similar policies and procedures, particularly as new technologies are introduced.
Methods to Minimize Risk Develop a written policy regarding access by HR and hiring managers to applicant and employee social networking sites Train HR and IT personnel responsible for monitoring and using electronic information on: Avoiding improper access Screening out information that cannot be lawfully considered in hiring and disciplinary decisions
Methods to Minimize Risk Prohibit access to private password social networking sites without proper authorization Do not allow any third party to “friend” an applicant to gain access to the applicant’s site Ensure employment decisions are made based on lawful, verified information
Methods to Minimize Risk Consider restriction on professional references via LinkedIn Consider blocking or limiting employee access to social networking sites through company computers
“The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.”
Key Elements of Electronic Communications Policies
Company policies governing corporate logos, branding, and identity apply to all electronic communications
Employees may not make defamatory comments when discussing the employer, co-workers, products, services and/or competitors
Based on the FTC’s endorsement guidelines, require employees to obtain prior approval before referring to company products and services and to disclose the nature of the employment relationship
Key Elements of Electronic Communications Policies Do not prohibit employees from discussing terms and conditions of employment If allowed at work, time spent social networking, blogging or texting should not interfere with job duties Remind employees expected to comport themselves professionally both on and off duty
Terms of an Effective E-Mail and Internet Use Policy
Employer should REVIEW AND REVISEpolicies regularly
Employer Overreaching The Town of Bozeman, Montana, required job applicants to provide passwords to email (Google, Yahoo!) and social networking sites (MySpace, Facebook) accounts. 98% of people polled believed this policy to be an invasion of privacy On June 22, 2009, the town rescinded the policy