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Privacy and Social Media in the Workplace


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Privacy and Social Media in the Workplace

  1. 1. CLE Seminar for In-House Counsel January 8, 2014 San Francisco, CA Privacy and Social Media in the Workplace Employer Rights and Employee Responsibilities Sandra R. McCandless Partner, San Francisco +1 415 882 2412
  2. 2. Federal Government Enforcement: Discipline for Use of Social Media United States National Labor Relations Board Enforces U.S. National Labor Relations Act Very active in arena of social networking Protective of employee rights Frequently reinstates terminated employees On line discussions about work often legally protected NLRB General Counsel has issued 3 separate memoranda August 18, 2011; Jan. 25, 2012; May 30, 2012 When is employee use of social networking protected? When are employer policies lawful/unlawful? 2
  3. 3. Section 7 of National Labor Relations Act 29 U.S.C. Section 157 • Employees have right to engage in concerted activity • "For mutual aid or protection" • Traditionally applied in unionized workplace • But applies equally where employees are not unionized • Activity is concerted if … • Involves at least one other worker • Or on behalf of others • A "personal gripe" is not concerted activity • But what is / is not "personal gripe" is often in grey area 3
  4. 4. Section 7 of National Labor Relations Act • But when does concerted activity lose legal protection? • Activity must be both "concerted" and "protected" • Reckless or malicious conduct is not protected • Like "concerted" activity, "protected" activity also in grey area • But some cases are so egregious as to be clearly unprotected • Threats of violence not protected • Per NLRB, revealing trade secrets "may" cause concerted activity to lose protection 4
  5. 5. Section 7 of National Labor Relations Act • Example of Protected Activity • New York Party Shuttle • NYC tour guide's facebook postings • Only tour guides invited to join facebook page • Referenced former employer as "worker's paradise" compared to NY Party Shuttle • No new assignments to employee • Was considered unlawful discharge • Some union involvement • Probative but never essential element 5
  6. 6. Section 7 of National Labor Relations Act • Example of Unprotected Activity • Two employees of Richmond District Neighborhood Center • Employer conducted activities for high school students • Met with management to voice employment concerns • Later one wrote he would "do some cool sh*t and let [employer] "figure it out" • Other wrote: "when start loosin' kid I ain't help'n" • Was conduct so egregious as to remove it from protection? • Answer was "yes" because of jeopardy to program funding and to safety of youth the program serves 6
  7. 7. Prohibited provisions of social media policies: NLRB General Counsel memorandum, 5/30/2012 • Don’t release confidential customer, employee or company information. . . . • Instruction employees not “release confidential guest, team member or company information” would reasonably be interpreted to prohibit discussion and disclosure of information re their own conditions of employment and those of other employees--clearly protected activities • Provision instructing employees not to “reveal non-public company information on any public site” and encompassing “[a]ny topic related to financial performance of the company”; “[i]nformation not already been disclosed by authorized persons in a public forum”; and “[p]ersonal information about another employee, such as . . . performance, compensation or status in the company” encompasses topics related to Section 7 activities & reasonably construed to include employment terms . 7
  8. 8. Prohibited provisions of social media policies: NLRB General Counsel memorandum, 5/30/2012 • Section of policy cautioning employees: “[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] or [Employer] Legal to see if it’s a good idea[,]” is also unlawful. Board has long held rule requiring permission from employer as precondition to engaging in Section 7 activities violates the Act. See Brunswick Corp.,282 NLRB 794, 794-795 (1987). • We found unlawful instruction that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as … offline.” This proscribes broad spectrum of communications including protected criticism of labor policies or treatment of employees. Similarly, instruction to be aware “[c]ommunications with coworkers that would be inappropriate in the workplace also inappropriate online” does not specify which communications deemed inappropriate at work and ambiguous. 8
  9. 9. Prohibited provisions of social media policies: NLRB General Counsel memorandum 5/30/2012 • We found unlawful the policy’s instruction employees “[r]eport any unusual or inappropriate internal social media activity.” An employer violates the Act by encouraging employees to report to management the activities of other employees. Such statements have potential to discourage employees from engaging in protected activities. Here, the Employer’s instruction would reasonably be construed by employees as applying to its social media policy. Because certain provisions of that policy are unlawful, reporting requirement is also unlawful. • Policy’s “savings clause,” under which the “Social Media Policy will be administered in compliance with applicable law (including Section 7 of the National Labor Relations Act),” does not cure the ambiguities in the policy’s overbroad rules. [General Motors, Case 07-CA-053570] 9
  10. 10. Legal provisions of social media policies: NLRB General Counsel memorandum, 5/30/2012 • Social media policy not ambiguous because provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity. For instance, Employer’s rule prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” This rule is lawful since it prohibits plainly egregious conduct, such as discrimination and threats of violence, • Rule requiring maintenance of confidentiality of trade secrets and confidential information not unlawful; no protected right to disclose trade secrets. Rule provides sufficient examples of prohibited disclosures (i.e., information regarding systems development, processes, products, knowhow, technology, internal reports, procedures, internal business-related communications) for understanding it does not reach protected communications about working conditions. [Walmart, 11-CA-067171] 10
  11. 11. Portions of Lawful Social Media Policy: per NLRB • The same principles and guidelines found in [Employer] policies apply to your activities online. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination. • Know and follow the rules • Carefully read these guidelines, [Employer] Statement of Ethics Policy, [Employer] Information Policy and Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination. 11
  12. 12. Portions of Lawful Social Media Policy: per NLRB • Be respectful • Always be fair and courteous to fellow employees, customers, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, employees or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy. 12
  13. 13. Portions of Lawful Social Media Policy: per NLRB • Using social media at work • Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. • Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use. • Media contacts • Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them. 13
  14. 14. Social Networking vis-à-vis Work: The Judicial View • Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) • Pilot created website critical of airline; invited 2 other employees to view website; VP asked for access to website • District Court granted summary judgment on claim of violation of Wiretap Act (18 U.S.C., Sections 2510-2520) and Stored Communications Act (18 U.S.C., Sections 2701-2710) by view of secure website under false pretenses • Exception to Wiretap Act if electronic communication "readily accessible to general public" • But violation in Konop because website configured to require user names and passwords available only to certain employees who were not members of management 14
  15. 15. Social Networking vis-à-vis Work: The Judicial View • San Diego v. Roe, 543 U.S. 77 (2004) • San Diego police officer made video showing himself stripping off police uniform and masturbating; sold video on adults-only section of eBay using "Code 3", a word play on high priority police radio call; terminated by City • Roe claimed violation of First/Fourteenth free speech rights • U.S.D.C. for Southern District of CA granted City Mot. to Dismiss • Court of Appeals for Ninth Circuit reversed holding conduct in protected category on matter of public concern: not internal workplace grievance, off duty, unrelated to employment • U.S. Supreme Court reversed Ninth Circuit: detrimental to mission/function of employer; not matter of public concern 15
  16. 16. Social Networking vis-à-vis Work: The Judicial View • Phone Dog v. Kravitz (Northern District of CA) 2011 • Employer: web resource provides information to research, compare prices, shop from mobile carriers • Kravitz: product reviewer and video blogger; given use of and maintained Twitter account "@PhoneDog_Noah" • Kravitz promoted Phone Dog to 17,000 Twitter followers • Resigned, refused to relinquish account, changed handle to "@noahkravitz", and continued to use account • Phone Dog alleged at least $340,000 in damages • Chief Judge Maria Elena-James refused to dismiss misappropriation of trade secrets/conversion claims 16
  17. 17. Social Networking vis-à-vis Work: The Judicial View • Pietrylo v. Hillstone Restaurant Group (D. New Jersey) 2009 • Pietrylo (server) created invitation only private group to "vent about any BS we deal with at work without … spying on us"; icon was trademarked logo • Posts included sexual remarks about management/customers, jokes re customer service specs, referred to violence/drug use • Employee initially accessed on manager's home computer • Pietrylo terminated; sued under Federal Wiretap Act and Stored Communications Acts, parallel NJ provisions, wrongful termination in violation of public policy, invasion of privacy • Voluntary dismissal of wiretapping statutes: no interception of electronic communications 17
  18. 18. Social Networking vis-à-vis Work: The Judicial View • Pietrylo v. Hillstone Restaurant Group • Alleged violations of federal and New Jersey Stored Communications Act which prohibit intentional access to stored communications without or in excess of authorization • Exception for authorization by user as intended for that user • Whether consent by other employee was voluntary demonstrates material issue of disputed fact • If duress, then not authorized • No violation of public policy: not matter of public concern, derogatory remarks, references to drug abuse • But summary judgment denied on invasion of privacy claim 18
  19. 19. Social Networking vis-à-vis Work: The Judicial View • Marshall v. Mayor of Savannah • Tiffany Marshall, trainee firefighter, switched MySpace account to private; included picture of Savannah firefighters from City website; displayed photo of her backside; hard to tell what clothing, if any, she was wearing ("I model too") • Savannah Fire learned from anonymous caller and printed • 2-28-07: order not to use Fire Dept identity without permission • 3-2-07: oral reprimand for violating rule: no permission • Refused to sign; said singled out; allegedly combative; fired • Sued for discrimination under Title VII of Civil Rights Act of 1964 (42 U.S.C., Section 2000e); court granted summary judgment in favor of City (but would result be different in California?) 19
  20. 20. Workplace Privacy: Criminal Records Checks • Employers have not impermissibly relied on arrest records for an extended period of time • But employers do still inquire about/rely on conviction records • U.S. Equal Employment Opportunity Commission Enforcement Guidance, issued April 25, 2012 • Challenges use of conviction records • Neutral policy may violate Title VII (42 U.S.C. 2000e, et seq.) if not job related & consistent with business necessity 20
  21. 21. Workplace Privacy: Criminal Records Checks • Equal Employment Opportunity Commission challenges criminal records checks by employers, claiming disparate impact on basis of race and national origin • Why: Minorities are convicted at much higher rate • Means allowable to employer to justify use of conviction records are impractical and cumbersome • Validation under Uniform Guidelines on Selection Procedures, or • Targeted screen requiring notice/opportunity to challenge • EEOC has sued Dollar General and BMW 21
  22. 22. Workplace Privacy: Criminal Records Checks • Pushback against EEOC's view • EEOC v. Freeman, No. 09-CV-2573 (D. Md. 2013) • District Court dismissed EEOC national pattern/practice case • And letter from Attorneys General of: • Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, Wyoming, West Virginia • Who labeled EEOC position as: • "Quintessential example of gross federal overreach" • But NY prohibits employer with at least 10 employees from refusing to hire based on criminal conviction, and • Texas limits liability for hiring applicant with criminal record 22
  23. 23. Workplace Privacy: Credit/Background Checks • Equal Employment Opportunity Commission: Inquiry into applicant's current or past assets, credit rating, car ownership, length of residence impermissible because tends to adversely impact minorities/women • Exception if employer can show information essential to particular job • California AB 22 (effective 1/1/12) prohibits use of credit report unless • Managerial position, position involving regular access to confidential information or entering into financial transactions or regular access to over 10K • At least 7 states limit use of credit reports; 20 more considering it • If allowable background checks: Fair Credit Reporting Act and companion state laws: Need written consent, pre-adverse action disclosure, adverse action notice if decision not to hire • Be sure vendor is knowledgeable, legally compliant 23
  24. 24. Workplace Privacy: Medical Information • May not ask job applicant about disability • May not ask job applicant to answer medical questions or take medical exam before job offer • May condition job offer on medical exam only if all in same job do so • Must keep medical records in separate medical file • Confidentiality of Medical Information Act, Cal. Civil Code 56-56.37 • Requires privacy of medical information • No health care provider may disclose information without authorization of patient except per court or agency order or subpoena HIPAA: Covered entity must obtain written authorization to use or disclose Protected Health Information 24
  25. 25. Workplace Privacy: Off Premises Conduct • Lifestyle discrimination statutes protect off premises conduct • About 30 states prohibit discipline for lawful off site activity • Many states protect smoking outside of work • 12 states protect the use of any lawful product when off duty • California Constitutional right to privacy applies to private employers • Per California Labor Code Section 98.6: cannot discharge or discriminate for lawful conduct during non-working hours • New York Labor Code 201(d): Protects legal use of consumable products and legal off premises recreational activities • California: Random drug testing of employees not allowable • How will marijuana laws play out vis-à-vis workplace? 25
  26. 26. Privacy and Social Networking in the Workplace • Employers should of course be conversant with any applicable state laws as well as with federal law. • The laws of more than one state - and more than one country - may be implicated. • The host of current and future new laws regulating employment, particularly in the arenas of privacy and social networking, will only serve to increase the causes of action available to employees in challenging employer decisions not to hire and/or to discipline/terminate. • Employment decisions should be based on objective, individualized facts which steer clear of the various areas of protection. • As always, it is the employer's documentation of its employment actions which will protect it from suit and/or minimize potential damages in the event suit is filed. 26
  27. 27. Thank you Sandra R. McCandless Partner, San Francisco +1 415 882 2412 Dentons US LLP - San Francisco 525 Market Street 26th Floor San Francisco, California 94105-2708 © 2013 Dentons Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see for Legal Notices.