Pleading: Social Media in California: Policing Workers Online


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Pleading: Social Media in California: Policing Workers Online

  1. 1. 1 SOCIAL MEDIA IN CALIFORNIA: HOW FAR YOU CAN LEGALLY GO TO POLICE WORKERS’ ONLINE CONDUCT ON FACEBOOK 2 AND OTHER SOCIAL-NETWORKING SITES 3 I. Introduction. 4 A. Names 5 B. The Increased Use of Social Media and Social Networking 6 1. In February 2009 – social networking sites eclipsed personal e-mail in 7 global reach. 8 2. Facebook reports that 50% of its 350 million users access the site at least 9 once a day. 10 3. If Facebook were a country, it would be the third largest in the world, 11 approaching 600 million users. 12 4. Twitter users post 90 million “tweets” per day. 13 5. Social media will replace email as the primary vehicle for interpersonal 14 communications for 20 percent of business users by 2014. 15 II. The Legal Risks Associated With Peering Into Applicants’ and Employees’ Online 16 Activities, and Best Practices for Minimizing Potential Trouble Spots. 17 A. Right to Privacy 18 1. Constitution or Statute – California employees are protected by a right of 19 privacy in the California Constitution and under California common law. A 20 balancing test applies to determine if a legitimate interest is present that is 21 strong enough to warrant invading an individual’s right to privacy. 22 2. Public vs. Private – As to information available on social networking sites, 23 the individual’s right to privacy may be different depending on whether or 24 not the profile is public or private. Arguably, an individual would have a 25 greater expectation of privacy to the extent he/she took steps to limit access 26 to the information on his/her profile. In addition, as will be discussed later, 27 the employer will have more leeway to investigate the employee depending 28 on the expectation of privacy created by the employer. LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA
  2. 2. 1 B. Fair Credit Reporting Act/Investigative Consumer Reporting Act 2 The Fair Credit Reporting Act (FCRA) and Investigative Consumer Reporting 3 Agencies Act (ICRA) require an employer to obtain the applicant’s consent before 4 conducting a background check. Also, a California Consumer Credit Reporting 5 Agencies Act for credit checks. 6 C. Discrimination Claims 7 1. Pre-employment Inquiries: General rule is that you can’t use information 8 that would be inappropriate to make a hiring decision obtained via social 9 media if it would be inappropriate to utilize such information if it was 10 obtained by other means. May be difficult to prove in litigation that the 11 information was viewed yet not used. Plaintiff’s counsel may request 12 statistical evidence of the applicant pool. 13 2. Adverse Employment Actions: Colleagues may make comments on social 14 networking sites that could be harassing or discriminatory or considered 15 evidence of harassing or discriminatory conduct. 16 D. Labor Code 96(k) – Prohibits employers from taking employment actions against 17 employees because of lawful off-duty conduct. 18 E. Labor Code 232 and 232.5 – Allows employees to discuss their wages/working 19 conditions and prevents the employer from disciplining or discharging an employee 20 for doing so. 21 F. California Labor Code Sections 1101-1102 – Prohibits an employer from taking 22 adverse action against an employee because of his or her political activities or 23 influencing an employee’s political activities. 24 III. Best Practices for Using Facebook, Myspace, LinkedIn, and Other Sites to Conduct 25 “Background Checks.” 26 A. FCRA/ICRA – Before conducting any form of background check on an applicant 27 (including accessing a social networking site), safest to obtain the applicant’s 28 permission to do so. This will reduce your exposure to liability for invasion of LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -2-
  3. 3. 1 privacy claims based on unauthorized background checks. However, unlikely that 2 if you do an investigation internally on social networking sites that this would lead 3 to liability under the ICRA. Would not apply to an internal investigation under the 4 FCRA. 5 B. Discrimination Claims 6 1. If you do use social networking sites to check on applicants, do so in a 7 consistent manner. Do not use it only for members of a protected class. 8 2. Have a neutral party conduct the search, filtering out the protected class 9 information and only passing on the lawful information. 10 3. Consider searching social media sites only after the initial in-person 11 interview. This gives the employer more information with which to make 12 its decision and thus, it is easier for the employer to explain why it did/did 13 not select a particular employee. 14 4. Identify the criteria used. 15 5. Discuss your findings with the applicant. 16 6. Retain a record of pages viewed. 17 7. Do not lie about your identity to gain information. 18 8. Consult with employment counsel if you intend to make a decision based on 19 information on a social networking site to ensure that you can adequately 20 document a legitimate non-discriminatory reason. 21 C. Privacy Claims. Will depend on whether or not notice was provided, what type of 22 privacy protections the individual has on the site and what the interest is in 23 obtaining the information. 24 IV. When You May Discipline an Employee or Refuse to Hire Someone Based on The 25 Information Gleaned From Social-Networking Sites. 26 A. Refusal to Hire – Is this Discrimination? 27 B. Discipline. 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -3-
  4. 4. 1 C. Social Media Abuses – Employers must protect employees from harassment. 2 Employers are not required to monitor all private communications but they have a 3 duty to stop co-worker harassment if they know of or have reason to know that 4 harassment is taking place. An employer can be strictly liable for a supervisor’s 5 harassment. The line between work and non-work is getting blurred. Claims of 6 tech-based harassment area on the rise because of the proliferation of handheld 7 communication devices. There is also an increased risk that comments, such as 8 those on social networking sites, could be broadcast to a larger group of numerous 9 colleagues or friends, increasing the possibility of severe and pervasive harassment. 10 D. National Labor Relations Act – An employer’s right to take action against the 11 employee’s conduct related to certain working conditions - whether or not the 12 conduct occurs off-duty - may be limited. For example, under the National Labor 13 Relations Act (NLRA), you cannot monitor or conduct any surveillance of 14 employee union activities, including off-the-job meetings or gatherings. This same 15 rule also applies to any concerted activity (that is, activity workers undertake 16 together, rather than individually) even if no union is involved, as long as 17 employees discuss their work conditions or terms of employment. In addition, 18 certain states - such as California - permit employees to discuss working 19 conditions, such as wages paid, without fear of repercussion. L.C. 232.5. 20 1. NLRB Claims Termination Due to Facebook Comments is Illegal 21 a. Facts: American Medical Response of Connecticut, a large 22 ambulance service provider, terminated an employee after she 23 criticized her boss on Facebook. A supervisor asked the employee 24 to prepare a report addressing a customer complaint about her work, 25 but denied her request for representation from her union during an 26 investigatory interview. Later that day, the employee posted a 27 “negative remark” about her boss on her private Facebook page 28 using her home computer, which drew supportive comments from LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -4-
  5. 5. 1 her co-workers and additional comments from the employee. The 2 Company suspended and later fired the employee, claiming she 3 violated Company policy. The Company claims the employee’s 4 Facebook comments were not the only reason for her termination. 5 b. Disputed Policies – Prohibition against disparaging remarks about 6 the Company or Company supervisors; forbidding employees from 7 depicting the Company in any way on the Internet without the 8 Company’s permission. Federal law protects all employees 9 regardless of union membership to discuss the terms and conditions 10 of employment. 11 c. Action: NLRB investigated the circumstances and claimed that the 12 Company “maintained and enforced an overly broad blogging and 13 Internet posting policy.” It lodged a complaint against the 14 Company. A hearing is scheduled for January 2011. 15 d. Caveat – Watch out for overbroad policies. December 2009 opinion 16 of NLRB General Counsel suggested similar policies were 17 acceptable because they could not reasonably be viewed as 18 prohibiting concerted activities. This suggests NLRB will closely 19 scrutinize policies that potentially limit an employee’s right to 20 discuss terms and condition of employment. 21 2. Hospital Technician Fired Over Facebook Post – A medical technician in 22 Michigan was fired in July for posting on Facebook that she had come “face 23 to face” with a “cop killer”. She had worked on a police officer and the 24 alleged gunman who shot him. The employer terminated her for violating 25 the Health Insurance Portability and Accountability Act’s privacy rules. 26 The employee, who was not a union employee, but was covered by the 27 grievance process, grieved the termination and claimed that she did not 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -5-
  6. 6. 1 mention any identifiable details in her post. The grievance process is not 2 yet finalized. 3 E. Health Insurance Portability and Accountability Act – One of the cases discussed 4 later involves an employee who worked for a hospital who was terminated after 5 posting information about a patient that the hospital contended violated the 6 patient’s rights under HIPAA. 7 F. Breach of Confidentiality Agreement – Employers may discipline employees that 8 are disclosing confidential business information on social networking sites. 9 G. Federal Trade Commission Guidelines – December 2009 guideline creating 10 liability for companies whose employees endorse or give testimonials about the 11 employer’s products on social media sites without disclosure. An employee who 12 posts favorable comments about his/her employer’s products, without disclosing 13 that he/she works for the company, may violate these guidelines. 14 H. Defamation of Co-Workers and Others. 15 I. Trade Libel of Employers and Competitors – intentionally and falsely disparaging 16 the quality of a business. This is a tort in California. 17 J. Lanham Act – Addresses trademark issues and creates liability for “false 18 advertising.” 19 K. Sarbanes-Oxley Act, OSHA & California Labor Code Sections 1102.5-1102.8 – 20 Protect whistleblowing employees. Sarbanes-Oxley Act enacted on July 30, 2002, 21 which set new or enhanced standards for all U.S. public company boards, 22 management and public accounting firms after the wake of scandals in the financial 23 sector. 24 V. Off Duty Conduct Can an Employee Be Disciplined for This? 25 A. Blogging 26 1. Private-sector employees do not have a constitutional right to free speech. 27 One of the more high profile blogging cases involved a Delta Air Lines 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -6-
  7. 7. 1 flight attendant who was suspended after posting provocative poses of 2 herself in her Delta uniform along with her blog. 3 2. Under what situations can an employer discipline an employee for writing 4 details about his or her employment in a blog? What if your employee is 5 revealing trade secret or confidential information otherwise unknown to the 6 public? You probably can take action. To further bolster your ability to 7 terminate in such a situation and prevent future litigation, ensure all 8 employees sign a confidentiality agreement that prohibits disseminating 9 company information in a blog. Keep in mind the NLRB case, though, and 10 the NLRA’s protection of the right of all employees to engage in “concerted 11 activity” including the right to discuss the terms and conditions of their 12 employment. Keep in mind also the California Labor Code provisions with 13 respect to discussing wages, the terms and conditions of employment, 14 working conditions, politics and whistleblowing. 15 B. Drug Testing – If you use drug testing, whether before or during employment, 16 confirm with legal counsel that such testing is permissible in your state. 17 C. Moonlighting – It is not illegal to have more than one full-time job, but have a rule 18 prohibiting employees from having another job that creates a conflict of interest, 19 such as working for a competitor. 20 D. Arrests and Convictions – One of the first questions the employer should ask is 21 how the crime affects the employee’s ability to do his or her job. A bank teller 22 convicted of embezzlement is an easy call. A bank teller who is arrested for 23 driving under the influence is not. You can take action against an employee who is 24 arrested, but it is possible this employee could claim he or she was a victim of 25 disparate impact discrimination as certain studies show that minorities are more 26 likely to be arrested than are nonminorities. 27 E. Engaging in Political Protests – California’s Labor Code Section 1101 and 1102 28 prohibit an employer from taking adverse action against an employee because of LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -7-
  8. 8. 1 his or her political activities or influencing an employee’s political activies. Of 2 course, if the employee took time off to participate in a demonstration, such time 3 could count as an absence, provided it is counted under an attendance policy that 4 the employer consistently imposes on all employees. 5 F. Fraternization with Subordinates – Such policies may be illegal to the extent they 6 seek to regulate an employee’s behavior outside work unless they directly pertain 7 to avoiding certain conflicts of interest in the workplace - such as relationships 8 between supervisors and subordinates. 9 G. Smoking – Some employers, contending that individuals who smoke have higher 10 health insurance claims, have tried to set rules banning the hiring of smokers in 11 their workplaces. Keep in mind that while smoking is neither a protected class nor 12 a disability, this is not permissible in most states based on various “lifestyle 13 discrimination” statutes. California Labor Code 6404.5 requires employers to ban 14 smoking in the workplace. In addition, refusing to hire individuals based on 15 various health-related issues may create claims for disability discrimination. One 16 solution is to offer a wellness program that gives employees incentives, such as 17 lower premiums, for making healthy lifestyle choices. 18 VI. The Essential Language to Include in Your Social-Media Policy. 19 A. Decide where your Company stands on issues first. 20 B. Social Media Policy 21 1. Reasonable Personal Use – Unlikely that a complete ban will work. Best to 22 tell people to use good judgment and that bad judgment can reflect poorly 23 upon you and endanger your job. Be professional. 24 2. All other company policies, such as those that prohibit 25 discrimination/harassment, disclosing confidential information, use of 26 copyrighted material, must be followed. 27 C. Blogging 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -8-
  9. 9. 1 1. Blogging should not be done during working hours or using company 2 resources. 3 2. Employees are not permitted to disclose confidential company information 4 in their blog. 5 3. Employees may not use the company logo or any other company 6 copyrighted material on their blog. 7 4. Employees must state on their blog that the opinions expressed about work- 8 related matters are their own and not the company’s. 9 5. Employees should be reminded to treat others respectfully. Even though the 10 blog is not work-related, they should not make disparaging remarks about 11 colleagues. 12 6. Remind employees that inappropriate blogging activities could result in 13 disciplinary action, up to and including termination. 14 D. Right to Privacy – Written policies contained in employee handbooks should 15 suffice to eliminate privacy expectations employees may have in the use of 16 company equipment, including computers, voice mail and email. Policies should 17 also inform employees that the company will be regularly monitoring any company 18 equipment. Ensure your employee handbook informs employees that despite the 19 use of passwords to access voice mail or e-mail, such items are the property of the 20 employer. Emphasize that employees should have no expectation of privacy in 21 these items and that you can access them with no additional prior warning. 22 1. Eliminate privacy expectations – Quon v. City of Ontario. 23 a. United States Supreme Court case concerning the right to privacy, 24 specifically the extent to which it applies to electronic 25 communications in a government workplace. It was brought in 26 federal district court by an Ontario, California, police officer who 27 had been disciplined by his superiors for sending personal, 28 sometimes sexually explicit, text messages with pagers they had LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -9-
  10. 10. 1 been provided by the department for use on duty. He, and the people 2 he had exchanged messages with, argued that the city had violated 3 their Fourth Amendment rights by reviewing a transcript of the texts 4 provided by the pager company, since the citys investigation had 5 not been prompted by allegations of misconduct. Additionally, they 6 said, a senior officer had said the pager messages themselves would 7 not be audited if the officers reimbursed the city for fees it incurred 8 when they exceeded a monthly character limit. The Court ruled 9 unanimously that the review of the transcript was reasonable, as all 10 text messages sent by the officers while off-duty were redacted, and 11 thus it was legitimately related to the officers work performance and 12 their compliance with department policy. 13 2. Inform employees that the company will be regularly monitoring any 14 company equipment. 15 3. Such items are the property of the employer. 16 4. You can access them with no additional prior warning. 17 5. Computer Fraud and Abuse Act - intended to reduce cracking of computer 18 systems and to address federal computer-related offenses. The Act (codified 19 as 18 U.S.C. § 1030) governs cases with a compelling federal interest, 20 where computers of the federal government or certain financial institutions 21 are involved, where the crime itself is interstate in nature, or where 22 computers are used in interstate and foreign commerce. 23 6. Stored Communications Act - It is not a stand-alone law but forms part of 24 the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 25 2701 to 2712. The SCA addresses voluntary and compelled disclosure of 26 "stored wire and electronic communications and transactional records" held 27 by third-party internet service providers (ISPs). 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -10-
  11. 11. 1 7. Electronic Communications Privacy Act - was enacted by the United States 2 Congress to extend government restrictions on wire taps from telephone 3 calls to include transmissions of electronic data by computer. Specifically, 4 ECPA was an amendment to Title III of the Omnibus Crime Control and 5 Safe Streets Act of 1968 (the Wiretap Statute), which was primarily 6 designed to prevent unauthorized government access to private electronic 7 communications. The ECPA also added new provisions prohibiting access 8 to stored electronic communications, i.e., the Stored Communications 9 Act,18 U.S.C. §§ 2701-12. The ECPA also included so-called pen/trap 10 provisions that permit the tracing of telephone communications. §§ 3121- 11 27. 12 E. Confidential Information 13 1. Advise employees that they are not permitted to disclose confidential 14 information on social networking sites. 15 2. If client information is confidential, advise employees that identifying 16 clients or contacting clients on social networking sites could be a breach of 17 the employee’s confidentiality obligations. 18 3. If an employee poses confidential information on a social networking site, 19 take immediate steps such as sending a cease and desist letter, contacting 20 the website or contacting the new employer to immediately address the 21 violation. 22 F. For All Policies 23 1. Ensure they are enforced. 24 2. Be consistent. 25 3. Exercise common sense, good judgment, responsibility, and staying within 26 legal parameters. 27 VII. What Frontline Managers and Supervisors Need to Know About Policing Social- 28 Networking Sites so They Don’t Legally Misstep. LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -11-
  12. 12. 1 A. Supervisor/Subordinate Relationships 2 1. Issue if subordinate is pressured to accept friend requests or if employee 3 posts information regarding a medical condition. 4 B. Steps to Take When You Receive Off-Duty Conduct Information 5 1. Verify the information, to the extent possible; 6 2. If the off-duty conduct has no bearing on the employee’s job, don’t discuss 7 the situation with the employee; 8 3. Determine if you are permitted to act on the information; 9 4. Ensure you keep the information confidential on a need-to-know basis; 10 5. Be careful about what you say to customers and other employees; 11 6. Weigh your options: keep, suspend or terminate the employee depending 12 on the severity of the infraction and strength of the evidence; and 13 7. Consult legal counsel where appropriate. 14 C. Should We Discipline The Employee For This Conduct? 15 1. Is the conduct lawful? The employer has far less freedom if the employee 16 is engaged in lawful conduct. 17 2. Is the conduct protected? For example, in California, employees are 18 protected from discrimination based on gender identity. Thus, no action 19 could be taken on the basis an employee was cross-dressing outside the 20 workplace. 21 3. Is this conduct protected by any of the California Labor Code provisions? 22 4. Is there a relationship between the conduct and the job? 23 5. Does the conduct cast your business in a negative light? 24 6. If disciplinary action is taken, ensure that similar discipline is imposed on 25 all similar situations. For example, if you can lawfully terminate an 26 employee who is having an extramarital affair, do not terminate all women 27 while not firing men. 28 7. Consult legal counsel before taking any disciplinary action. LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -12-
  13. 13. 1 D. Miscellaneous 2 1. Can references be provided? 3 2. There is no guarantee the information is accurate. It is possible for a person 4 to create a fake profile of another individual. 5 3. Just as the old saying goes, “you can’t believe everything you read,” you 6 can’t believe everything you see. Just because an applicant has a picture of 7 him/herself doing a shot of liquor with a group of friends does not mean he 8 or she has a drinking problem or will be a terrible employee. Such profiles 9 are clearly created for a social, and not professional, purpose. 10 4. It is likely that if you look at a person’s profile, you will uncover a lot of 11 personal information. Some of this information will serve no employment- 12 related purpose or will provide information regarding an applicant or 13 employee that would be better left unknown. For example, MySpace allows 14 individuals to list their sexual orientation. If a person claims that he/she 15 was not hired on the basis of his/her sexual orientation, it is far easier to 16 defend such a claim if you can say you had no idea what the individual’s 17 sexual orientation was. 18 5. Many of the sites have user agreements. Using the sites simply to check up 19 on applicants or employees may violate the terms of agreement of the site if 20 you are not truthful when creating your profile when you register as a user 21 of the site. 22 VIII. How Businesses/Employers May Use/Benefit From Employees’ Use Of Social Media. 23 A. Can enhance employee productivity with business-related social networking that is 24 easy and cheap. 25 B. Keep in mind that employees may reveal information in a blog that could be 26 helpful to the employer for several reasons. An employee may volunteer 27 information about his or her feelings about another employee which would confirm 28 discrimination or harassment. If you uncover this information while reading an LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -13-
  14. 14. 1 employee’s blog, you should investigate. Employees also may reveal reasons for 2 dissatisfaction with the workplace, in which case the employer could attempt to 3 address such concerns to improve employee morale. Such postings could also 4 constitute a protected complaint, and, thus, cannot be the basis of an adverse 5 employment action. 6 C. Consider an approval process if social media will be used. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICESAllen Matkins Leck Gamble Mallory & Natsis LLP 879349.01/LA -14-