Transcript Slide 1

PRIVACY, SOCIAL MEDIA, AND
EMPLOYMENT LAW IN THE
WORKPLACE
July 20, 2011
M. Robin Repass, Esq.
1099 18th Street, Suite 2150, Denver, CO 80202
Phone: (303) 390-0024 • Fax: (303) 390-0177
E-mail: [email protected] • www.jacksonkelly.com
TABLE OF CONTENTS
A.
INTRODUCTION TO SOCIAL NETWORKING AND
ELECTRONIC COMMUNICATIONS
B.
OVERVIEW AND DESCRIPTION OF POPULAR SOCIAL
NETWORKING SITES
C.
ORIGINS OF PRIVACY LAWS IMPACTING THE WORKPLACE
D.
ISSUES ARISING FROM MONITORING EMPLOYEES
E.
BEST PRACTICE ADVICE
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INTRODUCTION TO SOCIAL NETWORKING
AND ELECTRONIC COMMUNICATIONS
__________________________________
• 35 percent of adult Internet users and 66
percent of Internet users under age 35 have a
social networking site
• 400 million active users on Facebook
• 20 billionth tweet on Twitter
• 70 percent of employees use Internet at work for
“business reasons”
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SCREENING TOOL FOR JOB
APPLICANTS
• 35 percent of hiring managers
“Google” applicants
• 23 percent check social networking
sites
• 50 percent of these searches result in
job rejections
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OVERVIEW OF POPULAR SOCIAL
NETWORKING SITES
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Facebook
MySpace
Twitter
LinkedIn
MeettheBoss
Plaxo
Blogs
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OVERVIEW OF POPULAR SOCIAL
NETWORKING SITES
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Facebook
Average person spends 55 minutes per day on
Facebook
Facebook has an older and more professional
customer base than MySpace
Connections can be formed around “networks,”
with associated workplaces, etc.
Users can form organizations around cultural
or ethnic identification
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PROBLEM ISSUE
Employer will potentially have access to
information such as sexual preference,
cultural and religious identification.
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ORIGINS OF PRIVACY LAWS
IMPACTING THE WORKPLACE
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Fourth Amendment
Common Law
Electronic Communications Act of 1986
Federal Stored Communications Act
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FOURTH AMENDMENT
Protects the “right of the people to be
secure in their persons, houses, papers
and effects, against unreasonable
searches and seizures.”
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FOURTH AMENDMENT IN THE
WORKPLACE
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FOURTH AMENDMENT IN THE
WORKPLACE – Public Employees
• Limits the right of public employers
regarding interference with the privacy of
employees
• Fourth Amendment does not extend to
private employees (private employer’s
actions do not constitute state actions)
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EVOLUTION: O’Connor v.
Ortega
• U.S. Supreme Court first recognized Fourth
Amendment privacy protection in pre-Internet
1987.
• Employee’s privacy expectations could be
shaped and restricted by the employer’s policies
and practices.
• HELD: employee had a legitimate expectation
of privacy in his desk and file cabinets.
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GOVERNMENT EMPLOYER
• Retains right to perform search that serves its
interests in promoting efficient operations in the
workplace
• Government employers may restrict employee’s
expectation of privacy by creating clear policies
informing employees that they do not have an
expectation of privacy, and that their computers
may be searched.
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CITY OF ONTARIO V. QUON (2010)
• ISSUE: Whether a public employee (a police
officer and a SWAT team member) stated a
claim for violation of Fourth Amendment rights
where the public employer (a police
department), reviewed texts sent and received
by Quon on his department issued pager.
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CITY OF ONTARIO V. QUON (2010)
MOTIVATION: City claimed it had interest in
determining whether it was paying for
extensive personal communication via the
phone and text messaging plan used by
the SWAT team and to gauge efficiency of
SWAT team in responding to emergencies.
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PROBLEM . . .
• Affair revealed between a SWAT team
member and another City employee
• Personal conversations between other
SWAT team members and City employees
revealed
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IMPORTANCE OF POLICIES
• HELD: The City’s policies gave
reasonable notice to employees that their
pagers could be searched – no Fourth
Amendment violation.
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QUON in private employment
matters:
Holmes v. Petrovich Development Company,
LLC (11th Cir. 2011)
Claims: sexual harassment, violation of
right to privacy, intentional infliction of
emotional distress
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Holmes v. Petrovich Development
Company, LLC (11th Cir. 2011)
Claims central to “adverse employment action”
and retaliation:
Plaintiff claimed supervisor subjected her to
negative comments about pregnancy, then
retaliated by forwarding her sensitive personal
information to others in the office with
information about prior miscarriages,
amniocentesis, and potential termination of
pregnancy.
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Holmes v. Petrovich Development
Company, LLC (11th Cir. 2011)
HELD: no adverse employment action,
because a reasonable person would have
talked with the boss, expressed dismay at
actions, given him an opportunity to
explain or apologize, and wait to see if
conditions changed after air cleared.
Instead, employee chose to quite.
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Holmes v. Petrovich Development
Company, LLC – ATTORNEY/CLIENT
PRIVILEGE
ISSUE: Were emails sent by employee to
her attorney on the company computer
protected by attorney/client privilege?
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ATTORNEY/CLIENT PRIVILEGE
• HELD: No. Plaintiff waived attorney client
privilege when she knowingly
communicated with her counsel on
company’s email system after being
advised that the emails were not private.
• Attorney-client privilege does not
extend to emails which are not private.
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HOME EMAIL V. COMPANY EMAIL
• Had Holmes emailed her attorney from her
home computer, this would have been a
privileged communication.
• Instead, she used company computer after
being expressly advised it was not private.
• Would also have been different if use of email
account was not clearly covered by the
company’s policy.
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DOES PASSWORD PROTECTION MAKE A
DIFFERENCE?
• Holmes: employee believed that her personal email
would be private due to password used to utilize
company’s computer, and she deleted the emails after
they were sent
• Court: “belief was unreasonable because she was
warned that the company would monitor email to ensure
employees were complying with office policy not to use
company computers for personal matters AND told she
had no reasonable expectation of privacy in email
message”
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OPPOSITE VIEW
Nat’l Econ. Research Assoc. v. Evans (Mass. 2006)
• HELD: employee did not waive attorney-client privilege
for personal emails sent to his attorney and later
accessed by his employer.
• Difference here: emails sent through employee’s work
computer, but used his personal email account. The
employee did not save them on company email system.
He took adequate steps to protect the confidentiality of
his information.
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TAKEAWAY
Every employer, whether public or private,
must have clearly drafted policies giving
employees notice that they have no
expectation of privacy in company
electronic equipment, whether this be in
emails, phone log details or text
messages.
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FEDERAL STATUTES
• Electronic Communications Privacy Act of
1986
• Federal Stored Communications Act
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ELECTRONIC COMMUNICATIONS
PRIVACY ACT OF 1986
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Primary federal law addressing privacy
concerns is the ECPA.
Exceptions interpreted to mean that if
employer maintains its own email system and
assumes “provider status,” employer is allowed
to retrieve all stored email messages.
Two types of communications:
(1) Messages in transit (happens in seconds – limited
opportunity for interception)
(2) Stored messages (most typical work scenario)
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Federal Stored Communications Act
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“Wiretapping Act”
criminal offense to intentionally:
(1)
access, without authorization, a
facility through which an electronic
communication service is provided; or
(2)
exceed an authorization to access that
facility.
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Federal Stored Communications Act
IMPORTANCE OF POLICIES
If handbook makes it clear that employer
authorized to access stored electronic
communications, there can be no violation.
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CASELAW EXAMPLE UNDER
SCA AND ECPA
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Konop v. Hawaiian Airlines, Inc., (9th Cir. 2002)
Pilot’s website criticized airline officials and the union
Management expressly excluded
VP made another employee give him access
VP told union about content on website
No claim under Wiretap Act because no “interception” by
VP logging onto site
BUT – lower court erred in dismissing pilot’s SCA claim
because VP was not a “user” of the website.
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TAKEAWAY
Do not gain access to employee’s website
by either receiving private information
through another “friend,” or by going
through a person on the employee’s
“friends” list.
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ISSUES ARISING FROM
MONITORING EMPLOYEES
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ISSUES ARISING FROM
MONITORING EMPLOYEES
PROS AND CONS
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REASONS TO MONITOR
Increasing employee productivity and
preventing hostile work environment
claims
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MONITORING
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Drug-testing
Closed-circuit video monitoring
Internet monitoring
Email monitoring
Instant message monitoring
Phone monitoring
Location monitoring
Keystroke logging
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HOSTILE WORK ENVIRONMENT
Address security risks, investigate and prevent sexual
harassment
Policies against viewing offensive materials in
workplaces
Best Practice: acceptable Internet use policy which
considers ramifications of discrimination, privacy,
confidentiality and privilege issues
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Positive Treatment of Monitoring
Smyth v. Pillsbury (E.D. Pa. 1996): Upheld
firing of employee who transmitted
inappropriate emails; Held: Company’s
interest in preventing inappropriate and
unprofessional comments or even illegal
activity over email outweighs employee’s
privacy interests.
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Positive Treatment of Monitoring
Public Employees
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Urofsky v. Gilmore (4th Cir. 2000): speech
of public employees may be restricted
consistently with the First Amendment
where the issue concerns accessing
sexually explicit materials on computers
owned by the state.
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PROBLEMS WITH MONITORING
• Screening Applicants: if topics are off limits
during interview, also off limits to access social
networking pages
• Privacy Concerns: if employee has taken
reasonable steps to keep information private
(i.e. settings on Facebook pages), employer
infringes privacy interest if employee’s interest in
keeping information private outweighs
employer’s interest in obtaining the information.
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HOT TOPIC – Interference in
Union Organizing Activities or
“Concerted Actions”
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NLRB VIEW
Monitoring employee’s social networking
activity has the potential of creating a
chilling effect on the employees’
communications regarding the terms and
conditions of their employment, in violation
of the NLRA at 29 U.S.C. §157.
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Evolution of Decisions
Pratt v. Whitney (1998): NLRB in advice memorandum
found computer network a “work area.”
Endicott Interconnect Technologies, Inc. (2005): NLRB
found employee’s posting on a public-forum website
favoring union representation and criticizing recent
company management was protected conduct under the
NLRA. Held: Company violated NLRA by threatening,
then discharging, employee for statements on website.
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Well written policy saved the day in . . .
The Guard Publishing Company d/b/a The
Register-Guard (2007): NLRB found that
the company’s policy prohibited
employees from using company email for
“non-job-related solicitations” and did not
violate §8(a)(1) of the NLRA.
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Other important observations in
Register-Guard:
• NLRB compared email to other employer-owned
property, such as telephones and bulletin boards.
• NLRB found that employees have no statutory right to
use employer’s equipment or media, SO LONG AS the
restrictions imposed by the employer are nondiscriminatory.
• Employees have no statutory right to use company email
systems for Section 7 purposes under the NLRA, which
gives employees the right to form, join or assist labor
organizations.
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BUT IT DIDN’T STOP THERE . . .
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• “Looks like I’ll be getting some time off.
Love how the company allows a
[psychiatric patient] to be a supervisor.”
• “My supervisor is being a d***.”
• “My supervisor is scum.”
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American Medical Response
(2010 – settled 2011)
• First time NLRB issued complaint that employer engaged in ULP for
firing employee about derogatory posts made about supervisor on
Facebook.
• Employee member of International Brotherhood of Teamsters Local
443 Union – requested union official be present during investigatory
interview re: two behavioral complaints from patients in medical
facility.
• The request was denied by her supervisor. NLRB alleges that
employee then engaged in “concerted activities with other
employees,” in criticizing her supervisor on Facebook.
• Handbook excerpt: “Employees are prohibited from making
disparaging, discriminatory or defamatory comments when
discussing the Company or the employee’s superior, co-workers
and/or other competitors.”
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Hispanics United of Buffalo
(May 9, 2011)
• Non-profit, provides social services to low-income
citizens
• Five employees discharged after they criticized working
conditions (work load and staffing issues) on Facebook
• Company discharged employees, claiming their posts
constituted harassment of an employee mentioned in the
post
• Non-union: relying on “concerted activity” within Section
7 of NLRA because conversation involved terms and
conditions of employment
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KNAUZ BMW (May 24, 2011)
• NLRB alleges unlawful termination of an
employee for posting photos and comments on
Facebook that were critical of dealership
• Unhappy with quality of food and beverages at a
BMW promotion event
• Again non-union: “concerted activity” because it
involved a discussion among employees about
the terms and conditions of their employment
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BEST PRACTICE ADVISE: CREATE
WRITTEN ACCEPTABLE USE POLICIES
(“AUP”)
By creating and consistently applying
policies informing employees that their use
of corporate networks, including email
access, can be monitored, the employee
has waived his/her right to privacy in
communications made on the company’s
network.
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Basic Contents
• Urge employee to take work-related complaints to HR
before blogging or posting about them
• Clarify that discipline will be imposed, up to and including
termination, if an employee misuses social networking
sites relating to employment or other employees in the
context of employment
• Establish a reporting procedure for suspected violations
and also reiterate that company’s anti-discrimination
policies also apply to electronic communications
• Remind employees that computer and email systems are
not private and that company may monitor computer,
email and/or text messaging usage
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Basic Contents
• Require employees to sign a written acknowledgment
form affirming that they have read, understand and will
abide by the company’s acceptable use policy
• Prohibit unauthorized transmission of corporate trade
secrets and other confidential information
• Define discipline to be imposed for transmitting or
receiving communications containing pornographic,
derogatory, defamatory, sexual, racist or harassing
statements
• Define whether email is automatically deleted after a
specific time period
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Basic Contents
• Define whether online shopping, surfing,
gambling or stock trading is allowed
• Describe when and how the Internet may be
used during the workday and/or after work hours
on company equipment
• Define penalties for violating the AUP
• Enforce this policy consistently and
indiscriminately
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