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August 22, 2011

This blog has been nominated by LexisNexis as a top 25 Labor and Employment Law Blog for 2011. If you like the blog, please consider voting for it – details below:

Each comment is counted as a vote toward the supported blog. To submit a comment, visitors need to log on to their free LexisNexis Communities account. If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the blog nomination page. The comment period for nominations ends on September 12, 2011. We will then post the Top 25 Labor and Employment Law Blogs of 2011. Thereafter, our community will vote to choose the Top Blog through a Zoomerang survey. I anticipate the final announcement to be made at the end of September.

Also, please consider my co-authors on the Think Before You Click book.

Thank you for consideration and continued reading.

Rob

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What if you were Anthony Weiner’s boss?

June 7, 2011

Rep. Weiner decided to come clean and admit the Tweet and attached picture he sent to a woman was sent by him and of him. According to CNN, Weiner’s communications were not limited to one woman and took place with several over the last three years. I’ll spare you the salacious details and pose the following question: If Weiner worked for you what would you do?

One of the issues that jumps out is whether Weiner improperly used government resources for his communications. He addressed this during his news conference yesterday and indicated he owns his Blackberry and that:

I don’t believe that I used any government resources

If his communications are as prevalent as believed there will be additional disclosures about who was paying for his Blackberry services and whether his social media communications were conducted on platforms other than his Blackberry – i.e. a government computer.

In review of Weiner’s actions, his employer should probably be asking the following questions:

Did Weiner improperly use company resources and time to conduct these communications?
If so, is there a company policy against use of company resources for this type of conduct?
Assuming there is a company social media policy in place, did Weiner violate it?
Did his conduct violate some other type of company policy?
Forget policies for a second, is what he did a fireable offense?

An employer would hope that a senior employee, like a Congressman, would be smart enough to avoid this type of conduct but this is wishful thinking. As a result, it is up to the employer to have in place policies that address this type of conduct and provide the basis to either terminate Weiner or reprimand him.

One thing for sure is we have not heard the last of this story. It will be interesting to see if he goes the route of the sexual addiction defense – how should the employer handle that claim?

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Orwell Part II: Rethinking Personal Privacy

May 24, 2011

Photo courtesy of K. Berberi.

The post from last week raised some interesting question regarding the employer monitoring of employee social media communications. The takeaway – Do we need to rethink the sacrosanct division of our employment versus private lives?

As social media use continues and increases, individuals are creating more and more online content. With more and more content out there, employers and potential employers can learn about the ongoing activities of their employees and job candidates. Before we even reach the issue of whether employer monitoring of prospective or current employees is proper, the first question is do we as a society need to accept the fact that by opting in to social media, we have essentially opted out some of our privacy rights?

As draconian as that may seem, the answer is yes. Once we engage in these types of platforms, we are to some extent losing privacy rights, and what constitutes privacy has fundamentally changed. Employers, business associates, friends, and other voyeurs are going to look at this type of information and in many instances we want them to do so. Why else would we post?

It would seem likely that most people would accept the proposition that the use of social media leads to less privacy. After all, we literally let in some cases hundreds of our nearest and dearest friends view status updates, pictures, and information about our likes and dislikes. But, how much is too much? Where is the line? There isn’t one yet.

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George Orwell and Social Media

May 20, 2011

George Orwell, Author of 1984

Ohio lawyer Jon Hyman provided some insight yesterday on the NLRB’s latest social media case. The short of it is an employer is alleged to have fired five employees because of negative Facebook posts about employment conditions. Others have weighed in on the propriety of the firing, but from my perspective that’s not the interesting part of the story.

The interesting part of the story is how did the employer know about the posts? Did an employee report the communications to management? Did a manager, who was a Facebook friend of the employee, see and report the communication? Was the employer monitoring these communications? Does a manager who observes these types of communications have a duty to report them to the company?

Most employers do not want to create, or at least leave the impression that "big brother" is watching its employees shades of George Orwell’s 1984. That said, assuming an employer can properly review an employee’s tweets or updates, should they?

Maybe (typical lawyer answer). There is no one size fits all answer. There is a difference between being nosy and protecting a business. There are some good reasons to do so: (1) ensure nothing improper is going on in the workplace; (2) monitor morale in the workplace; (3) ensure there are not improper disclosures about company business including customer and confidential information; and (4) monitor the possibility of employee departures. There are also a lot of reasons not to do so, including privacy and other legal ramifications and the "1984 effect" where there is a sense in the workplace that employees are being watched.

As social media communications continue to rise employers are going to have to evaluate whether a formal policy on monitoring social media communications is necessary. Employees also need to think about whether it makes sense to friend or follow their supervisors. There is no right or wrong answer, yet.

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So my IPhone is tracking me?

April 25, 2011

It’s a little disturbing to think that your smart phone is secretly tracking your whereabouts and hiding the information in some discrete place only a computer scientist can find. That appears to be what the iPhone is doing. According to the Wall Street Journal, even turning off the tracking features of an iPhone does not work:

The Journal disabled location services (which are on by default) and immediately recorded the data that had initially been gathered by the phone. The Journal then carried the phone to new locations and observed the data. Over the span of several hours as the phone was moved, it continued to collect location data from new places.

These data included coordinates and time stamps; however, the coordinates were not from the exact locations that the phone traveled, and some of them were several miles away. The phone also didn’t indicate how much time was spent in a given location. Other technology watchers on blogs and message boards online have recorded similar findings.

What are the repercussions of this type of data? Lawyers are historians of sort, in that they are constantly trying to determine the facts leading up to certain key events. Inevitably, there are facts that are disputed and there is contradicting testimony. So, we then look to objective evidence of what actually occurred – calendars, emails, etc. What better evidence then a phone that has documented where a person has been?

Though it may not be entirely accurate (as described above) it could certainly provide some evidence and help to reconstruct the time line of events. It will be interesting to see how Apple handles this issue and I wouldn’t be surprised if other devices were doing the same thing. Nevertheless, get ready for discovery requests that seek that secret file buried in the iPhone that locks down your movements. Is Big Brother watching you?

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Social Media Signals of an Employee Departure

April 21, 2011

A few social media signs that an employee is leaving:

The Obvious – A Linked-In or Facebook profile update that includes the name of a person’s new employer;
The Obvious – An actual description of the new employer or business in a social media profile;
The Obvious – A status update where the employee announces their departure;
The Obvious – A posted link to the new business or venture;
The Obvious – Outright solicitations from the former employee to the employer’s customers;
The Obvious – General solicitations for business or leads;
Subtle – A request for a reference for a website designer or IT help;
Subtle – A request for a reference for someone to put together business cards, stationary, etc. – basically anything someone would need to start up a business;
Subtle – A request for legal advice regarding business entities (the new business will need a corporate form; and
Though not a necessarily social media related, a request from the employee for their employment contract.

The interesting byproduct of social media sites is that many employees now maintain their business contacts on line. A departing employee will alert their contacts that they are leaving. The question then becomes what can or will the employer do to keep their clients/customers?

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Social Media Discovery Made Easy

April 15, 2011

Daniel Schwartz’s latest entry on social media discovery illustrates how easy it is for parties in a lawsuit to obtain someone’s Facebook records:

No longer are companies required to spent countless hours subpoenaing Facebook for the records of the terminated employee who is suing you. Just ask for the Plaintiff to download all of his or her information and then move to compel if he or she doesn’t.

Facebook now includes a feature that allows a user to obtain and print out all of their historical Facebook activity. The reason this is important is because discovery in many instances is limited by cost and a court’s hesitancy to allow parties in a lawsuit to conduct fishing expeditions. Now both the cost and burden of obtaining this information is minimal. Of course, whether the requesting party is on a fishing expedition will remain an issue.

Other social networking sites allow for some historical information. For instance, Twitter allows individuals in most instances to see a person’s previous entries. The point of this is most of these sites may follow the lead of Facebook and make this type of information easily obtainable.

In the context of non-compete and trade secret cases, Plaintiffs are always trying to reconstruct the departure of the employee. Did the employee print out customer information or trade secrets at midnight the night before they resigned? Or did they simply dump the information onto a zip drive for future use? Any circumstantial evidence that an employer can develop is helpful in reconstructing the time line – social media may have that information or evidence.

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Tweets + Coutney Love = Defamation?

January 5, 2011

Let’s face it there is a lot of nastiness out there in cyberspace. For some reason some feel more empowered to say about anything on message boards, social media outlets, and chatrooms. Those statements however can form the basis for a lawsuit. Kurt Cobain widow and Hole lead singer Courtney Love has been sued by a fashion designer over tweets authored by Love that were less than flattering.

Let me state the obvious – statements on Twitter can serve the basis for the defamation suit. There is no social media exception. Additionally, those statements will be seen by many and are easily accessed – this can lead to a large damage claim. While it is a lot easier to rip into someone on Twitter as opposed to in person it may ultimately have the same legal consequences. Let’s be nice out there.

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