Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

Our colleagues at the Technology Law Source Blog advise of a new interesting case concerning the discovery of social media account information in a disability discrimination case. There are two noteworthy pieces to this case. First, the New York federal court judge provides a good roadmap as what information posted on social networking sites is relevant and discoverable in a cases where damages from emotional and physical injury are sought. Second, by ordering plaintiff’s counsel to review the plaintiff’s postings for relevance – not Plaintiff – and produce them, the court offered another option on the always-frustrating issue of how to get social media information from the computer to the requesting counsel’s hand. We will leave the real heavy lifting to the Technology Law Source Blog, but in sum, here is what the court ordered was to be produced and what was not.

Categories of Information to Be Produced

Evidence of Emotional Damages: The court noted that the relationship of routine expressions of mood to a claim for emotional distress damages is tenuous, much more so than the obvious link between posts showing the plaintiff engaging in physical activity that would not be feasible given the plaintiff’s claimed physical injury. With this, the court concluded that routine status updates and/or communications on social media websites were not relevant to the plaintiff’s emotional damages claim, but found that some limited social networking postings should be produced on the emotional damages issue:

Plaintiff must produce any specific references to the emotional distress she claims she suffered or treatment she received in connection with the incidents underlying her … Complaint (e.g., reference sot a diagnosable condition or visits to medical professional). Moreover, in seeking emotional distress damages, Plaintiff has opened the door to discovery into other potential sources/causes of that distress. Thus any postings on social networking websites that refer to an alternative potential stressors must also be produced.

Social Media Evidence of Physical Damages: As for social media posts that would be relevant on the physical damages issue, the court noted “[p]ostings or photographs on social networking websites that reflect physical capabilities inconsistent with a plaintiff’s claimed injury are relevant.” However, because it was unclear whether plaintiff was seeking damages for a physical injury, the court directed the plaintiff to confirm if she was pursing relief for physical damages, and if so, to identify her alleged harm. In the event the plaintiff does, the court promised to address the scope of social networking discovery on physical damages. So, we will have to see what happens.

Social Media Evidence About Allegations in the Complaint: The court found that the defendant-employer’s request for information on “any accounts of the events alleged in plaintiff’s Amended Complaint – contradictory or otherwise…” was relevant and ordered all information that “exists on any social networking accounts maintained by the Plaintiff” to be produced.

Method of Production

On the issue of physical production of social media information, the defendant-employer had asked the plaintiff to sign an authorization for the release of records from the social accounts so it could subpoena the social networking hosting companies directly. Without acknowledging that subpoenaing a social networking company for records is an uphill battle in and of itself, the court did note that there was no reason to go through a third-party provider when plaintiff has access to the requested information herself, and directed that plaintiff’s postings be reviewed for relevant by plaintiff’s “counsel and that Plaintiff’s counsel – not Plaintiff – make a determination regarding the relevant of the postings, keeping in mind the broad scope of discovery contemplated under Rule 26.”

This case provides good roadmap for employers seeking discovery of social media information, not just in structuring interrogatories, but also in providing instructions in those interrogatories about how the information is to be reviewed for relevance and produced.

You can find the full Technology Law Source post and a copy of the court’s decision in Giacchetto v. Patchoque-Medford Union Free School District, here.
 

• Print
• Trackbacks
• Share Link

Our colleagues over at Technology Law Source advise today of an interesting case in which a New Jersey federal court held that a plaintiff in a personal injury lawsuit failed to preserve relevant evidence when he deactivated his Facebook account and failed to reactivate it within fourteen (14) days – which according to Facebook’s terms and conditions renders the account’s contents irretrievable. As a result, the court found that the defendant was entitled to a jury instruction that permits the jury to infer that “the fact that a document was not produced or destroyed is ‘evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.’” In short, the court concluded that the plaintiff’s permanent deactivation of his Facebook account prejudiced the defendant’s ability to refute his claim that he had sustained permanently disabling injuries. Although this is not an employment case, it is easy to see where this issue is likely to come up in workers’ compensation, employment discrimination and other employment law contexts. Because this type of jury instruction can be devastating to a plaintiff’s case, employer’s counsel should be sure to ask for this type of instruction when plaintiffs have deactivated their relevant social media accounts. You can find the full Technology Law Source post and a copy of the court’s decision in Gatto v. United Air Lines, Inc. here.
 

• Print
• Trackbacks
• Share Link

Describing it as a “rather novel issue,” a federal court recently held that a former employee’s public posts on his personal Facebook page did not constitute solicitation of his former co-workers under the terms of his non-solicitation agreement with his former employer. [See Pre-Paid Legal Services, Inc. v. Cahill, No. 12-CV-346, Doc. 31 (Jan. 22, 2013), Report and Recommendation affirmed and adopted, Doc. 32 (Feb. 12, 2013)] The court further noted that invitations sent to former co-workers to join Twitter were not solicitations under the agreement because the invitations did not request the co-workers to “follow” the former employee, they did not contain any information about the new employer, and they were sent by Twitter instead of as targeted email blasts by the former employee.

Though the court found that the former employee’s social networking activities did not constitute solicitation under his agreement, it did enter a preliminary injunction against the former employee based on his direct solicitation of one of his former co-workers through a private in-person meeting and follow up text messages sent to the co-worker. The court entered the injunction until the issues could be presented to an arbitrator pursuant to the parties’ arbitration agreement.

• Print
• Trackbacks
• Share Link

Editors' Note: Colleen Marshall, a Senior Attorney in Porter Wright's Litigation Department, is also a widely-recognized, award-winning news anchor for Columbus' NBC-affiliate, WCMH – 4. In a detailed interview with Porter Wright's Sara Jodka last week, Colleen reports on the use of social media by employers: "You Can't Delete Your Way Out Of Social Media."

As noted in a recent blog and in the news report mentioned above, 21 states have social media privacy legislation pending. But, social media privacy could soon be governed by an act of Congress.

Representative Elliot Engel (D-N.Y.) just introduced H. R. 537, the "Social Networking Online Protection Act" that he says will protect both employees and job applicants from employer efforts to obtain passwords to private social media accounts. Unlike most laws currently being considered on the state level, Engel's bill would also protect passwords to email accounts. The bill is currently in the House Committee on Education and the Workforce, and makes a critical distinction between private accounts and social networking accounts owned by employers but maintained by employees in the course of employment.

Ohio Senate Bill 45, the Social Media Privacy Protection Act, is the most recent state effort to prohibit employers from gaining access to private electronic accounts, such as Facebook. Ohio 15th District Senator Charleta Tavares (D-Columbus) introduced the bill in an effort to prohibit employers, employment agencies, personnel placement services, and labor organizations from requiring an applicant or existing employee to surrender their personal password to a social media account. Senator Tavares says she views any effort to obtain an employee's passwords as an invasion of privacy. Similar bills were passed in 2012 in six states: California, Delaware, Illinois, Maryland, Michigan and New Jersey.

It is vital to note that none of the proposed legislation, either on the federal or state level, would stop employers from monitoring the electronic profile of employees and applicants by viewing publicly available social media. As we discussed previously, social media is broadly accepted as a legitimate tool to screen job applicants and make judgments about character and personality. Additionally, social media passwords would still be accessible through discovery in instances of litigation or during wage and hour disputes. Social media passwords are proving to be invaluable tools for discovery, especially in the labor and employment context, as explained to me by Porter Wright attorney Sara Jodka in a recent television interview.

Lawmakers are grappling with employers' right to know versus employees' right to privacy. And, as previously noted, you can't always delete your way out of the mess you create on social media. Additionally, some employees use their private electronic accounts as networking tools or to communicate with clients and vendors. Courts are currently being asked to decide whether executives or employers own Linked-in accounts that were created on company-owned computers. Disputes over passwords and twitter accounts are also making their way through the courts.

The outcome of these cases will be noted in future blogs because alerts will be sent to my personal phone, that is linked to professional calendars and email accounts owned by two employers, that are also available on my personal iPad, which is linked to my husband's business account that is connected to his phone and the laptop used for his S-Corporation. Wouldn't that make for interesting discovery?

A list of other states considering legislation to restrict employer access to private social media can be found here. 

• Print
• Trackbacks
• Share Link

The summary judgment decision issued on October 31st by Ohio federal district court judge David Dowd in Barnett v. Aultman Hospital contains important reminders for both private employers and their employees. For employers, there is the reminder that they are not bound by the First Amendment's protections for free speech. And for employees: Always remember to confirm that your supervisor actually has been fired before going to Facebook to celebrate.

In January 2011, after receiving the erroneous information that her supervisor had been fired, the plaintiff, Wendy Barnett, a registered nurse at Aultman Hospital sent an email through Facebook to nine current and former hospital employees (and others) that according to the court, read as follows:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

As inevitably happens in this kind of situation, the email was given to the supervisor who sent it on further and eventually an investigation was initiated. When confronted with the email, Ms. Barnett denied that she had typed it and intimated that someone had hacked into her Facebook account. Ms. Barnett was suspended pending the results of the investigation. While Ms. Barnett continued to push her hacking theory, the investigation worked its way back to the employee who originally gave the email to the supervisor. She confirmed that Ms. Barnett had admitted to sending the "celebratory" email. Another employee came forward and offered to show the investigator text messages she had received from Ms. Barnett. Although she was unable to retrieve the text messages, she confirmed that they said something along the lines of, "The witch is dead… Lisa got fired."

As the investigation proceeded, Ms. Barnett contacted the hospital's employee responsible for processing leaves of absences for FMLA paperwork. Meanwhile, apparently unaware of the FMLA request, the investigator and the hospital's vice president of human resources decided to terminate Ms. Barnett for dishonesty pursuant to its employee handbook. Plaintiff was specifically told she was not being terminated because of the content of the email, but rather because she had repeatedly lied about sending it. Ms. Barnett was given the opportunity to resign, which she accepted, but still had the audacity to maintain the lie about sending the email. (She later came clean at her deposition.)

Ms. Barnett's subsequent lawsuit against the hospital claimed that she was terminated in violation of Ohio's public policy protecting freedom of speech, and for FMLA interference and retaliation. The court had no trouble dispensing with each of these claims. First, the court noted that there is no clear public policy forbidding private actors from restricting free speech. Instead, the First Amendment guarantee of freedom of speech is a restraint on governmental actors only. Therefore, the court concluded that the guarantees of freedom of speech under the federal and state constitutions cannot provide the basis for a public policy exception in a wrongful discharge claim in the absence of state action.

Moving on to the FMLA claims, the court noted that Ms. Barnett's only claimed interference was that the hospital failed to provide her with notice as to whether the leave requested would be counted as FMLA. Of course, as the court also commented, the period of time had not expired as of the date that Ms. Barnett offered her resignation. Furthermore, the court noted that Ms. Barnett was not harmed by any failure to provide her the requisite notice because she had already been terminated.

Finally, the court also disposed of Ms. Barnett's retaliation claim based on the evidence presented that demonstrated that the decision to terminate her was made without any knowledge that she was attempting to pursue an FMLA claim. In addition, relying on a Sixth Circuit decision in Gipson v. Vought Aircraft Industries, Inc., the court held that an employee may not insulate herself from termination by "opportunistically invoking the FMLA."

Though the result of this case was rather predictable to everyone other than apparently Ms. Barnett and her counsel, it probably does bear emphasizing that:

1. An employee of a private employer has no automatic right to freedom of speech.
2. In this case, the hospital was best served by terminating Ms. Barnett based on her dishonesty. This decision probably helped avoid disputes over whether other similarly situated employees had not been terminated over similar comments about their supervisor. (No, I don't think that the email would have been protected by Section 7 of the NLRA, had Ms. Barnett filed an unfair labor practice charge.)
3. Offering an employee the opportunity to resign rather than accept being terminated does not always avoid a lawsuit, which can be based on a constructive discharge theory.
4. There is nothing that is beyond the capabilities of some employees.

• Print
• Trackbacks
• Share Link

Last week, another ALJ for the National Labor Relations Board issued a decision on a case involving an employee claim that he was unlawfully fired for comments made on a personal Facebook page. Though the ALJ upheld the employee's termination, he also concluded that multiple employer policies were impermissibly over broad.

In Knauz BMW,  the charging party, a salesman at a BMW dealership, posted two comments regarding his employer on the same day. The first post expressed concerns he had expressed at work regarding the inadequacy of food being served to customers at a sales event and included photos of the event. The second related to an incident that occurred at a sister dealership in which he posted a photo of an accident that occurred when a salesperson apparently left a 13 year old behind the wheel of a vehicle. Both posts were delivered in a sarcastic mocking tone. After a meeting between management and the charging party at which both posts were discussed, the charging party was terminated.

• Print
• Trackbacks
• Share Link

On July 7 and 19, 2011, the NLRB's Office of the General Counsel issued a series of three advice memoranda recommending the dismissal of unfair labor practice charges filed by employees who were disciplined for comments made on Facebook. In each of these charges, the employee alleged that their discipline violated Section 8(a)(1) of the National Labor Relations Act, but in each the NLRB's General Counsel's Office concluded that there was insufficient evidence that the employee engaged in concerted activity.

• Print
• Trackbacks
• Share Link

On November 2, 2010, the NLRB issued a press release reporting that its Hartford, Connecticut, regional office had issued a Complaint alleging that American Medical Response of Connecticut, Inc., (“AMR”) had published an overly broad blogging and Internet posting policy that violated employee Section 7 rights, and then illegally fired an employee for negative posts about a supervisor.

As described in the Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. Such provisions, according to the NLRB’s Complaint, constitute a violation of 8(a)(1) of the National Labor Relations Act because they interfere with employees' right to engage in protected concerted activity under Section 7 of the NLRA. (The NLRB and courts typically interpret Section 7 as protecting employees’ right to discuss the terms and conditions of their employment with other employees or even non-employees.)  The NLRB also alleged that the employer illegally fired an employee pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.

• Print
• Comments
• Trackbacks
• Share Link

Late last month, we reported on some employment terminations in the health care industry that were prompted by some ill-advised Facebook postings.  Earlier this week, Dan Schwartz of the Connecticut Employment Law Blog noted another interesting situation brewing in his home state in the education field -- where a school superintendent faces potential termination of employment for postings to his Facebook page, which only his “friends” could access.  

In other words, the discussion was not open to be seen on Facebook by the general public.  Apparently, the superintendent engaged in an exchange with his “friends” about his first day on the job, which according to news sources, included sleeping until 10:00 a.m., browsing the Internet, and counseling an employee about either retiring or facing termination.   Unfortunately, one of the superintendent’s “friends” apparently forwarded the exchange to the school board, which was none too pleased. 

Noting that “[i]t seems that in all of the frenzy over social media, we are losing a bit of perspective,” Schwartz asks a number of valid questions:

Should the fact that someone's Facebook page is set to the highest "privacy" settings make a difference in how we look at issues of employee use of social media?

Are we overreacting to every Facebook post? 

What is the real difference between a posting like this and say, an e-mail sent out to friends?

What about the "water cooler" talk?

Is the fact that it is written down somewhere that significant?

As we suggested about a year ago when reporting on the Pietrylo v. Hillstone Restaurant Group lawsuit, each situation must be evaluated on its own merits.  While the virtual nature of Facebook posts certainly risks wider distribution than chitchat around the water cooler, employers need to ask themselves whether the employee intended through his or her privacy settings to place appropriate limits on the distribution of the post.  Once that context is evaluated, the employer can then take the next step of determining whether the post’s actual content really risks damaging the employer’s substantial interests or violates substantial company policies.  

In Pietrylo, you will recall, supervisory employees gained access to a private MySpace account on which employees apparently were saying unflattering things about their bosses.  Setting aside for the moment  the question of whether the supervisors had authorization to access the site,  there likely are few circumstances where an employer would have substantial interests justifying a termination decision when the discussion was restricted to the employees themselves  -- discriminatory or harassing comments being a notable exception. 

In Connecticut, by contrast, the alleged postings were made by the superintendent of schools -- not by a group of restaurant servers and cooks; the intended distribution, depending on how extensive his list of friends was, had potential to reach members of the local voting public instead of being contained within the workforce; and the content of the discussion was not entirely benign.  Where all of this fits in the spectrum between trivial and cataclysmic, I don’t know. But it is important that employers engage in this kind of analysis before pulling the trigger on a termination whenever an employee posts something on a social media site.

• Print
• Comments
• Trackbacks
• Share Link

Facebook has announced that it is implementing new privacy controls beginning today that will give its more than 350 million users more control over the privacy of what they post to their Facebook pages. As reported, Facebook will now give its users the ability to set up lists that, for instance, can place their "friends" into separate groups such as family, high school buddies, and work friends and to choose who to share content with each time they post something. As a result, people easily should be able to choose to share family photos with only family and close friends and other less wholesome postings with whomever they choose. Of course, Facebook also will give users the option of choosing to share a post with "Everyone."

From an employment standpoint, these privacy control changes could make it more difficult for those employers who like to use Facebook as a surveillance tool. For instance, the employee who requested bereavement leave while he actually was on a hunting trip should be able to choose to post comments or photos without sharing them with the boss or co-workers who happen to be Facebook "friends." On the other hand, someone who posts a comment that is disparaging of or detrimental to his employer will have a hard time arguing that the comment was not intended to be widely distributed if he chose to share it with "Everyone" when he posted it.

As with all things social media, only time will tell what impact these changes will have on what we post and what is available for us to see on Facebook.

• Print
• Comments
• Trackbacks
• Share Link

CBC News in Canada is reporting that a Canadian long-term disability insurance carrier recently terminated the long-term disability benefits a Quebec woman was receiving for "major depression" after photos she posted on her Facebook page showed her "having a good time at a Chippendales bar show, at her birthday party and on a sun holiday." According to the CBC, the woman, 29-year-old Nathalie Blanchard, contends that her doctor recommended that she try "to have fun, including nights out at her local bar with friends and short getaways to sun destinations, as a way to forget her problems." Nevertheless, Manulife, the insurance carrier, which acknowledges that it uses Facebook for investigation purposes, terminated her long-term disability benefits.

Though anecdotal news flashes like this one may embolden employers to use Facebook and other social media to investigate employee activity while they are on a medical leave of absence or workers' compensation leave, caution is still necessary. For instance, Manulife confirmed that ít "would not deny or terminate a valid claim solely based on information published on websites such as Facebook." Presumably, Manulife forwarded Ms. Blanchard's Facebook photos and perhaps other evidence to a medical professional for an opinion as to whether the photos evidenced Ms. Blanchard's ability to return to work. Similarly, employers should resist the urge to make their own medical judgments as to an employee's ability to work when they obtain this kind of photographic or video evidence.

In addition, Ms. Blanchard apparently contends that she kept her Facebook photos private and does not understand how the insurance carrier obtained them. As I have preached before on this blog, employers should not circumvent an employee's Facebook privacy settings in order to investigate alleged misconduct. In this instance, a co-worker or other Facebook "friend" of Ms. Blanchard likely dropped the dime on her. When faced with this kind of evidence, employers and their insurance carriers would be wise to consider the motivations of the person providing the evidence and to conduct its own investigation. If employers avoid the temptation to immediately jump to conclusions, they will find that Facebook can be their "friend" when conducting investigations of workers' compensation or medical leave fraud.

• Print
• Comments
• Trackbacks
• Share Link