Delaware Employment Law Blog

Employers are struggling to develop effective social-media policies. And for good reason—it can be hard to draft a policy that is intended to address issues that are unfamiliar and that arise from technology that many employers don’t quite understand.  Which may explain why some employers have been making news headlines with their Facebook and Twitter policies.

One of the reasons that employers implement (and should implement) social-media policies is to help mitigate the risk of liability.  When given an unrestricted forum in which to “express” oneself, people often write things that they shouldn’t.  The anonymity of the Internet makes this risk all the more real because things we would never say to another person in conversation become much easier to “say” online. The fact that our online expression comes in the form of the written word further exacerbates the potential problem because what we write online is as permanent as permanent can be.

This “perfect storm” of potential liability came to fruition with the postings of NFL player, Larry Johnson, who, at the time, played for the K.C. Chiefs.  First, Johnson took on Chiefs Head Coach Haley, tweeting about what he perceived to be Haley’s lack of credentials.  If there’s one thing we should know by now about social media, it’s that tweeting bad things about your boss is generally a bad idea.

But, for Johnson, it got worse.  One of his followers engaged Johnson in a series of tweets, heckling him about his comments. The heckler apparently was effective—getting Johnson so agitated that he tweeted back with a gay slur.  As a result, he was suspended and fined $213,000, the amount he would have been paid had he not been sidelined for his inappropriate conduct. 

Johnson was released from his contract with the Chiefs on November 9, making him one of the first professional athletes to be fired for his Twitter activity.  He was later picked up by the Bengals.

The big-picture lesson here is that employers must consider whether they need a social-media policy.  But the real take-away is this: if you have employees who are in the public eye (for whatever reason), they may need to be subject to stricter or at least more specific rules for their social-media activity.  The larger the audience, the greater the potential harm when an employee missteps and conducts himself in a way that does not reflect the organization’s views or culture. 

Hat tip to Rob Radcliff, whose Texas blawg, Smooth Transitions, made my list of 2009 Top 100 employment law blogs.

Thanks to Facebook, a Canadian insurance company has revoked the disability benefits of a woman who had been out of work for more than a year and a half due to depression.  Former IBM employee Nathalie Blanchard, 29, claims that she called her insurance company when her monthly sick-leave checks stopped coming and was told that she was deemed as able to return to work based on what it had found on her Facebook page. 

The alleged smoking-gun evidence was Blanchard’s Facebook page, which Blanchard insists was set as private.  She admits, though, that she had posted photos of herself on holiday at the beach and at a Chippendale’s show.  But, she said, she had gone on trips to exotic destinations and partied it up at local bars only because of doctor’s orders.  Her doctor had advised her to take short getaways to sunny locales to escape her problems.

But, she said, those getaways were no more than band-aids on a far bigger problem. She’s still depressed, she claimed.  “In the moment, I’m happy, but before and after I have the same problems,” she said.  Which is why she’s so confused about why the insurance company has cut off her benefits. 

Follow me on Twitter at @MollyDiBi or read these related posts:

"Unfriend," according to the New Oxford American Dictionary, is the word of the year. According to CNN.com:

"Unfriend" beat out a tech-heavy field that included "netbook," "hashtag" and "sexting" to take the annual honor.

"It has both currency and potential longevity," said Christine Lindberg, a language researcher for Oxford's U.S. dictionary program. "In the online social networking context, its meaning is understood, so its adoption as a modern verb form makes this an interesting choice for Word of the Year."

Oxford defines "unfriend," a verb, thusly: "To remove someone as a 'friend' on a social networking site such as Facebook."

If this doesn't solidify the place of social media in modern culture, I don't know what would. It's just one more reason why employers are best advised to stop running and face the social-media-music. 

See also:

Social Media Is Here to Stay: Time to Start that Workplace Policy

Adria B.  Martinelli will be speaking about how to accommodate workers who are caregivers and the workplace issues that commonly arise with dementia.  The audio conference is 90 minutes and will cover:

• Helpful ideas for accommodating an affected employee, including EEOC recommendations: reducing hours and responsibilities, having co-workers act as support, and more
• Laws that come into play, and how to meet your obligations under ADA and FMLA
• Sample HR policies that can reduce the burden for your caregiver employees
• What savvy employers are doing to minimize the problem of distracted and absent employees with caregiving responsibilities
• Signs or behavior that could indicate your employee has Alzheimer's or other dementia
• Options for work duties you can legally provide employees with dementia
• And more...

HR Hero is hosting the event and you can learn more or register at the HR Hero website.

Careerbuilder has a new survey about some of the “most memorable requests” made by employees via the office suggestion box.  As you may guess, the requests were a bit, well, odd.  Here are a few samplers:

• Allow people to change clothes in their cubicles
• Put beer in the vending machine
• Replace the employee’s desk with a futon so he could lay down and work
• Institute “bikini Fridays”
• Permit family medical leave for jail time

I’m certain that I’ve heard odder requests but I’ll save that story for another day.

Follow me on Twitter @MollyDiBi

If you're using Twitter to search for talented job candidates, you're not alone. The popular microblog received more than 23 million unique visitors just this September and more and more employers are utilizing it in their talent-acquisition efforts.

I'll be teaching a webinar on December 16 for HR Hero, where I'll focus on how Twitter can improve your organization's recruiting, branding, and engagement strategies, and how to avoid the legal issues associated with using microblogs in the workplace.

The seminar, called Recruiting in 140 Characters: Everything HR Needs to Know About Twitter, is 90 minutes and will be conducted via live webinar.  I'll show participants step-by-step instructions for setting up a Twitter account, so you can begin "tweeting" during this live event! You'll get live interactive guidance, so you can learn:

• How to make a tweet compelling enough to attract the most desirable candidates
• Techniques to get followers who will help spread your message and brand
• How you can stay on the cutting edge in your industry by following the right people
• How to find relevant content using hash tags and search functions
• Twitter manners: the dos and don’ts of tweeting
• How to locate passive job candidates online
• Blogging techniques to build brand recognition the RIGHT way and how to make your organization the employer of choice
• How to use Twitter to keep your all-star employees passionate and enthusiastic about their work
• The legal mistakes often made when using Twitter at work, and how you can avoid them
• Special tips and tricks to make sure your blog postings are relevant and how to make tweeting a breeze

Registration is available at the HR Hero website.  Hope to "see" you on December 16!

And, if you're in the Chicago area and want to learn more about social media for employers, check out the upcoming HR Social Media Summit, on December 2-4.  Dec. 2-4: Social Media & HR Summit (Chicago, IL)

Until then, you can follow me on Twitter at @MollyDiBi . . . .

Ah, Facebook in the courtroom. It's a relationship that appears to have a long and tumultuous future ahead.

In Wilgus v. F/V Sirius, Inc., (decision below), the jury returned a verdict for the defense and against the plaintiffs, who alleged personal-injury and wrongful-death claims.  Four days after the verdict was returned, the plaintiff's lawyer received an e-mail from one of the jurors, which stated:

[D]id you know your plaintiff[s] advocated the use of mushroom and week smoking, and binge drinking all over the internet? . . . It['s] really sad what happened but with all the work going into this don['t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I'm just trying to help.[]  [If you want more info and insight [I] will help you.

The lawyer filed a notice of juror contact and filed a Motion to Conduct Post-Trial Voir Dire of the juror. The judge had explicitly told the jury "more than once" not to do Internet research about the case or the parties but the e-mail implied that the author may have done just that. 

During the judge's investigation, the judge determined that a post-verdict response to a juror questionnaire stated that one of the plaintiffs "was a party drug [illegible] animal" and that the handwriting on the response was similar to the handwriting on the pre-jury selection survey that the e-mailing juror had completed.

The jury foreperson did not recall any discussion of material from the Internet during deliberations. The foreperson did, however, remember that someone on the jury had wondered aloud whether the plaintiffs had Facebook pages but said that "nothing else came of that."  The judge asked the juror what information the juror had found on the Internet, to which he answered:

After the jury duty was over and the case was decided, I did the research that you said we couldn't do during the case.

He found the information about two of the plaintiffs on Facebook.  He gained access to those plaintiffs' Facebook pages by sending them friend requests, which the plaintiffs apparently accepted.  On their Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail. 

The juror insisted that he found the pictures "a day or two after . . . it was all over" and that he had not otherwise contacted or communicated with the plaintiffs. He denied that the information he'd learned online had ever been discussed during deliberations.

The court determined that there was no evidence to conclude that the juror discovered the Facebook pictures (or any other information from the Internet) during the trial or deliberations, and denied the plaintiffs' motion for a new trial, finding no evidence that juror misconduct actually occurred.

Wilgus v. FV Sirius, Inc. (D. Me. 2009) Order Denying Motion for New Trial Due to Juror Misconduct

For more on the relationship of social media and the courts, see:

Use Facebook, Get Arrested. Use Twitter, Get Fired.

In Case It's Not Obvious: Don't Text Witnesses During Trial

Michigan's Supreme Court Bans Jury Members from Mid-Trial Twitter Use

More Stories from the Facebook Frontier

Ethical Implications of "Friend-ing" a Witness on Facebook

Discoverability of Facebook Profiles

Searching MySpace and Facebook for Job Applicants and . . . Judges?

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

Our seminar today on social media for employers was great. Thanks to everyone who attended (live and online with apologies for the short interruption in audio to those online). As promised, the handout is posted below for downloading.  As is my standard, the handout is not a copy of my slides but, instead, is intended to be a reference for future use and deals with some to the resources and statistics that I touched on but did not go into great detail on. 

There are, though, some noteworthy statistics from the presentation that stood out, so I'll post them later today in a separate post.  Again, thanks for attending and I'm looking forward to hearing about all of the great ways that everyone puts social media to work for their organizations, so keep me posted!

Social Media for Employers: Presentation Handout

A reported 4.1 billion text messages are sent each day in the U.S., according to CITA, the International Association for the Wireless Telecommunications Industry. The popularity of text messaging or "texting" has seen explosive growth in the past few years.  But are employers really in touch with this tool and its potential legal risks? 

One employer has.  Alachua County, Florida, has banned County employees from sending text messages for County business.  The prohibition was announced after County official  became concerned that text messages constituted public records that are subject to a FOIA-type request.  FOIA laws require public entities to produce official records when a proper request is made. 

Textual harassment has gotten quite a bit of press lately, and for good reason.  According to the National Conference of State Legislatures, 46 states, including Delaware, currently have an electronic harassment or "cyberstalking" law. 

The Delaware law provides that a person is guilty of criminal harassment when, with the intent to harass, annoy, or alarm another, the person . . . communicates by telephone. . . or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm. 

When an employer learns of a possible hostile environment, it must comply with fairly strict rules relating to how and how quickly to respond.  Textual harassment adds another layer to the process because employers must determine whether any electronic evidence of harassment (or evidence that disproves harassment) exists on computers, laptops, and, now, cell phones.

Employer should consider whether their employees are using work (or personal) phones to send text messages about work during working time.  If so, you are obligated to take active steps to preserve these messages once you have reason to believe there may be potential litigation. If you're not in a position to do that, you may want to consider implementing a "no-texting" rule for all business-related correspondence.

I had the privilege of speaking on recent ADA and FMLA developments at breakfast seminar this morning. The event was presented by the Delaware Employer Council and held at Delaware Park’s beautiful facilities. Over 50 HR professionals attended.

This morning's topic included the regulations proposed last month by the EEOC as a result of the Americans with Disabilities Amendment Act of 2008 (“ADAA”). I also talked about last weeks’ expansion of FMLA military leave by the National Defense Authorization Act of 2010 (“NDAA”).

Highlights of the presentation included:

· The vast expansion of the scope the ADA by lowering the standard for establishing whether an individual has a disability.

· The prohibition against considering the effect of medication or other mitigating measures in determining whether a person is disabled.

· The six rules of construction in determining whether a person is disabled under the ADA

· The ability of families of injured veterans to take FMLA “military caregiver” leave under the NDAA.

· The ability of families of active members of the Armed Forces to take “qualifying exigency” leave under the NDAA.

As promised, my materials are linked below.  ADA FMLA Update