By Lauren E.M. Russell

The more technological of our readers may be aware of a brouhaha involving a website named Reddit.  Reddit is best known, among the general population, for conducting structured question-and-answer sessions called Ask Me Anything (AMA), in which subjects respond to questions posted by Reddit users. The subjects of an AMA may range from the mundane (a trash man) to extremely high profile politicians, including President Obama. One Reddit employee, Victoria Taylor, was largely responsible for organizing and facilitating AMAs. She was fired in early July, and the resulting firestorm offers many lessons in what not to do when terminating a high profile employee.

What Happened? Who Knows.

For those involved in Reddit’s online community (known as Redditors) Victoria Taylor was a high profile individual. She was well known and well-liked by the community, which has many active participants. However, when Ms. Taylor was terminated, no information was given to community members.

Admittedly, this is a double-edged sword. On one hand, employment attorneys frequently counsel clients not to disclose the reasons for employee terminations: human resources decisions are confidential and will not be discussed. This can be especially true in employee-friendly states such as California, where Reddit is located. Those states may have statutes protecting employee confidentiality, which could result in employer liability if breached. On the other hand, when a high profile employee is terminated, other employees should always be prepared for the change in direction, and some explanation should be available.

In the case of Ms. Taylor, Reddit initially provided no explanation for her termination. Consequently, the public began to speculate that she was terminated as the result of a particularly hostile AMA involving Reverend Jesse Jackson. Given Ms. Taylor’s history of highly successful AMAs involving controversial figures, individuals understandably felt that termination for a single gaffe was unfair. As it turns out the Jackson AMA had nothing to do with Ms. Taylor’s termination. Instead, Reddit decided to take a change in direction, encouraging public figures to join Reddit and interact with the community directly, rather than using Ms. Taylor as a middleman.

But speculation should have been expected when no explanation was provided. Had Reddit informed key members of the public-those responsible for moderating Reddit’s forums-of the change in approach it intended, it could have avoided the controversy that resulted. Instead, these key Redditors went on strike, and effectively shut down the website. The resulting firestorm was damaging to Reddit’s public image, and profitability while the website was down.

Know Your Audience

Reddit’s second major misstep was in addressing and correcting its mistake. In an effort to get Reddit back on line, founder Alexis Ohanian issued an apology, what was posted to various boards on Reddit. Mr. Ohanian’s post was followed by a second written statement by Reddit CEO Ellen Pao. However, the tone of the statements was viewed by the protesting parties as condescending, and insufficient to fully address the issues giving rise to the protest. More specifically, the moderators who disrupted the site felt that the way in which Ms. Taylor was terminated was symptomatic of other problems at Reddit, including a lack of effective communication and a lack of respect and appreciation for the work that Redditors do, on a voluntary and uncompensated basis, to contribute to the success of the website. As a result, the statements exacerbated the conflict, rather than resolving it.

It is admittedly difficult to address conflict after it arises-ideally careful handling of a high profile termination will avoid problems in the first place. But when they arise, a business must be able to effectively communicate with its employees and/or consumer base to resolve the issue. In this case, a more effective approach may have been a joint statement from Reddit and Ms. Taylor, both apologizing for the manner of the termination, and communicating Ms. Taylor’s support for the organization. If such a statement was not possible due to an acrimonious termination, then the tone of Ms. Ohanian’s and Ms. Pao’s statements should have been more cautious.

The Results

Weeks later, Reddit still hasn’t recovered from the controversy surrounding Ms. Taylor’s termination. However, it has resulted in additional shakeups. Reddit’s CEO, Ms. Pao, was terminated and its founder, Mr. Ohanian, was reinstated as CEO in an effort to quiet the situation. Ms. Pao was, admittedly, a highly controversial figure both at Reddit, and in the tech industry generally. But her poor management of the termination of Ms. Taylor-one of the most visible faces of Reddit-is undoubtedly the cause of her termination.

Bottom Line

High-profile terminations must be carefully managed, and planned out before the termination is affected. The effective use of a severance agreement and a public joint statement by Reddit and Ms. Taylor could have alleviated much of the strife in this particular case. Instead, Reddit alienated much of its user base and created an avoidable firestorm. Businesses undertaking similar actions-especially for the first time-are well counseled to consult with an attorney, public relations professional, or other expert to effectively plan for a termination that will inevitably become public news. Preparation is the best way to avoid public speculation, and the resulting unrest that arises from the worst-case-scenarios dreamed up by those who are not part of the decision-making process.

By Scott A. Holt

 

The U.S. Department of Labor (DOL) released its proposed rule today that would broaden federal overtime pay regulations by raising the minimum salary threshold to $50,440 per year in order qualify for an exemption from overtime under the Fair Labor Standards Act (FLSA).

To help understand what this means, below are answers to some questions you might have:

Q.        Why is the DOL making this change?

A.        The proposed change was prompted by a memorandum President Obama issued in March 2014 which directed the DOL to “modernize and streamline” the regulations on exemptions from the FLSA’s minimum wage and overtime pay requirements.  By way of this new rule, the DOL seeks to update the salary level test to ensure that the FLSA’s intended overtime protections are “fully implemented” and “to simplify the identification of overtime-eligible employees.”

Q.        What are the changes being proposed?

A.        Under the current regulations, which were last updated in 2004, employees have to meet certain job duties-related tests and be paid at least $455 per week-or $23,660 annually-in order to be exempt from minimum wage and overtime requirements under the FLSA exemption for executive, administrative, professional, outside sales and computer employees. The proposed rule would make the following changes:

· Increase the current minimum salary requirement from $23,660 to $50,440 a year;

· Increase the highly compensated employee annual compensation level from $100,000 annually to $122,148 per year; and

· Automatically increasing the salary and compensation levels on an annual basis.

 

Q.       How will this change impact employees and employers?

A.        The change is estimated to impact approximately 11 million employees who earn below the proposed salary threshold or who qualify for the highly compensated employee exemption.  Of this group, almost 5 million white collar workers will become newly entitled to overtime compensation because of the increase in the minimum salary threshold to $50,440 a year.  Another 6 million highly compensated white collar employees will have their eligibility clarified because it will be determined solely by application of the new salary threshold of $122,148 per year.

Q.        Did the DOL propose any changes to the “duties” test of the FLSA?

A.        While the DOL did not propose any specific changes to the standard duties tests, it is seeking comments on whether the current duties tests are working as intended to screen out employees who are not bona fide “white collar” exempt employees.

Q.        What happens next?

A.        Under the DOL’s Notice for Proposed Rulemaking, the federal agency must accept comments from the public before implementing the change.  Public comments can be submitted to the DOL in writing (or online at www.regulations.gov) by referencing the rule’s Identification Number (RIN) 1235-AA11. Once the period of commentary has ended, the DOL will likely issue a final rule implementing the changes.

By Michael P. Stafford

Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.   Medical Marijuana in Delaware

Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies.

A recent case from Colorado, Coats v. Dish Network, LLC, illustrates the conundrums employers now face.

Brandon Coats, a quadriplegic who suffered from painful muscle spasms as a result of his condition, began working for Dish Network as a telephone customer service representative in 2007. Subsequently, in 2009, he obtained a Colorado license to use medical marijuana. The next year, a random drug test revealed the presence of THC metabolites in his system, and his employment was terminated in accordance with Dish Networks drug policy. Significantly, there was no allegation that Coats ever used, or even possessed, marijuana in the workplace.

Coats sued Dish Network, relying on a Colorado statute that prohibits employers from discharging employees for “lawful activities” outside the workplace. In Coats’ view, Dish Network was prohibited from penalizing him for smoking medicinal marijuana lawfully under Colorado law during his free time. Dish Network disagreed, and argued that Colorado law didn’t apply because smoking marijuana was still unlawful under federal law.

Surprisingly, the Colorado Supreme Court agreed with Dish Network, concluding that the term “lawful activities” wasn’t restricted to those permitted under Colorado law but instead also encompassed federal law. As a result, because marijuana use remains illegal under federal law it could not be a “lawful activity,” and Dish Network was free to fire him based on the results of the drug test.

Obviously, the decision isn’t directly applicable to Delaware- we don’t have an analogous provision to Colorado’s “lawful activities” statute in our law and medicinal marijuana cardholders are protected directly in other ways. For example, under Delaware law although employers are not required to permit cardholders to possess, use, or be under the influence of marijuana in the workplace, a cardholder “shall not be considered to be under the influence of marijuana solely because” a drug test reveals “the presence of metabolites or components of marijuana” in their system. As a result under Delaware law, the mere presence of THC in Coats’ system would not have been a lawful basis for terminating his employment; Dish Network would have also had to demonstrate that he was “under the influence”- a tricky proposition for employers given the lack of agreement on generally accepted standards for measuring marijuana impairment.

Coats v. Dish Network, LLC, 303 P.3d 147 (Colo. Ct. App. 2013).

By William W. Bowser

Under the Family and Medical Leave Act, an eligible employee can take up to 12 weeks of protected leave for his or her own “serious health condition.” A “serious health condition” is defined by Department of Labor’s regulations as one “that involves inpatient care … or continuing treatment by a health care provider.” While many FMLA cases have focused on the meaning of “continuing treatment,” the definition of “inpatient care” has seen little review. A recent decision by the Third Circuit Court of Appeals, which covers Delaware, recently focused on the issue.

Jeff Bonkowski worked for Oberg Industries as a wirecut operator and machinist. During a meeting with his supervisors on November 14, 2011, Bonkowski began to experience shortness of breath. His supervisors gave him permission to go home and he clocked out at 5:18 p.m. Shortly after 11 p.m., Bonkowski’s wife drove him to the hospital. Although he arrived at the hospital before midnight, he was not admitted into the hospital until shortly after midnight on November 15th. As we will see, these few minutes would be very important.

Bonkowski underwent comprehensive tests and was sent home on evening of the November 15– after staying in the hospital for about 14 hours. Oberg terminated him because he had walked off the job on November 14 and his absence on November 15. Bonkowski filed suit under the FMLA claiming that his absence from work on November 15th was a qualifying absence under the FMLA protecting him from discharge.

The District Court for the Western District of Pennsylvania threw out his case. It found that Bonkowski didn’t have a “serious health condition” because he did not receive “inpatient care.” It pointed to the definition of “inpatient care” contained in the DOL’s regulations which requires an “overnight stay in a hospital….” The District Court ruled that in order to have an “overnight stay,” Bonkowski would have to be admitted before sunset on one day and discharged after sunrise the following day. Since Bonkowski was not admitted until after midnight on November 15 and discharged the same day, he did not have an overnight stay.

Bonkowski appealed to the Third Circuit. While the Third Circuit rejected the “sunset-sunrise” rule used by the District Court but still ruled in favor of Oberg. It ruled that an “overnight stay” means a stay in for a substantial period of time from one calendar day to the next day measured from the time of admission to the time of discharge. Since Bonkowski was admitted after midnight on November 14, his stay did not constitute an “overnight stay.” Without such a stay, he could not have received “in patient care” and could not have a “serious health condition.”

The Third Circuit rejected the “sunrise-sunset” rule because the required time in the hospital would vary depending on the season of the year and geographic location. It also rejected Bonkowski’s claim that time spent at the hospital before actual admission should count because the “calendar day” rule would provide a bright line criterion for employers and employees alike.

Conclusion

In sum, Bonkowski FMLA claim was erased because of a few minutes waiting at the hospital. While the result may seem harsh, the rules does, at least, provide an somewhat understandable standard. This case does not resolve what a “substantial” time in the hospital means. In other words, will a stay just before midnight to just after midnight qualify? If not, just how many hours will be required? Stay tuned.

Bonkowski v. Oberg Industries, No. 14-1239 (3d Cir. May 22, 2015)

A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute.  House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking.  If passed, the bill would have important implications for Delaware employers.  Here’s what you need to know.

Which Employees Would Be Protected?

If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence.  There are several scenarios where the implications of the law would be significant.

For example, assume an employee’s spouse is believed to be violent. The spouse comes to the workplace every day and sits in his car in the parking lot as a way to harass the employee.  The employee refuses to report the spouse to law enforcement out of fear of the repercussions.  The employer has a legitimate reason to be concerned.  Not only is the spouse’s conduct disruptive to the workplace but it also gives rise to a potential incident of violence at the workplace.

If the employee continues to refuse to report the conduct, can the employer terminate the employee?  Under the current law, yes.  Under the proposed law, no.  the proposed law prohibits an employer from taking adverse action against an employee because of domestic violence or stalking, both of which may be triggered under these facts.

Another possible scenario could involve co-workers in a domestic relationship.  Assume the relationship goes south and both employees file for a protective order, each alleging domestic violence.  Each has a therapist prepare a statement that he or she is the victim. 

Can you terminate one of the two under the proposed law?  No.  Can you terminate both?  Also, no.  Must you permit both of them to continue to work in the same location, causing a seemingly volatile situation?  Likely so.

What Are Employers Required to Do?

In addition to not discriminating, Delaware employers also would be required to make “reasonable accommodations” to an employee who is the victim of domestic violence, sexual offense, or stalking.  Specifically, employers would be required to accommodate the employee’s “known limitations” related to the offense.

For example, an employer would be required to permit the employee to make use of any accrued leave in order to avoid the spouse in the parking lot.  Or, perhaps, an employer could be required to permit the employee to use a different entrance and exit so to avoid being seen by the spouse.  The scope of required accommodations is unclear, as the term is not defined in the statute but, as with disabilities-based accommodations, would likely be expansive.

How Should Employers Prepare?

If the law is passed, employers could be faced with challenging facts.  Until then, employers may want to consider reviewing the following policies:

Violence in the Workplace.  Be sure your policy contains safeguards to ensure preparedness and that your employees know how to respond in an emergency.

Anti-Fraternization.  Consider whether you should impose restrictions on romantic relationships among employees.

Harassment.  As with other types of harassment, employees should be informed of the appropriate channels of communication when they or their coworkers are being subject to unlawful harassment.

By Barry M. Willoughby

At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court.  Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf.  Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis.

On June 1, 2015, as we predicted, the Court issued its Opinion finding that the employer had indeed violated Title VII’s prohibition against religious discrimination.  Significantly, the Court ruled that actual knowledge of the employee’s need for a religious accommodation is not required.  Instead, the Court found that the test is whether the employer’s decision was, in fact, motivated by illegal discrimination under Title VII.

Analysis and Recommendations

The Supreme Court decision correctly focuses on the question whether an employer’s adverse action was motivated by illegal discrimination rather than its knowledge of the applicants protected status.  While knowledge, unsubstantiated or otherwise, of an applicant’s protected status will continue to be an important element of proof, the ultimate question in determining whether illegal adverse action has occurred is the employer’s actual motivation for its decision.  As the Court noted, knowledge alone will not be a basis for liability, if, in fact, the employer’s actual motive was not discriminatory.  On the other hand, an employer who is in fact motivated to discriminate based on unsubstantiated facts or suspicion, is nevertheless liable under Title VII.

We recommend that employers make sure that their decision makers understand that a decision motivated by illegal considerations will lead to liability regardless of their knowledge of the applicant’s protected status. We suggest that employers who are confronted with a potential religious accommodation issue directly address the issue with the applicant to determine whether an accommodation is necessary.

Following the familiar approach for addressing need for an accommodation of a disability is a good guide. If, as in Abercrombie, there is an obvious reason to believe that a religious accommodation may be necessary, the employer should affirmatively raise the issue and engage in the “interactive process” for determining whether an accommodation is required. If, on the other hand, there is no apparent reason for the employer to believe that an accommodation is necessary, the employer need not raise the issue.

At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives.  The bill passed the House on later that day and is now headed to the Senate.  For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law. 

The stated purpose of HB 109 is to protect individuals’ privacy in their personal social media accounts.  Generally speaking, HB 109 would prohibit employers from requiring or requesting that an employee or applicant give the employer access to their personal social-media accounts-either by giving up their passwords or by logging in and letting the employer take a look (also known as “shoulder surfing”). 

As we all know, though, with any law, the devil is in the details.  And there are, not surprisingly, a few devilish details.  For example. . .

HB 109 prohibits an employer from asking an employee (or applicant) from disclosing “a username . . . for the purpose of enabling the employer to access personal social media.”  As written, that would mean that an employer could not ask a candidate what his or her Twitter handle is.  Twitter is, generally speaking, a publicly available site. 

So an applicant could have a public Twitter account, where he tweets racist or sexist speech or talks about how he likes to steal money from his current employer, but the employer wouldn’t be able to ask about it?  Huh?  I supposed we’d just have to wait till discovery in a lawsuit before we could ask for that (public information)?  Not my favorite part of this law.

There are other confusing parts of HB 109 that I think likely are unintended consequences of the legislation.  But, with 38 votes in favor and none against, it appears that the unintended consequences are well on their way to becoming law.  We’ll see what the Senate has to say about it and will be sure to keep you updated.  In the meantime, you can track HB 109 here.

By Lauren E.M. Russell

In Young v. United Parcel Service, Inc., the Supreme Court interpreted the language of the federal Pregnancy Discrimination Act, which requires that employers treat pregnant employees in the same manner as other individuals who are similarly limited in their abilities. Among the Court’s conclusions is that a policy that provides job-related accommodations to those who are injured on the job and those who have disabilities governed by the Americans with Disabilities Act may also have to be extended to pregnant employees with physical restrictions. The decision opens a lot of questions, but Delaware employers may have a leg up in compliance!

The Court’s Decision

In Young, the Court addressed the case of a young woman who became pregnant after having several miscarriages. In connection with her pregnancy, her doctor placed her on a lifting restriction. UPS informed Young that it could not accommodate her lifting restriction, and she was placed on unpaid leave. Young eventually lost her employer-sponsored health coverage, and filed suit against UPS for pregnancy discrimination.

UPS readily acknowledged that it refused to provide an accommodation to Young. It also acknowledged that it routinely provides accommodations to employees: (1) with a work-related injury; (2) who have lost their Department of Transportation certification; or (3) who have a disability within the meaning of the Americans with Disabilities Act, as amended. Historically, UPS’s policy would not have been a problem. As we all know, pregnancy is not, in and of itself, a disability. In addition, EEOC regulations have long held that an employer could have a policy that provided reasonable accommodations to work-related injuries, but denied such accommodations to similarly limited pregnant employees. The purpose of this carve-out is to allow employers to avoid workers’ compensation costs by putting injured employees back to work on light duty.

So what changed? The EEOC has changed its stance on pregnancy. Under the Americans with Disabilities Act Amendment Act, many more limitations now qualify as disabilities, including fertility problems. In addition, the EEOC has made clear that it will be targeting systemic discrimination, including pregnancy discrimination, over the coming years. In connection with this change, the EEOC has just issued a Notice of Proposed Rule Making, and we can expect new regulations with respect to pregnancy within the next year or two.

Setting those developments aside, the Supreme Court did not rule that UPS’s policy was unlawful. Instead, it simply ruled that the trial court had to consider whether there was a legitimate, non-discriminatory reason for the distinctions drawn between the three classes of employees that UPS does accommodate, and UPS’s refusal to accommodate pregnant employees with lifting restrictions.

Impact on Delaware Employers

The Young decision opens up a lot of questions, including what legitimate business considerations may justify a decision to accommodate some employees, while not accommodating pregnant employees. But Delaware employers have some additional guidance, in the form of the new pregnancy provisions of the Delaware Discrimination in Employment Act (DDEA)

As we have reported previously, the Delaware General Assembly amended the DDEA in 2014, to expressly prohibit discrimination against pregnant employees and to require accommodations of pregnant employees, even when they are not disabled within the meaning of Delaware anti-discrimination law. While this statute places a heavier burden on Delaware employers, it also provides some guidance in compliance with the Young decision. In Delaware, there is no question that pregnant employees are entitled to take advantage of the same reasonable accommodation processes that are available to disabled employees-there is no need to determine whether you have a legitimate non-discriminatory reason to make a distinction.

Bottom Line

While Delaware may have raised the bar on employer treatment of pregnant employees, the amendments to the DDEA do provide guidance to Delaware employers. Unlike many other states, we do not have to wait for courts to parse what business concerns are “legitimate,” and which are insufficient to justify different treatment of pregnant employees. We must accommodate them all, under the same standards as applicable to the ADA.

The Supreme Court’s 2013 ruling in United States v. Windsor created a lot of uncertainty in the area of federal employment benefits. Because the federal government’s definition of marriage as being between one man and one woman was held to be unconstitutional, the decision left open the question of when same-sex couples were eligible for spousal benefits in a variety of contexts. In a move that is sure to simplify issues for multi-state employers, the Department of Labor is taking steps to clarify that issue under the Family & Medical Leave Act (FMLA).

The FMLA

The FMLA is a federal law providing unpaid leave to employees who have worked for a company for at least twelve months, and who worked at least 1,250 hours in the calendar year preceding the request for leave. Leave may be taken for a variety of reasons, including to care for a spouse with a serious health condition. Thus, a key consideration in determining eligibility for FMLA leave is whether the person for whom you intend to care is a “spouse” under applicable law. The term “spouse” used to be defined by the Defense of Marriage Act (DOMA). However, DOMA’s definition of marriage was declared to be unconstitutional under the Windsor decision.

The Reaction to Windsor

In the wake of the Windsor decision, the federal government was forced to come up with a new approach to federal benefits impacting spouses. Different agencies adopted different approaches, and sometimes applied different standards to different laws administered by the same agency. With regard to the FMLA, the U.S. Department of Labor adopted a “state-of-residence” rule, meaning that if a same-sex couple’s marriage was not legal in the state where they lived, they were not entitled to spousal leave under the FMLA. So, for example, in 2003 a same-sex couple living in Pennsylvania, who are employed in Delaware and came to Delaware to get married, would not be entitled to spousal leave benefits under the FMLA because their marriage would not be recognized by the Commonwealth of Pennsylvania (a federal judge in Pennsylvania struck down the state’s ban on same-sex marriage in 2014).

This “state-of-residence” rule imposed a significant administrative burden on employers, who would have to research the legality of a couple’s marriage in their home state as part of the FMLA eligibility analysis. The problems are particularly taxing on the East Coast, where individuals frequently live and work in adjacent states. It also created a problem for businesses with a telecommuting workforce, where the HR professionals could have to familiarize themselves with the laws in all 50 states.

A New Approach

Recognizing the administrative burden imposed on employers, the Department of Labor had revised its approach to spousal benefits under the FMLA, adopting a “place-of-celebration” rule. Under the new rule, so long as the marriage is legal in the location in which it is celebrated, the couple will be considered spouses for purposes of being entitled to leave under the FMLA. This approach reduces the administrative burden on employers, who can now treat same-sex marriages the same way that they treat traditional marriages: by reviewing a copy of the marriage certificate of simply assuming that the marriage is valid.

The new rule is part of a formal rule-making process, and will be issued on February 25, 2015. It becomes effective March 27, 2015.

Bottom Line

The Department of Labor’s revised approach to spousal leave benefits is intended to give same-sex spouses the same access to FMLA leave as all other married partners. It has the added benefit of simplifying the administrative process for employers, which is already onerous under the FMLA. Employers who have already voluntarily extended FMLA leave to all same-sex spouses will not experience any change in the process, and can breathe an added sigh of relief!

A party’s “right to privacy” in the context of social media is the subject for numerous motions in civil litigation.  The scenario goes like this:  Plaintiff sues defendant, alleging injuries.  Defendants seeks discovery of Plaintiff’s social-media content, such as photos, posts, and comments, in the hopes of disproving liability and/or damages.  Plaintiff claims right to privacy in social-media content.  Court must decide. social media discovery

Because these cases are so fact specific, it can be difficult to extract a single principle or set of guidelines from their holdings.  But a recent case from an appellate court in Florida is a terrific example of the basic balancing act.

In Nucci v. Target Corp., the plaintiff claimed to have suffered physical injuries while shopping at a Target store.  Target sought to discover photographs of the plaintiff from her Facebook account going back two years before the incident through the present.  Target claimed that the photos would go to the quality of the plaintiff’s life before and after the accident to determine the extent of her loss. 

The trial court agreed and ordered the plaintiff to produce the pictures.  The plaintiff appealed.  On appeal, the court examined in detail the balance between a party’s “right to privacy” and another party’s right to take broad discovery in civil litigation.  In the end, the appellate court agreed with Target and upheld the trial court’s ruling, ordering the plaintiff to produce the photographs.  I agree with the court’s ruling and find some of the points made in its opinion to be of particular interest.  Here are a few highlights.

First, unlike most states, individuals in Florida have a constitutional right to privacy.  In Delaware and most other states, there is no such right.  There is a federal constitutional right of privacy but that extends only to actions taken by the government.  So, for example, in Delaware, in order to claim privacy as a basis to avoid similar discovery, it would have to be the government seeking to obtain the pictures.  Thus, the Florida court had to address the privacy issue as an additional step over and above what would be protected in most other states.

With respect to privacy, the court explained that the right of privacy does not attach unless and until there is a “legitimate expectation of privacy.”  Here, the court concluded that, “generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established.”  The court agreed with other courts that have found that there is no “special privilege” or other protections for content shared via social-networking site.

Second, the court recognized the potential value of information and evidence shared via Facebook or other similar site.  The court explained that, particularly in a personal-injury claim,

. . . there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media . . .

Thus, the court held, the photographs sought by Target were “powerfully relevant” to the issue of damages.

This decision is so thoughtful and well written that it is, in my opinion, a leading example for other courts to follow when faced with decisions about what can and should be produced during litigation from a party’s social-networking accounts. 

Nucci v. Target Corp., No. 4D14-138, 2015 Fla. App. LEXIS 153 (Fla. Ct. App. 4th Dist. Jan. 7, 2015).

See also:

How NOT to Produce Facebook Evidence

Waiver of Attorney-Client Privilege Via Facebook

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Discovery and Preservation of Social Media Evidence

Court Finds Duty to Preserve Personal Emails of Employees

Discovery of Social-Media Passwords

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Employer Failure to Preserve Employee Social-Media Evidence

Is There a Reasonable Expectation of Privacy In Your Tweets?

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants’ Social-Media Posts

Call Me, Maybe. Discovery of Employee Identities

Spoliation of Facebook Evidence

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