October 2010 Archives

Judge Obtains Protective Order Based on a Tweet

Posted by Molly DiBiancaOn October 31, 2010In: Social Media in the Workplace

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I’ve posted previously how an employee’s social-media content can be used to show his violation of a non-solicitation agreement.  We’ve also written about blog comment used as evidence in a Deceptive Trade Practices claim. Family-law practitioners report that Facebook is their primary source of online evidence in divorce cases.  And there are even a few cases in which courts have held that a “friend” request constitutes “contact” for purposes of a no-contact order.  But a recent case from Arizona puts yet another spin on the use of social-media activity as the basis for a lawsuit—in this case, the basis for a protective order. 

AZCentral.com reports the following.  An Arizona State University student tweeted that, if he saw a certain judge, he would “not hesitate to punch” him—a comment that apparently reflected the student’s disagreement with the judge’s support for Proposition 107, a measure that proposes to end further use of state-funded affirmative action. 

The judge, the Honorable Ward Connerly, apparently learned of the tweet and applied for a restraining order against the student.  Judge Connerly is reported as saying that he could not take the chance of not fully protecting himself and believed that the tweet constituted a serious threat of violence. The judge’s petition was granted and the ASU student is now prohibited from going within 100 feet of the judge or contacting the judge in any way.

I’m not sure what surprises me more—that the judge applied for a protective order or that another judge actually granted it.  Either way, this story clearly demonstrates just how seriously others will take your social-media postings—even if you, as the poster, don’t intend it to be taken as such.  

The Lesson to Learn From University Dean’s E-mail Snafu

Posted by Molly DiBiancaOn October 27, 2010In: Tech Tips

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Wesley University’s Dean of Students was one of several academic advisors who received an email from the school’s Director of Advisement. The email identified a list of students who were in danger of failing out of school.  So far, nothing unusual—the Dean of advisors notifies other advisors of students who probably needed some advice. 

Unfortunately, though, the Dean of Students accidentally forwarded the e-mail to unintended recipients.  In fact, she sent the e-mail to the entire student body.  Once the mistake was realized, the school’s IT Department recalled the message.  The school estimates that approximately 12 students opened the message before it was recalled.  Of course, there’s no way to know how many people actually received the e-mail—the 12 students could have forwarded the email to others, who, in turn, could have forwarded it again. 

This story is an unpleasant one but a powerful reminder to the rest of us to use extra care any time we: (1) forward an e-mail; or (2) copy multiple users on any e-mail.

SourceDelaware Online

IRS Delays Requirement to Report Cost of Group Health Coverage*

Posted by E-LawOn October 25, 2010In: Benefits

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The provisions of the Affordable Care Act of 2010 (the “ACA”) that require employers to report the aggregate cost of employer-sponsored health-care coverage on 2011 Forms W-2 will be optional and not mandatory. According to the IRS, this interim relief is being provided to allow employers to make necessary changes to their payroll systems. The IRS has also announced that it anticipates issuing guidance on this reporting requirement prior to the end of 2010. The ACA requires the “aggregate cost” is to be determined under rules similar to the rules for determining the “applicable premium” under COBRA. The aggregate cost will include the portions of the cost paid by both the employer and the employee.

Notice 2010-69

*This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections.  His primary area of practice is employee benefits, which involves both the benefit provisions of provisions of the Internal Revenue Service and ERISA.  He represents businesses and professionals in establishing, monitoring, and administering employee-benefit plans, new comparability retirement plans, non-qualified deferred-compensation plans, health, disability and life benefits, COBRA, HIPAA, ADA and ADEA.

Social Media Passwords and Account Content are Discoverable

Posted by Maribeth L. MinellaOn October 23, 2010In: Social Media in the Workplace

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Social-media usage and privacy interests continue to be a hot litigation topic. An individual’s LinkedIn, Facebook, and MySpace accounts, as well as their text messages and tweets, can be pay dirt for litigators looking to advance or defend a claim. Accordingly, disputes about formal discovery requests for an opponent’s social media profile and similar information are making their way to court. We’ve previously posted about Romano v. Steelcase, in which the court compelled a plaintiff to produce copies of her Facebook and MySpace profiles. In resolving the dispute, the court held that precluding plaintiff’s employer from obtaining the information “would condone [her] attempt to hide relevant information…”

Recently, a Pennsylvania court came to a similar conclusion, in McMillen v Hummingbird Speedway, Inc. McMillen sued Hummingbird Speedway, Inc. (“Hummingbird”) for personal injuries he allegedly sustained when he was rear-ended during a cool down lap after a 2007 stock car race. During discovery, Hummingbird asked McMillen whether he belonged to any social network computer sites and, if so, that he provide the name of the sites, his user names, and his login information, including any passwords. McMillen answered that he belonged to Facebook and MySpace, but he refused to provide any other information.

Hummingbird eventually filed a motion to compel McMillen to provide all of the information Hummingbird would need to access McMillen’s social media accounts. In his opposition to the motion, McMillen argued that his communications with friends via social media sites were private and thus protected from disclosure. According to the court, McMillan was essentially asking the court to recognize an evidentiary privilege for such communications. The court declined, reiterating that there is no “social media privilege” recognized by Pennsylvania’s court or legislature. As a result of the court’s decision, McMillen was ordered to give his opponent his Facebook and MySpace usernames and passwords. The court further ordered that McMillen shall not take any steps to delete or alter existing information and posts on his social media accounts.

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).

Violation of a Non-Solicitation Provision Via Blog Post

Posted by Molly DiBiancaOn October 22, 2010In: Cases of Note

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Can a blog post constitute evidence of solicitation in violation of a non-solicitation agreement? According to a federal district court in Michigan, it can. The case is Amway Global v. Woodward, No. 09-12946 (E.D. Mich. Sept. 30, 2010)

Petitioner Amway Global (“Amway”), sells health and beauty products through a network of individuals known as Independent Business Owners ("IBOs"). Respondents were former IBOs. Following the separation of the IBOs, Amway initiated arbitration proceedings, asserting breach of contract, tortious interference, and misappropriation of tort secrets. The claims were based on the former IBOs’ alleged violation of contractual prohibitions against soliciting other IBOs to compete against Amway.

The arbitrator determined that the former IBOs had breached their contractual obligations as set forth in Amway’s standard contract, which it called the “Rules of Conduct.” Specifically, Respondents were held liable for violating Rule of Conduct 6.5.5, which prohibited IBOs from “encourag[ing], solicit[ing], or otherwise attempt[ing] to recruit or persuade any other IBO to Compete with the business of the Corporation." Respondents appealed the arbitrator’s decision, contending that there was not sufficient evidence that they have violated the anti-solicitation provision

Amway had introduced evidence that showed that the IBOs terminated their contracts but remained in contact with each other and subsequently issued coordinated statements announcing that they were joining Amway’s competitor. The most captivating part of the decision, however, is the evidence upon which the arbitrator relied in finding that the former IBOs had solicited their former colleagues to join them in working for Amway’s competitor.

Specifically, one of the respondents had announced his decision to join the competitor in a blog post and wrote, “If you knew what I knew, you would do what I do.” As you may imagine, the respondents contended that blog posts were “passive, untargeted communications [that] fail as a matter of law to qualify as actionable solicitations.”

The court did not agree. Instead, the court found that this language in the blog post “would readily be characterized as [a] solicitation[].” The court rejected the respondents’ argument that “passive placement” of a solicitation on the Internet can qualify as a solicitation even if it does not involve “one-on-one importuning” and was not directed at any specific individual.

[H/T to Evan Brown at Internet Cases]

See also, Blog Post as Trial Evidence

I’m a Sucker for a Compliment

Posted by Molly DiBiancaOn October 21, 2010In: Employee Engagement

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Managers often underestimate the power of a simple compliment. A timely, sincere compliment costs nothing to give but can yield terrific returns. Yet, many leaders regularly fail to take advantage of this tool. And some people yearn for compliments more than others. With these employees, recognition of a job well done or praise for a victory is even more powerful. Compliments can be given directly to the individual or they can be communicated to the individual's peers, colleagues, or supervisors.  

Recently, a former colleague of mine was put up for a promotion. It would have meant a great deal to her--and to her commitment to her employer.

She didn't receive the promotion. To say she was disappointed would be a gross understatement.

starHer manager felt terrible about the turn of events. When he told her the bad news, he hurried through the explanation, failing to properly explain exactly what had occurred. Perhaps believing that the less he said and the shorter the discussion, the less she'd suffer. Wrong.

After she'd had time to digest the course of events, her only real complaint was not about her disappointment in not getting the new job. It wasn't even about the company's handling of the promotional process. And it wasn't about the manager's short explanation of what had occurred. Her only real complaint was that she felt so unappreciated at the end of it all. Had her manager only taken a moment to say that, despite the setback, the employee was still a highly valued member of the team and to assure her that the outcome of the selection process was not a reflection of the contribution she made to the organization.

In the case of my former colleague, a difficult setback for the employee could have been softened considerably by a simple compliment.

See other posts on Employee Engagement

National Disability Employment Awareness Month 2010

Posted by Molly DiBiancaOn October 21, 2010In: Resources

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Employers may want to take advantage of a new online toolkit to facilitate the return-to-work process for employees following a disability-related leave of absence.  The toolkit is intended to provide guidance to both employees and employers with the goal of getting employees back to work as soon as possible. The employer toolkit includes tips for possible accommodations, such as changes to work duties or schedules.  The site also includes suggestions for ways to reduce workers’ compensation costs and improve workplace safety. 

If you need specific information on how to accommodate an employee with a disability, be sure to check out the Job Accommodation Network (JAN)JAN is a free service with an unmatched library of informative resources.

Pennsylvania Passes Misclassification Law

Posted by Maribeth L. MinellaOn October 19, 2010In: Independent Contractors

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Pennsylvania now has a misclassification law that mirrors Delaware's law. Delaware's Workplace Fraud Act, enacted in 2009, imposes stiff penalties on construction industry employers who improperly classify employees as independent contractors to save on  business costs and avoid paying appropriate taxes. Sheldon Sandler previously posted about Delaware's law.caution sign road barrier

Similarly, under Pennsylvania's Construction Workplace Misclassification Act, an individual who performs services in the construction industry is considered an independent contractor in limited circumstances. The individual: (i) must have a written contract to perform services, (ii) be free from control or director over performance of such services both under the contract of service and in fact, and (iii) with respect to the individual's services, the individual must be customarily engaged in independently established trade, occupation, profession or business.

In addition to this criteria, Pennsylvania's law has particular requirements to prove that an individual is "customarily engaged" in an independently established trade, occupation, profession, or business. The law takes effect 120 days from October 13.

Take-Aways from the Navy’s Social-Media Handbook

Posted by Molly DiBiancaOn October 17, 2010In: Policies, Social Media in the Workplace

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The Navy has released its second handbook on social media.  The first was directed to ombudsmen and was released this summer.  The second was released last week and is directed to commanding officers. The handbook offers guidelines and suggestions for safe social-media use. Here are some of the most transferrable points from the new handbook, which employers may want to consider when drafting their own social-media policies:

  • Protect the safety of your family’s personal information;
  • Be familiar with the privacy settings of your account;
  • Keep sensitive information safe.

The social-media handbook also addresses how to respond if your account is hacked and what to do if you find that inappropriate comments have been posted to a Naval social-media account.

One particularly interesting section addresses the issue of friend requests between a commanding officer and those in his chain of command.  Regarding online relationships with subordinates, the handbook states:

If your social media presence exists simply to engage with people on a professional basis then becoming a friend of one of your Sailors or following them is less of an issue. However, if you use social media actively to communicate with your close friends and family then including Sailors who work for you is a more difficult decision. However you approach your connecting with subordinates from your command, it is up to you to lead by example and ensure that the relationship remains on a professional level and that deference to your rank and position is respected online and in the real world.

This is one of the better social-media handbooks I’ve encountered and is an excellent starting point for those employer who are beginning the process of writing a similar policy for their workplace.

See also:

Sample Social-Media Policy for Employers

Supreme Court Watch: Part 3

Posted by Maribeth L. MinellaOn October 13, 2010In: Retaliation, U.S. Supreme Court Decisions

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The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA. And, on Monday, we posted about Staub v. Proctor Hospital, in which the Court will address the cat's-paw theory in the USERRA context. 

The third and final post in this series discusses Thompson v. North American Stainless, LP. In a 10-to-6 decision, the Sixth Circuit held that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protected activity. In its decision, the Sixth Circuit joined the Third, Fifth, and Eighth Circuit Courts of Appeal in holding that the authorized class of claimants is limited to persons who have personally engaged in a protected activity.

Thompson argued that he was fired because is fiancée, who worked for the same employer, filed an EEOC charge of discrimination. His employer argued that Thompson was discharged for performance-based reasons. Thompson filed his own charge of discrimination with the EEOC, and the administrative agency found reasonable cause that North American Stainless violated Title VII. The EEOC issued Thompson a right to sue notice, and Thompson filed a cause of action against his employer.

North American Stainless eventually moved for summary judgment on the ground that Thompson’s claim – that he was terminated as retaliation for his fiancée’s charge of discrimination – was insufficient as a matter of law under Title VII. The district court granted the employer’s motion, holding that Thompson failed to state a claim for which relief could be granted. Thompson appealed to the Sixth Circuit Court of Appeals. The appellate court affirmed the district court’s opinion.

Thus, on December 7, 2010, the Court will hear argument on whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protected activity.

DOL Publishes FAQs on GINA

Posted by Molly DiBiancaOn October 11, 2010In: Genetic Information (GINA)

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The U.S. Department of Labor has published FAQs on the Genetic Information Nondiscrimination Act ("GINA").  The U.S. DOL GINA FAQs are largely devoted to discussion of Title I of GINA, which applies to insurers, not to Title II, which governs employment decisions.  Nevertheless, the FAQs do contain a basic discussion of what exactly is meant by "genetic information."


For more about the topic as it relates specifically to employers, be sure to check out Adria B. Martinelli's many excellent posts:

Supreme Court Watch: Part 2

Posted by Maribeth L. MinellaOn October 11, 2010In: Retaliation, U.S. Supreme Court Decisions, Uniformed Services (USERRA)

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The U.S. Supreme Court will hear oral arguments on several important employment-law cases this term. Last week, we posted about the upcoming argument in Kasten v. Saint-Gobain Performance Plastics Corp., in which the Court will address the requirements for an employee who claims retaliation based on the FLSA.

In this, the second part of this series, we look to an equally anticipated case, Staub v. Proctor HospitalStaub, like Kasten, is on appeal from the Seventh Circuit.  In Staub, the Supreme Court will examine   under what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced, but did not make, the ultimate employment decision.

Staub sued his employer, alleging that he was discharged in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub prevailed after a jury trial. His employer appealed, and the Seventh Circuit reversed the trial decision.

At trial, Staub proceeded under the “cat’s paw” theory. That theory, derived from the 17th century French fable “The Monkey and the Cat,” is understood today to mean "when one is used by another to accomplish his purposes." The cat’s paw theory is a way of proving discrimination when the actual decisionmaker is unbiased, but the discriminatory animus of a non-decisionmaker is imputed upon the decisionmaker, typically where the non-decisionmaker has singular influence on the decisionmaker.

Staub, an Army reservist, alleged that the reasons given for his discharge where mere pretext for discrimination based on his association with the military. USERRA prohibits adverse action based upon a prohibited criterion, in this case military status. Like other discrimination law, a plaintiff alleging a USERRA claim must show that the decisionmaker harbored animus toward him and relied upon that animus in choosing to take action against the plaintiff.

Staub won at trial, and his employer appealed. On appeal, the hospital argued, inter alia, that the trial court mishandled the cat’s paw theory. The Seventh Circuit agreed, finding that to succeed on a cat’s paw theory, a plaintiff must demonstrate that the decisionmaker blindly relied upon the non-decisionmaker’s influence. The appellate court also held that prior to admitting evidence of a non-decisionmaker’s animus, a trial court should determine whether a reasonable jury could find the presence of a singular influence over the decisionmaker.

This case is scheduled for oral argument on November 2, 2010. The Court will examine the circumstances which must be present for an employer to be held liable for the unlawful intent of officials who caused or influence, but did not make, the ultimate employment decision.

Supreme Court Watch: Part 1

Posted by Maribeth L. MinellaOn October 8, 2010In: Fair Labor Standards Act (FLSA), Retaliation

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The U.S. Supreme Court opened its new term earlier this week.  For the first time, three of the justices are women, creating an historic moment for the Court.  Employers anticipate several important decisions coming from the cases being heard this term, as well.  In this first part in a series, we'll post about three of the most interesting employment-law cases scheduled for oral argument this Fall.

Next week, the Court is scheduled to hear argument in Kasten v. Saint-Gobain Performance Plastics Corp. Kasten sued his employer, alleging a retaliation claim under the Fair Labor Standards Act (FLSA). Kasten’s employer had issued Kasten several disciplinary warnings because of his failure to properly clock-in and out of the company’s timekeeping system. Kasten claimed he made verbal complaints to his supervisors about the legality of the location of the timekeeping clock. Kasten claimed that the clock’s location prevented employees from being paid for donning and doffing their required protective gear. Kasten was eventually terminated for failing to follow the company’s policy with respect to clocking in and out. Kasten sued his employer for retaliation under the FLSA, alleging that he was terminated in retaliation for his verbal complaints.

The trial court granted summary judgment in favor of the employer, finding that intra-company complaints are protected activities under the FLSA, but unwritten complaints, like Kasten’s verbal complaints to his supervisors, are not included in the act as a protected activity.

Although there is a split among the circuits on this issue, the Seventh Circuit affirmed the trial court’s decision. The Seventh Circuit held that while the FLSA’s anti-retaliation provision includes internal complaints as a protected activity, “to file” such a complaint means to file written complaint, not to merely submit a verbal complaint to one’s supervisor.

Kasten appealed the Seventh Circuit’s opinion after seeking rehearing, which was denied with a dissenting opinion. Oral argument on the question of whether an oral complaint is protected conduct under the FLSA’s anti-retaliation provision is scheduled for October 13, 2010.

The Invisible Gorilla’s Lesson for HR Pros

Posted by Molly DiBiancaOn October 8, 2010In: Interviewing, Resources

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Any human-resource professional who conducts internal investigations of employee complaints (i.e., discrimination, harassment, bullying) would be well advised to read the new book, The Invisible Gorilla.  The book is written by Christopher Chabris and Daniel Simons, the two minds who collaborated on a famous psychological experiment for which they were awarded the Ig Nobel Prize in Psychology. 

If you haven’t heard of the “gorilla experiment” (also known as a “selective-attention test”), you can (and should) check it out on the authors’ website.  You can watch the video to take the test—but be warned that you may be very, very surprised by the results!  According to the authors:

This experiment reveals two things: that we are missing a lot of what goes on around us, and that we have no idea that we are missing so much.

And they’re not kidding.  As they explain in the the book, we have an amazing ability not to see what’s going on around us.  And, as also explained in the book, we also have an amazing ability to remember facts incorrectly; in other words, we get the story really, really wrong.  More notable, though, is how convinced we become that our memory is accurate. In fact, we are so sure that our recall of a traumatic event is correct that we can’t be convinced even with documentary evidence.

So how does this potentially affect HR?  At a minimum, the authors’ findings will change the way you conduct your next internal investigation. When you’re interviewing potential witnesses, you will be keenly aware of the tricks that our memories can play on us—and how convinced we can be that our memories are not being tricked at all.

Nov. 17: Attorney’s Guide to Going Paperless Audio Conference

Posted by Molly DiBiancaOn October 7, 2010In: Seminars

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I am excited to be presenting the upcoming audio conference, “The Attorney’s Guide to Going Paperless,” sponsored by National Business Institute.  This ninety-minute presentation will focus on the growing popularity of “going paperless,” why it’s so important in today’s technologically driven world, and the steps attorneys can take to make the transition from a world of print-outs and overflowing redwelds.  I will also be discussing the ethical and legal responsibilities that must be considered when transferring paper files onto computers, such as record-keeping laws and confidentiality concerns. 

The conference has been approved for 1.5 CLE credits in Delaware (other states may vary), and dial-in time is 2 p.m. EST.  Registration can be completed online .The cost is $189 for the first registrant and $179 for each additional registrant.

Delaware Events to Fight Identity Theft

Posted by Molly DiBiancaOn October 6, 2010In: Privacy In the Workplace, Privacy Rights of Employees

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Delaware readers may be interested a few upcoming events designed to help prevent identity theft. Delaware’s Identity Theft Working Group is sponsoring these events during the week of October 18-24, which is National Protect Your Identity Week.

Oct. 20:  Senior Identity Theft & Fraud

This educational event will take place from 10:30 a.m. – 12:30 p.m. at the Modern Maturity Center in Dover, located at 1121 Forrest Avenue.  You can RSVP for this event and get more information by calling 302-734-1200.

Oct. 21:  Protecting Small Business from Identity Theft

This event is sponsored by the Better Business Bureau of Delaware and will be held at the Wilmington Double Tree Hotel, located at 700 N. King Street from 7:45 a.m. till 10 a.m.  RSVP for the event by calling 302-230-0112 ext. 19.

Oct. 22:  Working Together to Combat Identity Theft

The Federal Bar Association is co-sponsoring a Law Enforcement and Financial Institution training titled “Working Together to Combat Identity Theft” on October 22, 2010, from 8:00 a.m. to 12:30 p.m. at Theatre N, First Floor, 1007 Orange Street, Wilmington, DE 19801.  The October 22 training will include the following discussion topics:

  • Elements of Proof of Identity Theft Crimes:  A Federal and State Overview
  • An Identity Theft Investigation Case Study:  What Worked and Why
  • Addressing Expectations of Both Financial Institutions and Law Enforcement In Investigating Identity Theft Cases
  • Panel Discussion:   Financial Institution Investigators and Federal and State Investigators

In order to register for this training, which will be of primary interest to prosecutors and those lawyers who work with clients to investigate matters relating to identity theft, submit this registration form by October 18, 2010.  If you RSVP for the training, please indicate that you are an attorney who will wish to seek Delaware CLE credit for the training.  The training is free.

Oct. 23:  Shred Event

Consumers may bring up to 3 file-size boxes of documents for shredding to the Boscov’s at the Dover Mall between 9 a.m. and 1 p.m.  The Delaware Attorney General is the sponsor of this event and more information can be found at www.attorneygeneral.delaware.gov.

You can print the following poster, which includes information about all of these events. 

Identity Theft Event Poster

Employers in any state can celebrate National Protect Your Identity Week by educating employees about how to protect themselves from identity theft.

Discretion Is the Better Part of Valor (and Cell Phone Usage)

Posted by Adria B. MartinelliOn October 4, 2010In: Social Media in the Workplace

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While sitting in the Nashville Airport this weekend returning from the Advanced Employment Issues Law Symposium (AEIS), my employment-lawyer ears perked up. I’ve been known to eavesdrop when the conversation seems interesting (and sadly, that includes employment law/HR issues). However, in this instance, I quickly realized that no special effort had to be exerted. Sitting directly across from me in the terminal was a woman (I’ll call her VIHP – “Very Important HR Person”) speaking VERY loudly on her cell phone. It was absolutely impossible not to hear every word she said.  many cell phones

In just a few minutes, I learned that she was an HR Executive, the name of her employer, the name of the company who had recently acquired them, the operational issues with the (former) employer that led to the acquisition, her dislike of the new management (naming names), and the details of several personnel issues she was dealing with at the moment, including one employee (identified by name) who they were going to terminate and who was “definitely” going to file a discrimination lawsuit. She even repeated the alleged “stray comment” referencing the employee’s national origin. I will not repeat it here for fear someone will feel harassed, but I will say that neither J. Lo nor Eva Longoria would appreciate the comment.

Ironically, one of the personnel matters VIHP was addressing dealt with social media, regarding an inappropriate Facebook status posted by one of her employees. VIHP said (to what seemed to be one of her direct reports) : “you know how there’s a blackout on the whole [name of project]*? Well, [name of employee] posted about [contract award] on his Facebook status. I know he’s probably seen it elsewhere and thought it was public. But everyone in the [name of department] was specifically told to keep it confidential.” She then proceeded to say that the employee’s supervisor needed to call him immediately and tell him to take the posting down. This was a perfectly appropriate way to handle the matter. I know, I listened to Molly DiBianca’s presentation on social media at the AEIS!

However, let’s not forget the now old-fashioned, almost quaint form of communication: cell phone conversations. Granted, VIHP was blasting the information out to maybe 25 people in the terminal, whereas a Facebook page could go to hundreds or more. Nonetheless, confidential is confidential – regardless of whether the information is disclosed to a handful or a thousand. I found it more than a little ironic that VIHP was chiding the employee who posted the information on his Facebook page, while broadcasting that very same information to the entire waiting area. The lack of judgment here was astounding. Nevertheless, even supposedly smart lawyers have showed this same indiscretion.

There was a completely empty gate area just twenty steps from where we sat, that would have allowed her to discuss the matters privately, if she absolutely HAD to discuss them at that moment. It appeared the woman was rather self-impressed and thought she would impress her fellow passengers with her “shop talk.” I can tell you – NO ONE was impressed. Many smirks and disapproving glances were darting among the other passengers around her. It made everyone simultaneously uncomfortable and annoyed.

Whether talking business or kvetching about your boss, it should be obvious what types of information should not be discussed in public places: whether with “friends” on Facebook, or more traditional public forums. Don’t be a VIHP.

* Although I have omitted the proper names of companies and individuals involved, VIHP did not.

See also:

Sample Social-Media Policy for Employers

Employee Fired When Her Sex Blog Is Discovered by Her Boss

Judge Shows Why Employers Should Consider Prohibiting Employees From Posting Anonymously Online

State Off-Duty Conduct Laws and Facebook-Friending Policies

Use Twitter, Get Fired