May 2011 Archives

LinkedIn Lessons for Employers: Part 3

Posted by Molly DiBiancaOn May 25, 2011In: Social Media in the Workplace

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In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role in the outcome of the parties’ dispute. linkedin logo by webtreats

In the first post in this series, I discussed Freire v. Keystone Title Settlement Services, in which the LinkedIn profile of the plaintiff’s manager was argued to constitute evidence that two entities should be considered a single, integrated enterprise. In the second post, I discussed Steinberg v. Young, in which the court found that the LinkedIn profiles of 5 employees constituted evidence that the defendant was the successor entity of the company that previously had employed the plaintiff.

In this post, I discuss a case involving the LinkedIn profile as the basis for holding an employer liable for online comments of another party.

3. Agency Relationship

In Park W. Galleries, Inc. v. Hochman, the defendant filed a counter-claim against the plaintiff-art gallery, alleging that an individual, acting on behalf of the gallery, posted defamatory statements about the gallery on his blog.  In response, the art gallery argued that there was no evidence to show that the individuals who made the statements were acting on the gallery's behalf.  The gallery's CEO testified that individual was not and had never been an agent or employee of the gallery and that the gallery had never authorized the individual to speak on its behalf. 

The test to determine whether there is an agency relationship such that an entity may be held liable for an individual's actions or statements is whether the principal has a right to control the actions of the agent.  Under Michigan law, if there is any evidence to support the existence of an agency relationship, the question cannot be decided by the court but, instead, must be presented to the jury. 

The court determined that there was sufficient evidence to support the existence of an agency relationship between one of the individuals when he made the allegedly defamatory statement.  The evidence cited by the court was a posting on the individual's LinkedIn profile, on which he had identified himself as a "Consultant/Writer at Park West Gallery."  In the "Experience" section of his profile, his profile included experience as a "Public Relations/Blogger/Writer" for the gallery.  And, according to the gallery's website, the individual was editing a book to celebrate the gallery's 40th anniversary. 

Based on this evidence, the court concluded that the individual could have been speaking on behalf at the behest of the gallery when he posted the allegedly defamatory statements on his blog.

No. 08-122471, 2010 U.S. Dist. LEXIS 12488, at *15 (E.D. Mich. Feb. 12, 2010).

See also:

LinkedIn Lessons for Employers: Part 1 (Integrated-Enterprise Status)

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

Another Day, Another NLRB Complaint Over Facebook Firing

Posted by Molly DiBiancaOn May 24, 2011In: Social Media in the Workplace, Union and Labor Issues

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Law360 reports (subscription required), that the Chicago Regional Office of National Labor Relations Board (NLRB) issued a complaint last week against Karl Knauz Motors, Inc., alleging that it violated the National Labor Relations Act NLRB white (NLRA), when it fired an employee for comments he posted on his Facebook page.  The allegations in the complaint are minimal at best.  In sum, it claims that:

On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees' concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

It then states that Becker was terminated a week later and claims that the termination was intended to discourage employees from engaging in concerted activities. 

A hearing is scheduled to be heard on July 21, 2011. 

This is just the latest in a seeming flurry of activity involving the NLRB's interest in so-called "Facebook Firings," including one reported last week issued by the Manhattan Office, the threatened complaint that never materialized against Thomson-Reuters, and the NLRB's GC's determination that the termination of an Arizona journalist for his Twitter comments did not violate the NLRA.

Can An Employer Sue an Employee for On-Duty Facebook Use?

Posted by Molly DiBiancaOn May 24, 2011In: Privacy In the Workplace

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Probably not successfully.  But that didn't stop one employer from trying. In Lee v. PMSI, Inc., the plaintiff sued her former employer for pregnancy discrimination. The employer filed a counterclaim under the Computer Fraud and Abuse Act (CFAA).  The basis for the claim was that Lee engaged in "excessive internet usage" and "visit[ed] personal websites such as Facebook and monitor[ed] and [sent] personal email through her Verizon web mail account."  That's right--the employer sued its former employee on the basis that the employee's on-duty Facebook use constituted a violation of the CFAA. FB Logo

As you may imagine, the federal district court did not find merit in this claim.  U.S. District Judge Steven D. Merryday, of the Middle District of Florida, Tampa Division, granted the employee's motion to dismiss, finding that the employer had failed to allege either of the two bases for a CFAA violation--that the employee caused damages to the computer system or that the employee obtained information to which she was not entitled.

Additionally, the employer failed to allege that the employee "exceeded authorized access."  This prong has been the sticking point for those courts that are split as to whether the CFAA--a statute intended for use in the prosecution of computer hackers--should be applied in the employment context.  Although there is a split of authority on when it is that a disloyal employee loses her authorization to access the employer's computer network, these facts seem to go beyond any reasonable interpretation of the statute. 

I suppose we could give the employer some credit for its attempted "novel" application of the CFAA.  But I think more credit should be allocated to the court for rightly applying what can be a complicated law. 

Thanks to Michael R. Greco at Fisher & Phillips, LLP's Non-Compete and Trade Secrets Blog, whose post alerted me to the case.

See also:


9th Circuit Applies CFAA to Disloyal Employee

Putting the Computer Fraud Abuse Act to Work for Employers

LinkedIn Lessons for Employers: Part 2

Posted by Molly DiBiancaOn May 24, 2011In: Social Media in the Workplace

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In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role in determining the case’s outcome. In the first post in this series, I discussed Freire v. Keystone Title Settlement Services, in which the LinkedIn profile of the plaintiff’s manager was argued to constitute evidence that two entities should be considered a single, integrated enterprise. In this post, I look at a similar case involving successor liability. linkedin logo by webtreats

2. Successor Liability

In Steinberg v. Young, the plaintiff had alleged breach of his employment contract. The claim went to arbitration and the plaintiff won. When he tried to collect on the judgment, though, he claimed that the defendant—the owner or majority shareholder of several corporate entities, including the one that had lost in arbitration—had been fraudulently transferring assets out of the various entities to defeat the plaintiff’s collection efforts.

The plaintiff pursued a claim in federal court on the basis of the state’s fraudulent-conveyances law and under a theory of successor liability. On the successor-liability claim, the court found that there was evidence to support that the defendant was the “mere continuation” of one of the corporate entities. In denying the defendant’s motion for summary judgment, the court looked to the LinkedIn profiles of at least 5 employees of the original company who had continued with the successor company.

No. 09-11836, 2010 U.S. Dist. LEXIS 31996, at *20-22 (E.D. Mich. Mar. 31, 2010).

Thus, unlike in the Freire decision reviewed in yesterday’s post, here the court found that evidence from LinkedIn did constitute evidence sufficient to show the legal relationship between two entities.

See, LinkedIn Lessons for Employers: Part 1

LinkedIn Lessons for Employers: Part 1

Posted by Molly DiBiancaOn May 23, 2011In: Social Media in the Workplace

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Last week, LinkedIn debuted on the NYSE with an initial public offering of stock at $45 a share. The share price climbed on Friday, sending the social-networking company’s market value to $9.1 billion. According to the Washington Post, this is approximately 24 times its 2011 revenue. linkedin logo by webtreats

Employers like to think of LinkedIn as the “good son” among social-networking sites, especially as compared to Facebook.  LinkedIn is marketed to professionals and is used widely for recruiting. It also can be used as an online rolodex, enabling professionals to connect with others in their industry and get automatic updates when your “connections’” contact information changes.

In light of the recent LinkedIn IPO, it seems like a good time to give some thought to some of the employment-law implications of this darling of the social-networking sites. In this series, I'll review some of the employment-law cases in which LinkedIn has played a substantive role.  In the last post in the series, I'll discuss some of the ways that the lessons from these cases can be applied to an employer's social-media policy. 

1.  Integrated Enterprise:  Will the Real Employer Please Stand Up?

In Freire v. Keystone Title Settlement Services, the plaintiff sued her former employer, alleging unlawful harassment and discrimination. The employer argued, among other things, that it did not employ the minimum number of employees to subject it to liability under Title VII. The plaintiff countered that the employer and its parent company operated as an integrated enterprise and, together, did employ the required minimum number of employees.

As evidence of the integrated nature of the two entities, the plaintiff introduced the LinkedIn profile of her former supervisor, which stated that the supervisor was employed by the parent company. The defendant countered with an affidavit by the supervisor, which stated that the supervisor had mistakenly used the wrong company name as her employer and that she had completed that portion of her LinkedIn profile before the relevant period.

No. AW-08-2976, 2009 U.S. Dist. LEXIS 121190, at *10-11 (D. Md. Dec. 30, 2009), aff’d 2010 U.S. App. LEXIS 15817 (4th Cir. July 29, 2010).

NLRB vs. Social Media: The Battle Continues

Posted by Molly DiBiancaOn May 19, 2011In: Social Media in the Workplace, Union and Labor Issues

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The National Labor Relations Board (NLRB) has announced that, on May 9, it issued a complaint against a non-profit for allegedly terminating five employees for comments they made on Facebook.  This is the latest development in what appears to be the final frontier of social media and employment law.  NLRB white

Seth Borden at Labor Relations Today gives a more detailed account of the facts as alleged by the NLRB but the short version is this:

Employee posts comments on Facebook.  Co-workers respond to the comments with comments about their own job performance staffing issues. Employer fires co-workers for the posts, which the employer contends constituted unlawful harassment.

A hearing is set for June 22, 2011.  This is only the second time that the NLRB has issued a complaint--the first was in the American Medical Response (AMR) case, which was settled before a decision was reached.  That complaint was issued by the NLRB's Connecticut Regional Office. 

Although a settlement was reached before a complaint was issued, the NLRB's Manhattan Regional Office announced earlier this month that it intended to file a complaint against Thomson-Reuters for allegedly reprimanding an employee for complaining about the company on Twitter.  However, just last week, the NLRB's General Counsel's Division of Advice concluded that the termination of an Arizona newspaper reporter for posting comments critical of his employer on Twitter was lawful

Adding yet another layer to the analysis of union rights and social media, on April 12, the NLRB's Office of General Counsel announced that social-media disputes must be submitted to the Division of Advice due to the novel issues involved.  Yet, Philip Gordon, of Littler Mendelson, reported that the Director of the Connecticut Regional Office revealed that the Regional Offices, "at the direction of the Board's Acting General Counsel, are filing complaints to set the stage to reverse the Board's [] decision in Register Guard."

On one hand, it seems that the NLRB's General Counsel is taking a cautious approach to ensure consistency in this new area of the law.  On the other hand, though, it appears that the Regional Directors have been directed to take an aggressive approach to these issues, as certainly seems to be the case in the recent filing by the Manhattan Regional Office.

Stay tuned as the NLRB-vs.-social-media battle continues.

(Another) DOL Online Resource: OSHA Recordkeeping Tool

Posted by Molly DiBiancaOn May 19, 2011In: Resources

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The U.S. Department of Labor (DOL) continues in its initiative to provide employers and employees with online resources and tools designed, according to the DOL, "to help employers understand their responsibilities to report and record work-related injuries and illnesses" in accordance with OSHA regulations.  DOL 2 

From the DOL's press release announcing the new web tool:

The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness.  To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions. 

Some related resources:

OSHA Recordkeeping Rules CFR 1904

OSHA Recordkeeping Handbook

OSHA Recordkeeping-Related Letters of Interpretation


Of course, nothing can really top the DOL's Wage and Hour Division's new timekeeping app, which gives employees the ability to keep their own records of time worked, which may or may not match the records provided to the employer.

Delaware A.G. Appeals Tri-M Decision

Posted by Sheldon N. SandlerOn May 16, 2011In: Delaware Specific

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The Delaware Attorney General’s Office is seeking to appeal the Third Circuit’s ruling that Delaware’s labor apprentice law violated the commerce clause. That decision upheld an opinion in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware's Prevailing Wage Law discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay. After the Third Circuit’s ruling, Tri-M sought more than $190,000 in attorney’s fees and costs from the State, but that petition was stayed by the District Court while the State petitions the United States Supreme Court to review the Third Circuit’s ruling.

NLRB OKs Employee Termination for Twitter Posts

Posted by Molly DiBiancaOn May 13, 2011In: Social Media in the Workplace

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The NLRB's General Counsel's Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.

The employee was a public-safety reporter for a newspaper in Tucson, the Arizona Daily Star. The paper encouraged its reporters to use social media, including Twitter, to engage its readers.

In early 2010, the employee posted a tweet criticizing a headline written by another reporter. He was called for a meeting with Human Resources and was "encouraged" to discuss his concerns instead of airing them on Twitter. Later, the managing editor told him not to post grievances or otherwise comment about the paper "in any social-media forums that may damage the goodwill of the company."

The employee complied for a while but, eventually, gave in to the lure of Twitter and posted several comments critical of the paper. Not surprisingly, he was terminated as a result. The termination was submitted to the NLRB, thus resulting in the recent Advice Memorandum.

The key holding in the Memorandum is this: an employee who is "terminated for posting inappropriate and unprofessional tweets, after having been warned not to do so" does not violate the employee's NLRA rights. In short, the employee was fired for engaging in misconduct that, in and of itself, did not consitute protected concerted activity. Therefore, there was no basis to find a violation of the NLRA.

Porter Wright's always excellent Employer Law Report blog has a detailed summary of the decision, as well as a link to the Advice Memorandum. The case is Lee Enterps., Inc. d/b/a Arizona Daily Star, No. 28-CA-23267.

Location:E Vista Chino,Palm Springs,United States

Delaware's Civil Union Bill Is Signed Into Law

Posted by Adria B. MartinelliOn May 12, 2011In: Delaware Specific, Legislative Update

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Last night, Governor Markell signed Delaware's civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

FLSA Compliance: There's an app for that

Posted by Molly DiBiancaOn May 10, 2011In: Internet Resources, Wages and Benefits

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The Wage-and-Hour Division of the Department of Labor (DOL) has released an app called "DOL-Timesheet."  The app works on the iPad and iPhone but may later be released for Android and Blackberry. As described by the DOL:DOL Timesheet app

This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.  It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek.

The app does not handle tips, commissions, bonuses, deduction, holiday pay, shift differentials or other non-standard methods of pay.

One notable feature of the app is the ability to send a copy of the report via email.  This may be of particular use to employees who work "on the road" or even from home, especially if their time entries are sporadic.  For example, if an employee sends a series of emails from his iPhone at home, after the end of the normal business day, this may be a helpful way for him to record that time worked and communicate it to his employer.

To set up the app, the user is asked to enter the Employer name, the hourly rate of pay, and the start of the workweek.  (Picture at left).  A nifty little feature occurred when I entered $6.00 as the hourly rate.  A warning popped up, alerting me that I'd entered an amount less than the federal minimum wage.  (Picture at right).

DOL Timesheet appPicture3

The three screens below show how users can create a new timesheet; create a new time entry using either the timer or manually; and send the report via email.


There is also a glossary of wage-and-hour terms and, conveniently, contact information for the DOL's WHD.


Ah, technology.  Whatever will they think of next?

New Philly Law Limits Use of Criminal-Background Checks

Posted by Molly DiBiancaOn May 9, 2011In: Background Checks, Hiring

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Philadelphia is the latest city to prohibit employers from asking job applicants to disclose their criminal history. The Fair Criminal Record Screening Standards (PDF) was signed by Mayor Nutter on April 13, 2011, and goes into effect on July 13. The purpose of the new law is to increase employment opportunities for candidates who have a criminal history by ensuring that the candidate will be “judged on his or her own merit during the submission of the application and at least until the completion of one interview.”Criminal-History Law

The ordinance applies to the City of Philadelphia and private employers with at least 10 employees operating in the City. It contains two key prohibitions. First, employers may not ask candidates to disclose (or otherwise consider) any arrest that did not result in a conviction. Second, employers may not ask about any criminal convictions during the application process or during an initial interview. After the first interview, employers may ask the candidate about the candidate’s criminal history—but not arrest history. The ordinance provides for a fine of up to $2,000 per violation.

Employers operating within the City of Philadelphia should revise their job applications to eliminate any questions regarding an applicant’s criminal history. Employers who are not subject to the Ordinance, though, also may want to consider limiting their reliance upon applicant’s criminal backgrounds during the hiring process. The EEOC “discourages” employers from considering a candidate’s arrest records. The EEOC published an informal discussion letter in 2008 on the use of conviction records in hiring. And a study by Carnegie Mellon showed that convictions older than 5 years were not indicative of future behavior.

This type of prohibition, also known as "ban-the-box" legislation, has been adopted by several states and cities around the country.  A similar restriction has been to prohibit or limit employers' consideration of a candidate's credit history as part of the hiring decision.  At last check, legislation was pending in approximately 16 states to prohibit employers from considering creditworthiness to varying degrees.  As the economic forecast continues to be grim and the number of unemployed remains high, it makes sense that state and local governments will continue to take legislative measures that impact the hiring process. 

9th Circuit Applies CFAA to Disloyal Employee

Posted by Molly DiBiancaOn May 9, 2011In: Privacy In the Workplace

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Employee theft of documents is a serious issue today. More and more often, employers discover that, before exiting, a former employee took with him (often by forwarding himself via email), many of the company’s confidential documents. The employer has limited ways to respond. If the employee refuses to comply with the employer’s demand to return the documents, it may be necessary to file suit.keyboard alert

One of the claims that an employer may bring is under the federal Computer Fraud and Abuse Act (CFAA). The CFAA is also a criminal statute, originally designed to target computer hackers—not disloyal employees. And some jurisdictions have rejected claims seeking to apply the CFAA to the employment context. The leading case finding that the CFAA can be applied to the disloyal employee is International Airport Centers, LLC v. Citrin, which was decided by the Seventh Circuit in 2006. The key to the Citrin decision and others like it is a determination that, although the employee may have been “authorized” to access the employer’s files initially, that authorization is automatically revoked once the employee becomes disloyal. Any access after this point is, by definition, “in excess” of the authorization previously provided.

Three years later, in 2009, the Ninth Circuit rejected the Seventh Circuit’s Citrin analysis, finding, instead, that an employee’s authorization to access his employer’s computer network is not revoked automatically when the employee becomes disloyal to his employer. [1] The Brekka decision held that accessing and emailing the employer’s files for a purpose contrary to the employer’s interests, alone, did not violate the CFAA.

In April, the Ninth Circuit decided United States v. Nosal (PDF), which substantially limits the Brekka decision. In Nosal, the court held that, where an employer has placed limits on the employee’s “permission to use” the computer and the employee exceeds those limits, the CFAA has been violated. The court distinguished this from Brekka, in which the employee’s access was unlimited, whereas, in Nosal, there was an employee agreement warning employees that violation of the company’s computer-usage policy could lead to disciplinary action or criminal prosecution.

In Nosal, the defendant-employee worked for an executive-search firm. When he left, he executed a one-year non-compete agreement. Shortly thereafter, he decided to start a competing business and enlisted some of his former coworkers to use their accounts to access confidential information for him from the company’s computer network. The employees were authorized to access the data—but only on behalf of their employer and only for legitimate business purposes. Thus, when the employees transmitted the data to Nosal, they were acting beyond the scope of their authorization.

Although this decision is an important victory for employers, it does have its limits. For a violation of the CFAA to occur, according to the court’s opinion in Nosal, the employer must have placed restrictions on the employee’s use. A well-drafted permissible-use policy is likely a necessary element of a successful CFAA claim in the Ninth Circuit, as evidence of steps taken by the employer to protect its data and files.

[1] LVRC Holdings, LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009).

See also, our previous posts:

Should Your Social-Media Policy Address Off-Duty Conduct?

Posted by Molly DiBiancaOn May 6, 2011In: Social Media in the Workplace

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Kent County, Delaware is considering a social-media policy. And, boy oh boy, is it causing quite the stir. Apparently, some opponents only read the headline of the article before concluding that the county is trying to ban employees' use of social media altogether.  Of course, that's not the case.  The policy does ban use of social media by employees at work--an idea most taxpayers may appreciate. user manual

Other opponents, though, take issue with the part of the proposed policy that, according to the News Journal, would “bar workers from posting materials on or off the job that disparage co-workers, disclose confidential information.”  The policy also would create a “duty to report inappropriate use of social media by co-workers or supervisors.”

The article says that employee representatives supported the county’s effort to prevent co-worker harassment or threats of violence but were concerned about off-duty restrictions.

So, is there anything for employer to be concerned about when it comes to employees’ off-duty use of social media?

Yes. Yes. Yes. And, yes.

Maybe an example will shed some light on the risks that, presumably, the County is trying to trying to prevent.

Off-Duty Conduct Counts

Consider the story of Mike Bacsik, MLB pitcher-turned-radio producer. In April of last year, Bacsik tweeted while watching a Mavericks-Spurs game. When a Mavericks player was ejected, Bacsik, a Mavericks fan, tweeted: “Congrats to all the dirty mexicans in San Antonio.” He was suspended and later fired for the racist comment.

Had he not been let go, though, his employer would have faced significant legal risks due to Bacsik’s tweet. Most obviously, it would have sent a message to employees (and listeners) that the station tolerated racist statements and employees who make them. Following that rational conclusion, it would not be a far jump to conclude that the station also tolerated racism in the workplace.

You can bet that, if an employee later sued the station for race discrimination, the employee would have pointed to Bacsik’s tweet as evidence in support of the claim. The fact that it was made from Bacsik’s personal Twitter account is irrelevant—what is said outside the workplace is evidence, period.

In an age-discrimination case, a supervisor’s statement about having to eat Thanksgiving dinner with the “old geezers” was used as evidence to support the employee’s claim of age bias. The fact that the employee was not present at his supervisor’s Thanksgiving dinner to hear the comment was irrelevant—as a supervisor, everything you say—whether it is in the workplace, during off-duty time, or even at a holiday meal—may be imputed to the employer for purposes of proving workplace discrimination.

The Duty-to-Report Requirement Is Essential

The reporting requirement also has some in a tailspin.  A duty-to-report provision is an absolute necessity in any social-media policy I write. Employers will be held liable for unlawful harassment that they know or should know is going on.  If an employee is being harassed online by another employee, and "everyone" knows about it, the employer will be held liable.

For example, if coworkers know about the harassment because it's taking place on Facebook, and the coworkers are friends with the harasser and the employee being harassed, the employer may be held liable because it "should have known" that the harassment was occurring.  Once you know (or should know), the employer has a duty to immediately act to stop the unlawful harassment.

There are only two ways that an employer can satisfy this obligation.  First, the employer can monitor employees' online activity.  This is not just ineffective but it's also far too intrusive. (Can you imagine what the policy critics would say to that idea?!)  Second, the employer can include a duty-to-report provision that requires employees who know about a policy violation to report it, thereby giving the employer the opportunity to take steps to correct it immediately. 

The opponents of the proposed policy who contend that it goes too far by addressing conduct that occurs during non-working time should consider attending our annual Employment Law Seminar next week, where they can learn about the many, many risks that can befall an employer as a result of employees' off-duty social-media activities.

Drafting Considerations for Social-Media Policies

Posted by Molly DiBiancaOn May 4, 2011In: Policies, Social Media in the Workplace

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Employers who are preparing to adopt a social-media policy would be well advised to read an excellent post on, titled, HOW TO: Get Your Employees On Board With Your Social Media Policy.  The piece, which is written by Maria Ogneva, who is the Head of Community at Yammer, offers some terrific suggestions for making your social-media policy work.  

She makes a number of suggestions about ways to implement a social-media policy effectively.  All of the suggestions are top-notch.  But a more important message underlying the post is this: no matter how well drafted your social-media policy is, it’s worth nothing unless your employees know about and understand it.  Compliance is always the single most important objective to consider when drafting any kind of workplace policy.  The goal for a social-media policy is no different.

The purpose is not to have a written document that you can use as a basis for disciplining employees when they violate the rules you’ve prescribed.  Instead, you’re trying to avoid having employees violate those rules in the first place.  The key to compliance is education.  Making sure your workforce is not only aware of the policy (which is, by the way, an important component of the process), but, also, that they truly understand the policy and what it is trying to prevent and protect against. 

Consider engaging in some dialogue with employees as part of the roll-out of your policy.  You may be surprised at the insight they’re able to offer.

Jumping the Gun on Employee Internet Activity

Posted by Lauren Moak RussellOn May 2, 2011In: Cases of Note, Electronic Monitoring

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A new decision from the Third Circuit Court of Appeals provides public employers with some additional guidance regarding employee internet activity. In the case of Beyer v. Duncannon Borough, police officer Eric Beyer was terminated from his position after he posted anonymous online comments, critical of the Duncannon Borough Council. More specifically, Beyer criticized the Council for its opposition to the purchase of new AR-15 rifles for the police camera

Upon his termination, Beyer filed a lawsuit against the Borough, alleging violation of his  First Amendment rights. Pursuant to the U.S. Supreme Court's decision in Garcetti v. Ceballos, a public employee's speech is only protected by the First Amendment if the employee (1) speaks as a citizen (2) on a matter of public concern. Applying this standard, the District Court dismissed Beyer's claim, holding that he was speaking in his official capacity as a police officer, not in his private capacity as a citizen. Beyer appealed the dismissal to the Third Circuit.

In reviewing Beyer's appeal, the Third Circuit placed significant emphasis on the nature of Beyer's speech--anonymous internet posts. The Court found that anonymous posting supported both prongs of the Garcetti analysis. First, the Court indicated that anonymous online postings are inconsistent with conduct performed in an official capacity. As a result, the Court found that it was more likely that Beyer was speaking as a private citizen. Second, the Court found that the broad dissemination of Beyer's statements over the internet supported the argument that he was speaking on a matter of public concern. Based on the foregoing, the Court reversed the District Court's dismissal.

So, what's a public employer to do? The Third Circuit's decision does not prohibit monitoring of employee internet activity pursuant to a reasonable policy. It does, however, limit a public employer's ability to discipline its employees for anonymous online activity critical of the employer. Going forward, public employers should be particularly careful of any disciplinary action taken in response to such conduct, and when in doubt consult an attorney.