June 2011 Archives

Pa. Court Finds Facebook Posts to be Discoverable Evidence

Posted by Lauren Moak RussellOn June 30, 2011In: Social Media in the Workplace

Email This Post | Print this Post

Social media as evidence in an employment lawsuit is an area of the law that is, to put it mildly, unsettled.  A recent decision by a Pennsylvania state court weighs in on the side of parties seeking to discover information contained on social-media sites of other parties. In the case of Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. CP May 19, 2011), the court held that a person who voluntarily posts photos or information to a social-networking profile has no reasonable expectation of privacy in those posts that would prevent their discovery.

The plaintiff-employee, Zimmerman, sued his employer after he was injured on the job by a fork lift. Zimmerman sought lost wages, as well as compensation for pain and suffering as a result of the “permanent diminution in [his] ability to enjoy life and life’s pleasures.” In support of his damages claim, Zimmerman alleged during a deposition that he could no longer wear shorts because he was so embarrassed by scarring on his leg.

Subsequently, counsel for Weis Markets did what all employment attorneys should do—they checked Facebook. On public portions of Zimmerman’s Facebook and MySpace pages, he had posted pictures of himself wearing shorts with his scars clearly visible. Based on the public information available, Weis Markets sought access to the private portions of Zimmerman’s profiles. In his effort to protect this information, Zimmerman claimed that his privacy interest outweighed the need to obtain relevant information in discovery.

In addressing the dispute, the Court relied on three principles: “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.”

The Court then turned to other cases that emphasized the irony of allowing a party to litigation to hide behind privacy settings on a website where the primary purpose of the website is to share information. Given the intent behind social networking sites—the voluntary disclosure of private information—the Court concluded that Zimmerman did not have a reasonable expectation of privacy as to the information posted there, and consequently could not assert his privacy interest as a defense to discovery. This is particularly true since it was Zimmerman himself who raised the issue of his physical condition by initiating the litigation. Consequently, the Court ordered Zimmerman to provide opposing counsel with his passwords, user names, and log-in names for all MySpace and Facebook accounts he maintained.

The Court did note, however, that its opinion did not open the door to fishing expeditions into the private portions of any party’s social networking accounts. The Court emphasized that this case was distinguished by the fact that Weis Markets was able to meet a threshold burden of showing that publicly accessible portions of the site contained relevant information, allowing an inference that similar information existed in private portions of the site.

LinkedIn Lessons for Employers: Part 5

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

Email This Post | Print this Post

So far in this series, we've seen how an employee's LinkedIn profile can (at least arguably) constitute evidence of the following:

In this post, we'll look at the potential implications of a former employee's inaccurate LinkedIn profile.

linkedin logo by webtreats

In Asanov v. Legeido, a former employee posted, inaccurately, on his LinkedIn profile that he was the owner of the company by which he was previously employed.  The company alleged that the employee posted the inaccurate information in his profile to help his job search.  The company filed suit against the former employee alleging trademark infringement and intentional interference with its prospective business relations.

No. 3:07-1288, 2008 WL 481426, at *3 (M.D. Tenn. Oct. 31, 2008).

Now comes the really important question--what's an employer to do?  There are two different problems to address.  First, the current employee who inaccurately states his job title on his LinkedIn profile (i.e., VP of Sales, instead of Inside Sales Manager).  Second, there's the former employee whose LinkedIn profile describes his job duties and/or title held while employed by you as different (and, presumably, "better"), than they actually were.  Here are some thoughts on both problems.

The Current Employee

In the event that you discover that a current employee has slightly "enhanced" his job title or responsibilities in his LinkedIn profile, handle it in exactly the same way you would handle a "offline" problem (as opposed to an online one).

In other words, put aside for a minute the context--a professional social-networking site.  And turn, instead, to the real problem.  The real problem is that you've got an employee telling lies.  It's irrelevant that the lie is being told in cyberspace. 

So what would you do if he spoke the lie instead of posting it?  It almost certainly depends.  You may not care one bit.  Fine.  You may care a lot, particularly because it relates to his employment and, as we've seen in the past several posts--your employee's LinkedIn posts can be used against you.

The answer, then, is simple--deal with it in exactly the same way you would deal with it had you been told that he made the misstatement at a local ball game or at lunch with clients. 

The Former Employee

This is more difficult to deal with only because the employee is no longer within your "control;" in other words, you no longer have the leverage of termination or discipline since he no longer works with you.

The first step probably is to contact the employee directly and ask that he correct the inaccuracy.  If he refuses or fails to comply, you may want to involve legal counsel, depending on the nature of the misrepresentation.

One preventative step to consider is whether you want to address the issue at the exit interview or in a post-termination letter.  In other words, it may be wise to "gently remind" your recently separated employees to change their online social-networking profiles to reflect the change. 

The next question, then, is whether you should be monitoring the profiles of those individuals.  For employees who worked in sales or other direct-client positions, it may not be a bad idea.  Of course, it means one more commitment of your valuable time but, for certain positions, it could help to prevent a number of potential problems.

See also these prior, related posts:

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

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

LinkedIn Lessons for Employers: Part 3 (Agency Liability)

LinkedIn Lessons for Employers: Part 4 (Trade Secrets)

Waiting to Exhale: Delaware’s Medical-Marijuana Law

Posted by Michael P. StaffordOn June 14, 2011In: Delaware Specific, Drug Testing, Legislative Update

Email This Post | Print this Post

Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996.  This year, the Delaware General Assembly began experimenting with marijuana legislation.  With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes. medical marijuana

S.B. 17 shares many common elements with medicinal marijuana legislation across the country.  But there are some key differences that could have a major impact on Delaware employers.  Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card.  Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.

Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers."  There will be only one state licensed dispensary in each county.  The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.

Unlike many other states' medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.

This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test.  Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.

Continue reading . . .

Continue reading "Waiting to Exhale: Delaware’s Medical-Marijuana Law" »

Friday Tweet Gets Social-Media Pro Fired

Posted by Molly DiBiancaOn June 8, 2011In: Social Media in the Workplace

Email This Post | Print this Post

Stories of employees who get fired for exercising poor judgment in their use of social media constantly make the news.  There are too many to report, really.  But some can serve as valuable lessons, thereby warranting a bit of special attention.  Here's one such story, reported by My Fox Philly.comtwitter icon rounded square

Vanessa Williams was a social-media specialist with an economic development agency in Bethlehem, Pa.  That was, at least, until Friday, when she posted the following on the company's official Twitter account:

We start summer hours today. That means most of the staff leave at noon, many to hit the links. Do you observe summer hours?  What do you do?

Her (former) employer, the Lehigh Valley Economic Development Corp., is funded partly with tax revenue and is charged with helping bring business to the area.  Another user responded to the tweet and asked if economic development wouldn't be better served by having the agency's staff stay at work and off the links on Fridays. 

I suppose the lesson here, like the lesson in so many of these stories, is to never assume that you're "too smart" or "too experienced with social media" to make a mistake or have a lapse in judgment.  The casual nature that makes social media such an attractive form of communication is exactly what can make it so risky to use. In short, the moral of the story is to tweet with caution

LinkedIn Lessons for Employers: Part 4

Posted by Molly DiBiancaOn June 7, 2011In: Social Media in the Workplace

Email This Post | Print this Post

In this post, I continue my review of employment-law cases in which LinkedIn played a substantive role.  In the first post in the series, I discussed a case in which an employee's LinkedIn profile was argued to constitute evidence of a single, integrated enterprise.  In the second post, I discussed a case in which LinkedIn profiles were used to establish successor liability.  In the third post, I discussed the use of a LinkedIn profile to establish an employer's liability for the acts of its agent.  In this post, I discuss cases in which LinkedIn evidence was argued to constitute evidence in support of a claim for misappropriation of trade secrets. linkedin logo by webtreats

In Sasqua Group, Inc. v. Courtney, an employer sought an injunction against its former employee, who had left to open a competing business.  The employer alleged that its client database constituted a protectable trade secret.  But the court disagreed, giving credit to the testimony of the former employee that she could easily replicate the information contained on the database through Internet searches of LinkedIn, Facebook, and Bloomberg.

This case raises interesting questions about what steps employers should be taking to protect their client contact information from becoming publicly available and, more specifically, whether employers should consider a policy that addresses whether  an employee may or may not upload his work-related contacts to his LinkedIn profile. 

No. 09-cv-528 (ADS)(ETB), 2010 U.S. Dist. LEXIS 93442 (E.D.N.Y. Aug. 2, 2010) (report and recommendation), adopted, 2010 U.S. Dist. LEXIS 98621 (E.D.N.Y. Sept. 7, 2010).

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

LinkedIn Lessons for Employers: Part 2 (Successor Liability)

LinkedIn Lessons for Employers: Part 3 (Agency Liability)

3d Cir.: Enforceability of Non-Competes Where Employee Misclassified

Posted by Lauren Moak RussellOn June 3, 2011In: Cases of Note, Independent Contractors, Non-Compete Agreements

Email This Post | Print this Post

The Third Circuit gave employers new reasons to worry about misclassifying their employees in its decision in Figueroa v. Precision Surgical, Inc., (PDF), C.A. No. 10-4449.  A former employee brought suit seeking to invalidate the non-competition provision in his independent-contractor agreement (“ICA”).  The plaintiff alleged that his former employer had materially breached the contract and, therefore, could not enforce it against him. approved-stamp

During the course of his 6-years with the organization, the plaintiff's relationship became more like that of an independent contractor.  For example, the company required that the plaintiff: (1) devote 100% of his energy to selling the company's products; (2) report to his supervisors daily and attend monthly meetings; (3) abide by a dress code; and (4) obtain permission from before giving quotes to certain prospective customers.

As the supervision and reporting requirements became more onerous, the plaintiff objected and, eventually, requested a new contract that clarified his status as an independent contractor.  The company refused and stated that it intended to convert all sales positions to employees, eliminating all independent contractor positions.  When he refused to make the conversion to employee status, his contract was terminated. 

The employee brought sought suit seeking declaratory relief invalidating the non-compete provision in the agreement. The company filed a counter-claim alleging breach of the non-compete agreement based on the plaintiff's new contract position as a sales representative for a competitor.

The District Court denied the employer's request for a preliminary injunction, finding that the employer had more likely than not breached its obligations under the independent-contractor agreement.  The Third Circuit affirmed, finding that the requirements to which the plaintiff had objected were not consistent with requirements for an independent contractor.  As a result, the court held, the employer breached the agreement by treating the plaintiff as an employee. 

Well-informed employers understand the significance of properly classifying employees for tax and benefits purposes. The Third Circuit’s recent opinion gives employers another reason to avoid misclassifying their employees: failure to properly classify workers as employees or independent contractors may impact their ability to enforce restrictive covenants and non-compete agreements.