November 2011 Archives

Ex-Employee Must Return Social-Media Log-In Info to Employer

Posted by Molly DiBiancaOn November 28, 2011In: Social Media in the Workplace

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What happens to an employer's social-media accounts when the employee tasked with managing those accounts leaves the organization? I asked that question in a recent post, Who Owns Your Company's Twitter Account? A recent case from the Southern District of New York, Ardis Health, LLC v. Nankivell, offers an answer.

Ardis, the employer, moved for a preliminary injunction against its former employee, Ashleigh Nankivell, seeking to require her to, among other things, return its log-in information for various websites. Nankivell had been employed as the company's Video and Social Media Producer, in which she was responsible for maintaining the company's websites, blogs, and social-media pages for marketing purposes. She was given and had sole control of all passwords and related information necessary to access the sites.

After her employment ended, Ardis demanded that Nankivell return the access information--since her departure, the employer had been unable to access the sites or update content.

The court found that the employer would be irreparably harmed if the access information was not returned prior to a final trial on the merits because, without that information, the employer precluded from continuously updating its profiles and pages and from reacting to online trends.

The employee argued that there was no irreparable harm because the pages had not been updated for two years prior to her termination. The Court rejected this argument, citing the fact that it was the defendant's responsibility to update the sites, so she could not use her own failure to perform her duties as a defense.

And, even if that was not the case, the Court continued, new opportunities may arise the employer would not be able to take advantage of due to the employee's withholding of the access information.

So, in short, in this case at least, the answer to the question, Who Owns the Company's Social Media Information?, is The Company.

Ardis Health, LLC v. Nankivell, 11 Civ. 50134 (NRB) (S.D.N.Y. Oct. 19, 2011).

3d Cir.: Employees Fired for Pornographic Emails Lose Age-Discrimination Case

Posted by Molly DiBiancaOn November 28, 2011In: Age (ADEA)

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Employee_Email.jpgEmployers can find comfort in a recent decision from the Third Circuit, which serves to remind us that we can (and should) discipline employees for policy violations--regardless of whether the employee is in a protected class.

In 2007, while investigating a complaint of sexual harassment, the employer discovered that six employees had regularly exchanged sexually explicit pictures via their company-provided email accounts. All six employees were immediately suspending pending further inquiry. Four of the six employees were subsequently terminated. Each of the terminated employees was in their late 50s or early 60s at the time they were fired.

The four employees then filed suit in federal court in the Western District of Pennsylvania, alleging that they were terminated because of their age in violation of the Age Discrimination in Employment Act ("ADEA"). The District Court granted summary judgment to the employer finding that the employees had failed to demonstrate that "but for" their ages, they would not have been fired. The employees appealed the decision to the U.S. Court of Appeals for the Third Circuit.

To carry their burden on appeal, the employees needed to offer evidence of age bias in order to show that the reason offered for their termination (i.e., the misuse of the company's email), was merely a pretext for unlawful discrimination. The employees contended that they could demonstrate pretext because they'd been subject to discrimination in the past. They alleged that the following incidents were representation of a culture of age bias:

  1. after asking one of the four employees, Magdic, if he was ready to retire, the company's CEO said, "it looks like you are ready to retire. You have gray hair and are fat;"

  2. one of the employees, Crossan, was transferred to a different position because the employer wanted "new blood" in the department;

  3. the CEO mentioned the need to recruit a "younger workforce;" and

  4. during meetings, older supervisors sat at one end of the table and were routinely interrupted when they tried to speak, whereas younger employees were encouraged to speak.

The Third Circuit rejected the various evidence proffered by the employees, finding each to be either a stray remarks that were "completely unrelated" to the investigation of the employees' violation of the company's email policy.

Hodczak v. Latrobe Specialty Steel Co., No. 11-1085 (3d Cir. Nov. 18, 2011).

HR's Worst (and Most Costly) Mistake

Posted by Molly DiBiancaOn November 22, 2011In:

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What is the most expensive mistake regularly made by front-line managers and supervisors? Well, it depends. At least that's the answer you'll get when you ask a panel of lawyers. Ask 4 lawyers, get 4 different answers, each right in different ways. Here's the short version:

(1) Failure to engage in the interactive process required by the ADA;
(2) Failure to maintain the public-access file for H1B determinations;
(3) Failure to limit who knows of a complaint of discrimination; and
(4) Failure to document.

For the full version, check out the BLR article, HR's Worst--and Potentially Mosts Expensive--Mistakes.

Who Owns Your Company's Twitter Account?

Posted by Molly DiBiancaOn November 17, 2011In: Social Media in the Workplace

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Many employers use social media for a variety of purposes. I am currently in Las Vegas to speak at the Advanced Employment Issues Symposium, where there will be several sessions on how best utilize social media for recruiting and hiring, employee engagement, and as a corporate-communications tool. I'm looking forward to hear about the ways that employers can take advantage of sites like Twitter and LinkedIn for all of these purposes.

But what happens after you put these tools to work? In other words, if you hire a social-media specialist to use Twitter to promote your business or even if you authorize an employee to use Twitter as part of his or her job (i.e., to recruit employees), what happens when that employee leaves for a new employer? Do you own the Twitter account?

I'd bet that many of us would guess that you would--that you (the employer) authorized the employee to start the account on the organization's behalf and that you would expect the employee to return the account, so to speak, at the end of his employment.

And that's all fine and well, provided that the employee agrees. But what if he or she does not agree? What if the employee decides that he wants to take the account with him to his next job. I mean, gosh, he put so much work into building up all of those followers, right? At least that's what the employee will surely say!

According to FindLaw, that seems to be the issue in the case of one employer, PhoneDog, who has filed suit against its former employee, Noah Kravitz. During his employment with PhoneDog, Kravitz tweeted under the handle @PhoneDog_Noah. When he quit, he changed the account name to @noahkravitz and has refused the company's requests for him to relinquish his use of the account. In its suit, PhoneDog alleges that Kravitz's use of the account consitutes misappropriation of trade secrets, interference with economic advantage, and conversion (i.e., theft).

Whether the claims will succeed is almost a side issue--there are much more immediate considerations at play. For example, even if the company were to win at trial, any benefit of the account would, by that point, likely be lost. All of the followers that PhoneDog did have would either have stopped following the account or no longer be interested in the PhoneDog perspective--by that point, they'd be more interested in the Noah Kravitz version. And, in the meantime, PhoneDog would have already had to start all over trying to build a new following.

For any company considering implementing social media as a communications, PR, or HR tool, this case should serve as an excellent reminder of the importance of planning for the worst. Consider now who owns what in the social-media realm and then put it in writing and communicate it with any employee who is granted access to the social-media accounts. Letting the ownership of social-media accounts wait until a crisis arises is never a good idea.

Settling a Discrimination or Harassment Lawsuit

Posted by Molly DiBiancaOn November 14, 2011In: Discrimination & Harassment

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GOP presidential contender Herman Cain has been in the news for more than his political platform recently. Instead of addressing issues like job creation, Cain has been facing tough questions about on-the-job harassment. Specifically, Cain is having to deal with charges of unlawful harassment leveled against him when he was the head of the National Restaurant Association in the 1990s.

There likely are multiple lessons that can be learned from this story but I'll offer you just one. In short, employers should not dissuade this news story from settling a lawsuit or charge of discrimination brought by a current or former employee.

Contrary to what some of the pundits may claim, lots of people and businesses settle lawsuits even though they know they've done nothing wrong. This is the reality of today's litigious society. There are a multitude of factors that get weighed when deciding whether and when to settle a lawsuit. But the equation is always based on business factors and is, by no means, an indication of "guilt" or "innocence."

In fact, most settlement agreements include a confidentiality provision, whereby one or both sides agree not to disclose the terms of the settlement or to discuss the facts underlying the lawsuit. Sometimes, though, this is not the case, and, for a variety of reasons, the parties may agree in advance to what will be said, thereby ensuring that neither steps over the line and leaving no room for misunderstanding.

Which brings me back to Mr. Cain's story. The individual who is claiming that she was harassed by Mr. Cain apparently entered into a settlement agreement to resolve the matter. It seems that, pursuant to the agreement, she received a settlement payment in exchange for her dropping her claims. Presumably, the agreement also included a confidentiality provision. And, presumably, she violated the provision by releasing information about her claim or the settlement. If that is the case, and she did renege on her promise, those who are following the story should consider how reliable the source really is.

But employers should, in my opinion, disregard the story altogether for the purposes of deciding whether or not to settle a lawsuit or potential lawsuit. Stick to the facts as applied to your particular business at this particular time. Settling a lawsuit is not, contrary to what some of the pundits might have us believe, an indicator of wrongdoing.

No 1st Amendment Protection for Teacher's Facebook Posts

Posted by Michael StaffordOn November 11, 2011In: Public Sector, Social Media in the Workplace

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chalkboard desk green.jpgFacebook has landed another public school teacher in hot water. An administrative law judge in New Jersey has recommended that a school district terminate Jennifer O'Brien for her Facebook posts, in which she referred to her first-grade students in Patterson, New Jersey as "future criminals" and analogizing her job to being a "warden" in a Facebook post.

According to the NSBA, parents initially discovered and reported the teacher's Facebook musings.
In the words of the ALJ, the teacher "demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone." In the ALJ's view, the district's need to operate efficiently trumped any free speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

The lesson here is clear- exercise good judgment when using social media and remember, the world is watching!

When Employees Occupy Off-Duty

Posted by Molly DiBiancaOn November 9, 2011In: Social Media in the Workplace

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Now-former NPR host, Lisa Simeone, was terminated from her contract when she was seen at an Occupy D.C. protest. A conservative website questioned her presence, claiming that it violated NPR's ethics policy, reports the Baltimore Sun.

So, what's the problem? Image. NPR is partially subsidized with taxpayer funds and works hard to ensure that it is seen as a neutral news source. Simeone, by virtue of being a host on public radio, is a public face, or voice as it were, of NPR. An agency whose image is based on political neutrality. An agent of the agency who publicly takes a political position. It doesn't work.

Or at least that's what NPR would likely argue. Which is why Ms. Simeone is no longer a freelancer for NPR.

When Plaintiffs Post About Their Case on Facebook

Posted by Molly DiBiancaOn November 2, 2011In: Social Media in the Workplace

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In April 2011, a jury awarded Shana Maron $86,000, after finding that she was paid less than her former male colleagues in Virginia Tech's Office of University Development. In June, U.S. District Court Judge James Turk threw out the verdict and ordered a new trial, reports

The plaintiff was not happy about the judge's decision. So she did exactly what we would expect--she posted about it on Facebook, writing, "What's the law really worth when you can make it up as you go?" and "Turk is a Turkey." She later added, "The jury spoke, Tech lost, Turk is a biased bully, and I will still prevail."

Sure enough, one of Maron's Facebook friends reported the posts to Virginia Tech's lawyers. And, sure enough, they sought a court order seeking to compel Maron to turn over all of her Facebook postings about the case.

Why would they want to know what the plaintiff had to say during the first trial? Maybe because they thought there could be evidence that could serve as the basis for a mistrial. Or, more likely, maybe the hope to find comments she made that could be used to impeach her during the second trial.

The judge, though, didn't buy it. He denied Virginia Tech's motion on October 20, 2011, ruling that the Facebook posts (assuming they do exist), were not material to Maron's Equal Pay Act claim.

So, what do we learn from this case? First, for individuals who are parties to a suit (and their counsel), silence is golden. And silence includes Facebook silence. I've had several interesting discussions with other attorneys about whether lawyers should monitor their clients' online activities during litigation. And several plaintiffs' lawyers I know have amended their retention agreements to reflect a promise by their clients that they will refrain from posting anything about the case in any online forum, including Facebook. Second, employers' lawyers should consider whether they should monitor plaintiffs' online activities throughout litigation.