July 2012 Archives

When the EEOC Goes Too Far

Posted by Molly DiBiancaOn July 30, 2012In: EEOC Suits & Settlements

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What is an employer to do when an EEOC investigation goes beyond the bounds of reasonableness? Or when the EEOC's "conciliation" efforts seem more like a joke that a good-faith effort to resolve the claims. There have been a smattering of decisions in the past few years by courts across the country answering this question in a variety of different ways--some more favorable to the EEOC and others strongly in favor of the employer. For an excellent overview of this line of cases, see this post at the Hunton Employment and Labor Perspectives Blog.

A recent decision from the Middle District of North Carolina addressed a case involving a particularly disturbing set of facts. The timeline is complicated and, frankly, a bit depressing, so I'll summarize to spare you the gory detail.

While investigating a temporary staffing agency used by the employer, the EEOC came across what it contended was evidence that the employer favored Hispanic over non-Hispanic employees in its hiring decisions.

The EEOC filed a charge and initiated its own investigation (there was no Charging Party as is the norm). The investigation went on for more than four years, during which time the employer cooperated in full with the many, many requests for information propounded by the EEOC. To give you some perspective on the scope of the requests, the EEOC asked for and received so much data about the employer's workforce that it actually created its own database to house all of that information.


Finally, after years of investigation stops and starts, the EEOC issued a Letter of Determination in which it found that there was cause to believe that the employer had engaged in unlawful discrimination. The Letter, however, contained no explanation of the reasons for the EEOC's determinations.


The parties scheduled to meet for the mandatory conciliation but the EEOC canceled it when it was unable to provide the employer with any kind of damages calculation--kind of a necessary element for any productive settlement discussion. The EEOC eventually rescheduled the meeting but still could not produce the numbers requested by the employer or even identify all of the employees it contended had been affected by the allegedly discriminatory practices.

You'd think that, with that big 'ole database that it created, this wouldn't be such a difficult task!

The story goes on but, as promised, I'll spare you the rest. Needless to say, the EEOC was not deterred and eventually filed a complaint in federal court.

The employer moved to dismiss the complaint on several grounds. The court rejected most of the employer's arguments but did limit the size of the potential class. More interesting, though, was the court's discussion of the employer's motion for summary judgment, which was brought pursuant to the doctrine of laches.

This particular defense permits dismissal of a claim where the plaintiff unreasonably delayed in bringing its claim and where the delay prejudiced the defendant. Here, the court agreed that the EEOC had, indeed, been unreasonable in pursuing its claim. (Amen!) But the court found that there was not enough of a record to determine whether the employer had been prejudiced because of the delay.

I'm sure that there is not an employer in this country who would reach the same conclusion after reading the facts of the case but, putting that aside, . . . I'll turn to the good news. The court ordered the parties to engage in limited discovery only on the issue of prejudice. Once discovery on that issue is complete, the employer will have the opportunity to renew its motion seeking dismissal under the doctrine of laches. I'll be interested to see whether the case makes it to that stage--but I'd be willing to wage that it does. The EEOC tends not to let go once it gets its teeth sunk in. Still, I'll keep my fingers crossed that the employer makes out better on its renewed motion and maybe, if all goes really well, that it is awarded fees for its troubles.

EEOC v. PBM Graphics, Inc., No. 1:11-cv-805 (M.D.N.C. June 28, 2012).

Delaware Adds Public Shame to Its Arsenal of Weapons to Fight Misclassification

Posted by Adria B. MartinelliOn July 26, 2012In: Delaware Specific, Independent Contractors

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Employers in the construction industry should, by now, be painfully aware of the Delaware Workplace Fraud Act, signed into law in 2009. The Act imposes stiff penalties on construction-services employers who misclassify employees as "independent contractors."
Delaware Misclassification

As a result of amendments signed into law on July 12, 2012 (HB 222.pdf), the General Assembly has added more teeth to the law, in the form of public shame. Now, the name of any employer that has violated the Workplace Fraud Act will be posted on the Department of Labor's website for a period of 3 years from the date of the final determination.

The DDOL will maintain something akin to a sex offender registry for misclassification--or affix the offending contractor with a Scarlet "M"--to use a more literary analogy. Regardless of how you may feel about this new penalty or its effectiveness as a deterrent, it makes clear that this issue remains a top priority for legislators. So far, Delaware's attempts to expand this law to other industries have not succeeded but, if Delaware follows the national trend, this won't last long. All Delaware companies would be well advised to ensure that they are not wrongfully labeling employees as "independent contractors," in light of the state and national focus on this issue.

You Can Leave the Light On . . . But Be Sure to Log Out

Posted by Molly DiBiancaOn July 25, 2012In: Electronic Monitoring, Privacy In the Workplace, Privacy Rights of Employees

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You can, according to Joe Cocker, leave a light on. But, if you want a second opinion, I'd suggest that you be sure you log out before you leave the computer room. The case of discussion in today's post, Marcus v. Rogers, was brought by a group of New Jersey public-school teachers. The District made computers with Internet access available for teachers to use during breaks. One of the teachers was in the "computer lab" (my phrase) to check his email when he bumped the mouse connected to the computer next to the one he was using, turning off the screensaver. On the screen, the teacher saw the Yahoo! inbox of a colleague, who had, apparently, failed to log out of her email account before she left.

The teacher recognized his own name in the subject lines of several of the emails. Too curious to resist the temptation, he opened, read, and printed the emails that made reference to him planning to use them at an upcoming staff meeting.

When his colleague learned that her emails had been discovered, she filed suit. The case was tried before a jury, who found in favor of the nosy teacher-defendant. The colleague-plaintiff appealed the decision. On appeal, the question before the court was whether the defendant was acting "without authorization" or whether his access of the emails had "exceeded [his] authorization."

On the first question, the court held that the defendant was not "without authorization" when he accessed the emails because the emails in the inbox were available for anyone to see, since the colleague had failed to log out of her account.

The court upheld the jury's decision on the second question, as well. Specifically, the court found that the defendant had not exceed his authorization because his colleague had "tacitly" authorized the access when she failed to log out.

This is an interesting case that provides some good news for employers. Some good news--but not much. The question of whether an employer can access an employee's personal email account that the employee accessed through the employer's equipment is far from settled. The answer is very fact specific. For example, the answer may be different where, like here, the employee fails to log out when she leaves the computer, versus where the employer uses software to discover the employee's password and then uses the password to access the account.

The answer also can change depending on the jurisdiction. New Jersey has been an outlier in several of the employee-email cases and employers in other states should be cautious about relying on this decision for much more than its interesting set of facts.

[H/T Evan Brown, Internet Cases, which I first heard him discuss on a recent edition of This Week In Law]

Marcus v. Rogers, 2012 WL 2428046 (N.J.Super.A.D. June 28, 2012).

A True Story about Discovery of Old Tweets In Litigation

Posted by Molly DiBiancaOn July 25, 2012In: Social Media in the Workplace

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I solemnly swear that the story you are about to read is the truth and nothing but the truth. So help me, Las Vegas.

A few years ago, I went to Sin City for a quick trip to watch the "big football game" with friends. On Monday, I was standing in line to cash out my winnings from the craps table. There were several people in each of the several lines open at the cashier's window. Next to cashier's station was a large temporary sign that instructed patrons that football tickets could be redeemed only in the Sports Book--not in the casino.

In the line to my left were four men. I would have guessed them to be in their late 40s or early 50s. They each were dressed in a Hawaiian shirt, jeans, and loafers. They'd had a bit too much to drink and were a bit louder than was necessary. A couple of them were smoking cigars. They were, as my father would say "feeling their oats."

When they got to the front of the line, one of the men set a stack of football tickets on the counter. By this point, I almost expected the other men in the group, who were half-crazed with testosterone and alcohol, to join arms and begin to dance a jig in celebration of their coolness.

The female cashier on the other side of the window looked up slowly. Seeing the stack of football tickets in front of her, she pointed calmly towards the sign. The sign, you will recall, plainly stated that all football bets had to be redeemed in the Sports Book. In other words, she was saying, without saying a word, "Guys, you're in the wrong line. Turn around and head back to the Sports Book." .

One of the men, finally understanding the message, replied, "That's not an MP. That's a YP."

The cashier raised an eyebrow, as if to say, "What are you talking about, you fool?"

The man went on, "That's not my problem, that's your problem. T

The other three men giggled like school girls, positively giddy over their friend's hilarious retort.

The cashier said nothing. Slowly, she bent down, reaching under the counter. Slowly, she lifted up a small plastic sign and set it on the counter in front of her. Slowly, she looked up and stared, unflinching, at the male patron. The sign said, "Window Closed."

next window sign.jpg

The men, stunned and silent for a quick second, realized they'd been kicked out of line and had failed in their mission. Wild with fury, they proceeded to stomp their feet and through their hands in the air, much like the oomp-a-loompas in Willy Wonka's chocolate factory.

The cashier was, of course, unaffected. Cool as a cucumber, she stood there, behind her sign, staring at them blankly. Unable to get a reaction, the men gave up and stormed off towards the Sports Book.

And the crowd . . . went . . wild.

That may have been one of the funniest, most satisfying things I have ever witnessed. Really. Truly. It was, absolutely, that funny.

Now, you ask, what exactly does this story have to do with litigation, discovery, and Twitter? According to the NYT's Bits blog, Twitter is working on a feature that would enable users to download their entire personal archive--all of their tweets for the entire life of their account.

If the feature is released, discovery of a litigant's Twitter account would become far easier--a party would no longer need to subpoena Twitter to produce a user's past tweets. Instead, the party would make a document request to the other side and, to the extent the tweets are relevant, the litigant receiving the request would be obligated to produce them. The tweets would be, because of the new feature, in the litigant's "custody, control, or possession."

To put it differently, the production of past tweets would no longer be an "MP" but, instead, would become a "YP." Sounds just fine to me.

Delaware Law Protects Privacy of Student Facebook Posts

Posted by Molly DiBiancaOn July 24, 2012In: Privacy In the Workplace, Social Media in the Workplace

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Delaware's Workplace Privacy Act (H.B. 308), died with the end of the legislative session. As readers know from my several prior posts, I won't exactly be mourning the loss. The Bill's companion legislation, H.B. 309, did survive, however, passed by the State Senate during its final session. Although my attention has been focused on H.B. 308, which would have affected all employers operating in the State, H.B. 309 is worthy of discussion, as well.

If signed by Gov. Markell, H.B. 309 will prohibit post-secondary schools in Delaware from certain practices relating to student's social-media accounts. Specifically, the Bill will prohibit colleges and universities from:

  • requiring a student to turn over his or her Facebook username or password as a condition of obtaining or keeping a scholarship;

  • requiring a student to install social-media-monitoring software onto his or her personal phone or computer; and

  • requiring a student to accept a Facebook friend request from a school employee or other agent of the school.

Delaware is the first state in the country to pass such a law, although several similar Bills have been introduced in several states, as well as on Capital Hill. So what motivated this legislative initiative? Lest I not pretend to understand the political machine, I'll venture a general guess. Over the past few years, it has become increasingly common for schools to require students on athletic scholarships to be Facebook friends with their coaches, presumably so the coach can monitor the student's Facebook page.

For what exactly, I'm not entirely sure but I would guess that "scandalous" photos would be at the top of the list. How "scandalous" is defined, surely, varies by coach and school. I've also heard of this practice being adopted by high schools for their student athletes.

In April, I was invited to speak to a class of students at the University of Pennsylvania's Wharton School of Business. As I have in years past, I asked them whether the practice of "mandatory friending" was something they'd seen for student athletes. To my surprise, they said that mandatory friending was commonplace--and it was not limited to students on scholarship. Several members of the school's swim team were present and said that all swim-team members had to be Facebook friends with their coach, regardless of whether they were scholarship recipients.

I asked them whether they were offended by the practice or felt that it was an invasion of privacy. Again to my surprise, the answer was a resounding, "no." They said that they understood that the practice had a legitimate purpose--to prevent scandal to the swim team that could embarrass the school or, worse, cause the team to lose funding or other support. They also said that they didn't mind because they had nothing to be embarrassed about in the first place. They didn't engage in scandalous behavior and certainly didn't post any scandalous pictures of themselves on their social-networking profiles.

How mature, I thought.

So, if signed, how will the new law affect Delaware students? I have never heard reports of any of our State's post-secondary institutions engaging in either of the first two prohibited acts--demanding a student turn over his password or requiring that students install monitoring software. The third prohibited practice, though, mandatory friending, will have to cease to the extent it goes on in the first place.

And what will be the impact of this prohibition? According to the Wharton students, it would be detrimental only to the students. Here's the example they gave:

Student X, a member of the track team, sells anabolic steroids and "advertises" his conduct via Facebook. If the student-player is required to be Facebook friends with the team's coach, such conduct could be quickly detected and turned over to law enforcement. Without the watchful eyes of a school authority, it would be up to fellow students and team members to turn over the student to police or school authorities. Although it's nice to think that this would happen, I think it's fair to say that there's hardly any guarantees.

If, however, the student is arrested and a public scandal ensues, the team loses credibility and support from the university community, fellow students, and from donors. The loss of donor support can result in decreased funding to the program, which can, in turn, translate into less scholarship money. Which harms--not helps--student athletes.

Although I think the law has far fewer negative implications than H.B. 308 would have had, if it had been passed, I tend to think that they two Bills share at least one unfortunate similarity--both are the result of over-zealous legislative efforts. Contrary to the claims of the Bill's drafters, it seems to me that this is another example of legislating a problem that does not exist.

I suppose there is one problem that this law will correct, though. If you are a student at a Delaware college or university and want to do bad things and post about them on your Facebook page without consequence from your authority figures, this law will probably fix that problem. Congratulations, wrongdoers--you can count H.B. 309 as a big "W" in your Win column.

Separating Personal and Professional: There's an App for That

Posted by Molly DiBiancaOn July 22, 2012In: Electronic Monitoring, Policies, Privacy In the Workplace

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BYOD (short for "bring your own device"), is all the rage these days. Well, at least you'd think so based on all of the on-line talk about it. See, e.g., this post on the WSJ Blog, CIO Report. The basic idea is that employees are using their own electronic devices, such as smartphones and laptops, for work-related purposes. The causes of the BYOD movement are not entirely clear but one explanation is that employees are dissatisfied with the technology provided by their employer, so they just "bring their own" technology with them.

In any event, the reality is that, even in workplaces where no one brings their own device to work, many of us bring our employer-provided devices home with us. For example, it's not uncommon for an employee to have just one smartphone, through which he access both his personal and work email accounts. If the employer pays for or subsidizes the cost of the device and/or the monthly charges, there is an argument to be made that the employer may have some rights to access all data stored on the phone. Divid App.jpg

So what's an employee to do? Heaven forbid we had to carry around two phones everywhere we went. (This would particularly disastrous for airheads like me, who can barely remember to bring one cellphone with us when we leave the house). Well, according to the tech blog, Chip Chick, there is now, officially, an app for that. At least for Android users, anyway.

According to Chip Chick, the aptly named app, Device, "allows you to have your personal device and work device all in one." Users can keep the work side of the device encrypted and secure. If you're a really outstanding [read: show-off] employee, you can even limit the apps that will function on the work side to "business-oriented" apps. And, if you lose your phone (which I do no more than twice a year, I swear), Divide allows you to remotely wipe everything on the work side.

Delaware Employer Honored for Its Support of Military Employees

Posted by Molly DiBiancaOn July 19, 2012In: Delaware Specific, Uniformed Services (USERRA)

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Siemens Corporation was selected to receive the 2012 Secretary of Defense Employer Support Freedom Award.  The company was nominated by an Army Reservist with Siemens Healthcare Diagnostics of Glasgow, Delaware.  Only 15 employers nationwide will be honored with the award, the DoD’s highest recognition given to employers for exceptional support of Guard and Reserve employees.  The company was selected from more than 3,000 nominees. DoD

The employee who nominated Siemens reported that the company started an online Veteran’s Network to share job information and advice with military employees.  The company also partnered with the U.S. Army to allow soldiers to be stationed at Siemens facilities for training.  When Guard and Reserve members are deployed, supervisors maintain contact with them, and the company supports their families whenever they need assistance. In 2011, Siemens pledged to hire 600 veterans - actually hiring 631 in just 3 months. The company has pledged to hire 300 more veterans in 2012.

This year’s honorees will be recognized at an event in Washington, D.C. on September 20.  To learn more about the Freedom Award and this year’s recipients, visit the Freedom Award’s website.

The importance of our country’s military service members cannot be understated. As many service members are returning home, employers also should be particularly mindful of their reemployment and reinstatement obligations pursuant to USERRA.

See also

Two Delaware Employers Selected as Freedom Award Finalists

USERRA’s Statute of Limitations

Facebook Post Leads to Material-Witness Subpoena

Posted by Molly DiBiancaOn July 19, 2012In: Social Media in the Workplace

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Sean O’Sullivan of The News Journal alerted me to a dramatic story that unfolded in a Delaware courtroom yesterday.  A homicide trial was scheduled to begin yesterday in Superior Court but the jury had not been brought into the courtroom when the prosecutor stated that he needed to serve a subpoena on a material witness—who was in the courtroom, seated in the galley behind the defendant.  The prosecutor informed the judge that the witness would likely be hostile, so the State would require him to post a $1,000 bail to ensure his appearance, according to O’Sullivan.

Although this Perry-Mason-like moment is interesting in and of itself, I’m particularly fascinated by the next part of the story.  According to the O’Sullivan’s account of the events from yesterday, the prosecutor told the judge that the State’s interest in the witness was a result of two Facebook posts he’d made in which he referenced the defendant. Apparently, the witness called the defendant by a nickname that eye-witnesses had used to identify the shooter.  Those eyewitnesses did not know the real name of the perpetrator—only the nickname.  The State apparently believes that it may be able to tie the defendant to the crime with the help of those Facebook posts. 

The material witness was led out of the courtroom and the jury brought in. And so it goes, another day, another story of social-media in the courts.

Delaware to Get Its Very Own Background-Check Center

Posted by Molly DiBiancaOn July 18, 2012In: Background Checks, Delaware Specific, Legislative Update

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Delaware employers in the long-term- and community-care industries are subject to new background-check requirements.  The Delaware Code as amended by S.B. 216 to establish an electronic web-based “background check center” for employment in long-term care or community settings.  S.B. 216 was signed by Gov. Markell on July 5, 2012. 

Creation of a Background Check Center

The biggest change is the creation of a new “Background Check Center.”  The stated purpose of the Center is to “consolidate various data streams” from inside and outside the State of Delaware, as necessary to conduct a proper background search. 

In short, it requires covered employers to use the Center to perform mandatory criminal background checks for new employees.  Nursing or similar facilities, hospice, home-health, and home-care agencies are subject to the law. 

There will be a fee for the background check, which is subject to change each year based on the Center’s operating costs. The statute specifically provides that applicants will be provided with “due process protections of notice and opportunity to be heard,” as well as the right to appeal.

Criminal-History Checks

S.B. 216 also amended the law relating to criminal-history checks performed by employers operating long-term-care facilities.  For example, these employers are now required to use the Background Check Centers, as described above.  Some other key changes for employers include:

  • An applicant may be “conditionally hired” for 60 days but only if the employer has first received verification that the applicant has been fingerprinted by the State Bureau of Identification
  • Criminal histories are to be treated as “strictly confidential” and must be stored in manner that maintains such confidentiality.

Employers aren’t the only ones with new obligations, though.  Employees who were grandfathered in under the original version of the statute have 120 days from the date the Background Check Center is implemented to submit to fingerprinting and a criminal background check. 

Applicants have some new obligations, too.  They are required to execute a release that allows the employer to obtain a criminal history before the time of hire and post-hire for the purpose of updating the history during employment. 

Failure to comply will be costly.  Employers and applicants who fail to comply will be subject to a civil penalty of between $1,000 and $5,000 for each violation.

Key Take-Aways for Delaware Employers

The changes to the law is significant—but only for employers and potential employees in the long-term-care industry.  Employers in other industries are not affected and should be aware of the national trend away from the use of criminal histories as part of the hiring process.  However, for covered employers, the changes are many take effect immediately following the creation of the State’s Background Check Center, so be sure to consult with your employment law counsel about the steps you should be taking to prepare.

See also:

EEOC Publishes Guidance on Consideration of Arrest and Conviction Records

5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit

New Philly Law Limits Use of Criminal-Background Checks

Discovery of Plaintiff's Social-Networking Profile

Posted by Molly DiBiancaOn July 17, 2012In: Social Media in the Workplace

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An employer facing litigation brought by a current or former employee often has good reason to seek discovery of the plaintiff-employee's Facebook posts. For example, an employee who alleges that she was subject to an unlawful hostile work environment in violation of Title VII must show not only that the allegedly harassing conduct was objectively severe or pervasive but also that she subjectively believed it to be so.

I'll use myself as an example. I tend not to be easily offended. In fact, I'm usually the one who has to watch her comments so as not to offend others. If I were to claim that I was subject to unlawful harassment based on my gender, I would first have to point to comments or conduct that a reasonable woman in my position would find offensive--the objective component. But the inquiry does not end there. I would also have to show that I found the comments or conduct to be offensive--the subjective component.

A plaintiff who says that she was not adversely affected by the conduct defeats her own claim. In other words, plaintiffs are not doing themselves any favors when they respond that they were "tough" or "didn't let the conduct bother [them]." Instead, the plaintiff must point to some evidence tending to show that she was affected by the conduct--so much so that the nature of the workplace itself was transformed (negatively) by the allegedly unlawful conduct.

This evidence can take the form of depression, inability to sleep, weight loss or gain, anxiety, etc. And that is precisely why posts on social-networking sites, such as Facebook, can be so critical to the defense of these claims. A harassment claim can be defeated by the plaintiff-employee's Facebook posts that reflect a happy, not-anxious state of mind.

But getting access to a plaintiff's social-networking profile is easier said than done, as many defense lawyers have learned already. A recent decision from a federal court in Nevada grants broad access to this content but doe so in a fairly unusual manner.

In Thompson v. Autoliv ASP, Inc., the plaintiff alleged personal-injury and product-liability claims, arising from an automobile accident in April 2007. The plaintiff alleged that she sustained significant injuries due to a defective seat belt and airbag. Before making a formal discovery request, the defendant obtained posts and photos from the plaintiff's publicly available Facebook profile, which, according to the defendant, constituted evidence of her "post-accident social activities, mental state, relationship history, living arrangements, and rehabilitative progress," all of which were relevant to the underlying claims and defenses.

Thereafter, though, the plaintiff changed the privacy settings on the account so that the information was no longer publicly available. In response, the defendant sought to compel a complete copy of all of the plaintiff's social-networking accounts from the date of the accident to present. the plaintiff objected, arguing that the request was a mere fishing expedition.

The court granted the defendant's motion--with some unusual conditions. Recognizing that "litigation does not permit a complete and open public display of Plaintiff's life," the court ordered the plaintiff to upload onto an external storage device "all information from her Facebook and MySpace accounts" from the date of the accident to the present and to provide defense counsel with an "index of redacted social networking site communications." Once received, counsel was to review the content--but was ordered not to share the content with anyone other than support staff.

Venkat Balasubramani posted about the case at Eric Goldman's Technology & Marketing Law Blog and, as usual, takes an interesting perspective on the practical implications of the court's order. He raises questions that I had, as well, such as: (1) what is an "index;" and (2) why would there be any redacted communications if the plaintiff is required to produce all contents.

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-CVF, 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928 (D. Nev. June 20, 2012).

See also:
Access to Party's Facebook Account During Discovery
Facebook Message Leads to Disability Claim
Employee's Facebook Posts Protected by First Amendment

Stop Workplace Negativity With Email Surveillance. . . . Huh?

Posted by Molly DiBiancaOn July 15, 2012In: Electronic Monitoring, Privacy In the Workplace

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FDA officials developed "a wide-ranging surveillance operation" against a group of its own employees, according to the N.Y. Times. The federal agency is said to have surreptitiously captured "thousands of emails" that disgruntled employee-scientists sent to members of Congress, lawyers, labor officials, and journalists.

The surveillance began as a workplace investigation of a possible leak of confidential information. The investigation was limited to five scientists. But it developed into a far broader-ranging endeavor, eventually culminating in 80,000 pages of documents. The massive surveillance was an effort to curb the "collaboration" of the agency's opponents, according to the report.

This story is interesting on several levels. First, on the most basic level, the idea that an employer the size of the FDA determined that a massive surveillance endeavor was the best way to stop what it perceived to be disparaging or antagonist commentary between employees and outsiders. I don't know what the culture has to be or what the level of negative murmurs has to be to prompt an employer to consider this type of effort in the first instance, nevertheless what it takes to push it to cross that line.

Second, the nature of the communications that were monitored is particularly striking. According to the NY Times report, the emails "were collated without regard to the identify of the individuals with whom the user may have been corresponding. Although the law is not particularly well settled on this issue, there are cases that have upheld significant consequences for employers who monitor, intercept, and/or access emails between an employee and his attorney. Thus, it seems potentially risky for the agency to have disregarded "the individuals with whom the user may have been corresponding."

There are potential consequences beyond the issue of attorney-client privilege, though. We'll have to wait to see what the legal consequences are, if any. I don't suppose we'll ever know what the real impact is on morale, although I can imagine only that it won't be a very positive one.

Here's to All the Lovey-Dovey Lawyers!

Posted by Molly DiBiancaOn July 12, 2012In: Hiring

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Charlie Plumb, Oklahoma's super-star employment lawyer of the year, ECN rock star, and, according to Jon Hyman, the "world's nicest guy," wrote a great post on his firm's Employer LINC blog yesterday about a Philadelphia case straight from the we-can't-make-this-stuff-up department. In shortened form, the story goes as follows:

Customer goes to KFC for a bucket of chicken and is pistol whipped by a gun-toting employee working behind the counter. What incited the employee to violence? Apparently, Customer took too long to choose which of the mouth-watering sides he wanted with his chicken. And, because nobody likes to get pistol whipped--not even for a bucket of the Colonel's finest--the customer sued the restaurant chain, alleging negligent retention based on its failure to conduct a background search on the pistol-packing employee, who, you may not be surprised to learn, did in fact have a criminal history.

Being the all-around funny man that he is, Charlie tells this saga in a very funny way. But, rightly so, he emphasizes out the importance of the court's decision dismissing the customer's claims. If the court had ruled differently, it could have set precedent that employers must, as a matter of law, conduct a criminal background search on every potential employee, regardless of position.

Now, if I can just figure out how the guy from Tulsa beat me to such a great story in my own backyard . . .

Regarding Jon Hyman's complimentary description of Charlie Plumb, I suppose it would be appropriate to say, "it takes one to know one." On his Ohio Employer Law Blog this week, Jon wrote a great post about the TLC employers should give to new employees during the onboarding process.

And, sticking with the lovey-dovey theme, I'll point you to Dan Schwartz's post from Wednesday, in which he tosses a whole bunch of kudos all around the blogosphere, calling particular attention to 10 of his favorite employment-law bloggers--including me and Jon--thanks, Dan.

Now, one for the haters. Admittedly, there is a time and a place for all of this warm and fuzziness. And that place is not always the workplace. A post on MSNBC.com highlights the problem of the awkward office hug. The post quotes various professionals who lament the awkward moment when they went in for the hug only to realize, mid-embrace, that a handshake definitely would have been the better choice.


I've had this discussion with female colleagues on many occasions but have never seen any kind of consensus. I tend to just do whatever I'm inclined to do at the moment--I certainly don't give any kind of advance thought to whether I'm going to greet a coworker or client with a handshake, hug, or cheek kiss. I suppose I'm more casual about these interactions than some of my friends. But maybe that's because I've not yet had the unfortunate experience of the awkward office hug.

Here's to hoping you have absolutely no awkward encounters this weekend and that you meet lots of kind and heartwarming folks, including a lawyer or two.

I Admit It, I Am a Sucker for a Compliment . . . Sort of

Posted by Molly DiBiancaOn July 12, 2012In: Employee Engagement

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Everyone likes a compliment. Believe me when I say that I am no exception. In fact, I've been accused on more than one occasion of being a real sucker for a compliment. A guaranteed way to win me over is to compliment this blog. Works like a charm just about every time.

There's a difference, though, in appreciating when others take notice of your work and working in the hopes that others take notice. I would write the blog, subject to the approval of my employer, of course, regardless of whether anyone ever complimented it. There are so many benefits to blogging that any compliments or recognition that I may get is, truly, a bonus.

If you're wondering, I write the blog because it's a tremendous service to my clients; because it keeps me up-to-the-minute current in my practice area; because it's wonderful to make connections with other e-law bloggers; because it serves as a research repository for me and my colleagues; and because it's a great creative outlet. These are just some of the many reasons that I devote time every day to read other blogs and to write interesting posts that our readers will find valuable. It is, indeed, a labor of love. And that is why the occasional complimentary word about the fruits of my labor mean so much to me. But, again, the kind word or recognition is not the reason, it's just one of the results.

Which leads me to the actual topic of this post. Yesterday, HR Examiner released its list of the Top 25 Employment Law Online Influencers. Apparently, I didn't make the list. Truth be told, I would never have known about the list--or the fact that I'm not on it--but for Twitter and, more specifically, Dan Schwartz. On my walk home from work last night, I was skimming my Twitter feeds and saw a whole flurry of posts that mentioned me.

As it turns out, Dan, who writes the award-winning Connecticut Employer's Law Blog, is on the list, as are a few other employment lawyers. Dan thanked the authors of the list and was kind enough to note that he felt the list was incomplete without me and our friend, Jon Hyman, of the Ohio Employer's Law Blog. This, of course, was totally gratuitous on Dan's part and an all-around super nice gesture.

Following a lengthy Twitter exchange about who should and should not be included on the list, Dan decided to simply make his own list--an excellent idea, indeed--and did so in a post today. Jon and I both made Dan's list, I'm proud to say.

But here's the more important story. Although it can be easier said than done, we should try to remember that it's not the recognition that motivates us. If we love what we do--and I do--then the work motivates us. The rest of it is great when it happens; and it's perfectly fine when it doesn't. We can't be named to every list or win every award, nor should we try. Lucky for me, I am the recipient of far more kind words than I deserve. It's my job to make sure I pass it forward and continue to at least try to earn the compliments that I am given.

Thanks, Dan. And thanks to all of our loyal readers! Now, go check out Dan's list and the 9 other bloggers who made the cut. Then say something nice to someone who is trying hard to get it right.

Access to a Party’s Facebook Account During Discovery

Posted by Molly DiBiancaOn July 10, 2012In: Purely Legal, Social Media in the Workplace

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As tempting as it may be to believe, judges don’t always get it right. Every lawyer has seen an opinion that misapplies the law or applies the wrong law altogether. And maybe that’s why we get so giddy when a court really nails it, particularly when the issue is complicated or novel or the law unsettled. Allegheny Court of Common Pleas Judge hit one of these legal homeruns in a 20-plus-page decision issued last week in Trail v. Lesko. The unsettled legal issue that Judge R. Stanton Wettick addressed was the discoverability of social-media content. 

The case arose from a motor-vehicle accident, from which the plaintiff alleged to have been seriously injured. The parties both sought to have the other side produce Facebook posts and pictures.  Neither side complied and both parties filed motions seeking to compel their opponent to turn over his Facebook password and username.

Put differently, “Ask me to show you mine and I’ll ask you to show me yours.”

Plaintiff’s Requests for Access to Defendant’s Facebook Account

The defendant denied driving the vehicle at the time of the accident and alleged that he did not remember who had been driving the vehicle at the time.  The  plaintiff sought access to the defendant’s Facebook account, arguing that it could be “relevant in determining defendant’s whereabouts or in uncovering any potential witnesses who could shed lights on the events in question.” 

After making the plaintiff’s request, though, the defendant admitted in his written discovery responses that he was the driver at the time of the accident. The defendant also admitted that he had been intoxicated while driving. Thus, the court found that any information that might be available on Facebook was rendered “seemingly irrelevant.”  Moreover, the court explained, the defendant’s own admission about driving under the influence of alcohol would render any of the Facebook information irrelevant to a claim for punitive damages.

Defendant’s Requests for Access to Plaintiff’s Facebook Account

And, as is usually the case in litigation, what’s good for the goose is good for the gander.  In other words, the defendant responded to the plaintiff’s Facebook request by issuing a Facebook request of his own.  The plaintiff had alleged that he was “disabled or limited in his normal activities” and that his disabilities were “possibly permanent.”

So the defendant sought access to the plaintiff’s Facebook account on the grounds that the account may contain evidence of the “extent and severity” of the plaintiff’s injuries. The defendant supported his motion with pictures of the plaintiff “socializing” at a bar and “drinking at a party,” which the defendant had obtained from the publicly available portions of the plaintiff’s Facebook account.

The court was not persuaded, though, explaining that the plaintiff had not alleged that he was so disabled that he was unable to leave his home and that the pictures were not “inconsistent with plaintiff’s alleged injuries.”

Motions Denied: Unfettered Access to Accounts Unnecessary

The parties’ cross motions to compel both sought to have the Court require the other party to turn over his username and password to his Facebook account.  Judge Wettick rejected the idea, ruling that a blanket request for log-in information is just plain unreasonable. A party does not get free-reign access to non-public social-networking posts of his opposing party merely because he asks the court for it. To enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and [] cause embarrassment if viewed by persons who are not ‘Friends'.’”

Before a requesting party will be granted “access” to a Facebook account, the party must show a “sufficient likelihood” that the non-public postings would contain information that is relevant to the litigation that is “not otherwise available.”  Otherwise, the court held, Rule 4011(b), which protects against discovery that is unreasonably annoying or embarrassing, prohibits unfettered access to a social-networking site.

Brava, Judge Wettick, Brava!

The ruling in Trail is a refreshing example of well-reasoned legal analysis applied with common sense.  It is a bad idea for any person to voluntarily turn over his password to any online account to another person.  And it is an equally bad idea to request that a court facilitate such a practice. Yet, much to my disappointment, this is a practice that has become more common in the past few years, as courts struggle to deal with questions relating to discovery of social media and other forms of electronic evidence.  The opinion’s holding sets an important baseline for discovery of social-networking content.  Specifically, a litigant will not be ordered to turn over his password or other log-in information to an opposing party to enable that party to gain unfettered access to the litigant’s social-networking site.

Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 3, 2012).

What Constitutes Contact Via Facebook

Posted by Molly DiBiancaOn July 10, 2012In: Social Media in the Workplace

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In my law-review article on legal ethics and social media, I argue that lawyers have an ethical duty to understand social networking. In support of this premise, I pointed out that courts have held that a friend request sent via Facebook constitutes "contact" for the purpose of a no-contact order. Thus, a person subject to a no-contact order is prohibited from sending a friend request to the person protected by the order in the same way he is prohibited from calling her or approaching her in person.

A recent arrest in Iowa City, Iowa extends the concept even further. Last week, Paul Stoneking, 27, was arrested for violating a no-contact order for his Facebook activity--but not for sending a friend request. Instead, Stoneking is accused of having posted a comment on a picture of himself and the woman protected by the order. And here's the real kicker--the picture was on Stoneking's own Facebook page.

Stoneking admitted to having commented on the photos on his Facebook profile but explained that he didn't realize the victim would be notified of his comments, reports the Eastern Iowa News. He thought that, because the victim was "no longer tagged in the photos," she would not be sent notice of his comments. Not terribly unreasonable, I would argue.

However, depending on the user's Facebook settings, the site may email her when she is mentioned in a comment, tagged in a picture, or whenever someone comments on those pictures. So, if you are Stoneking's lawyer, how comfortable would you be advising your client about what will and will not result in "contact" with the protected individual? Unless you're fairly proficient with the ever-changing Facebook terms of service and privacy settings, it seems to me that this is an area riddled with potential peril.

Is Your Boss a Bert or an Ernie?

Posted by Molly DiBiancaOn July 9, 2012In: Jerks at Work

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Navigating office politics can be difficult. Even in workplaces without backstabbers and manipulators, we all have days when it can be, well, shall we say, difficult to play well in the sandbox with others.

The best piece of advice I ever received when it comes to getting along with others is to remember that not everyone thinks like I do. Of course, I know that this is true. But even the obvious can be easily forgotten. There is a novel way to keep it mind, though.

If you want to manage your workplace (or other) relationships better, try starting with a personality analysis. And Muppet Theory may be the analysis you've been looking for. Muppet Theory, in short, proffers that everyone can be classified as either a Chaos Muppet or an Order Muppet.

As the creator of the Theory, Dahlia Litwick, writes on Slate:

Chaos Muppets are out-of-control, emotional, volatile. They tend toward the blue and fuzzy. They make their way through life in a swirling maelstrom of food crumbs, small flaming objects, and the letter C. Cookie Monster, Ernie, Grover, Gonzo, Dr. Bunsen Honeydew and--paradigmatically--Animal, are all Chaos Muppets. So, I must tell you, is Justice Stephen Breyer. bertandernie200x200.jpg

Order Muppets--and I'm thinking about Bert, Scooter, Sam the Eagle, Kermit the Frog, and the blue guy who is perennially harassed by Grover at restaurants (the Order Muppet Everyman)--tend to be neurotic, highly regimented, averse to surprises and may sport monstrously large eyebrows. They sometimes resent the responsibility of the world weighing on their felt shoulders, but they secretly revel in the knowledge that they keep the show running. Your first grade teacher was probably an Order Muppet. So is Chief Justice John Roberts.

Litwick goes on to explain that you can determine which type of Muppet your office mate is by the workspace that he or she keeps. She likens a Chaos Muppet's desk to Oscar's garbage can. But Chaos Muppets aren't all bad, she reminds us--too many Order Muppets means no cookies for anyone.

You may find that the quirky behavior of that coworker who drives you buggy is a little less quirky when think of him as an Ernie instead of a Bert. Go ahead and try it. Then have a cookie.

And, in case you are wondering why the reference to two Supreme Court justices, Litwick writes about the law and courts for Slate, which just confirms for me that she's totally awesome, as if her Muppet Theory didn't do that already.

Friday Quick Hits: Twitter Edition

Posted by Molly DiBiancaOn July 6, 2012In: Social Media in the Workplace

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It's Friday. I've got a short day today but a long list of things to do. I haven't posted in a couple days because of the holiday. So, I'm going keep this post to a reasonable length in an attempt to keep my sanity. And, keeping with the theme of short and sweet, I'm going to write about some news relating to Twitter. twitter icon.png

Let's start with Legal News.

A New York judge ordered Twitter to turn over three months' worth of an Occupy Wall Street protester's tweets. Initially, the protestor attempted to have the subpoena quashed but was unsuccessful, as the judge ruled that he did not have standing. Twitter intervened and sought to avoid having to turn the protester's tweets over to the State. The judge disagreed with Twitter's arguments and ruled that the company must comply with law enforcement's demand. But the judge did decide that he would review the tweets and determine which ones are relevant to the case before turning them over to the prosecution. Via WSJ Online.

Yesterday, a Florida judge set George Zimmerman's bail at $1 million, setting off a firestorm of death threats and calls to arms from Twitter users. Threats of violence violate the site's terms of use. The threatening tweeters have been deemed a "Twitter lynch mob." Via Examiner.com

Moving on to Sports.

Baltimore Ravens play-by-play announcer Gerry Sandusky has had a similar experience, being on the receiving end of hateful tweets sent by users who have confused him for the recently convicted former Penn State assistant football coach, Jerry (with a "J") Sandusky. Via USA Today.

The ugly side of Twitter also showed itself during the final rounds of the Euro 2012, when fans tweeted racist comments directed at two English soccer players. Because the laws do not protect free speech in the same way they do in the U.S., the tweets are being investigated by police and the Football Association has called the comments "appalling and unacceptable." Via Fox Sports

Jameer Nelson, point guard for the Orlando Magic, reached a deal in principle with team management and announced the news via Twitter yesterday. Via the Washington Post.

Another athlete, Chad Ochocinco, had some Twitter announcements of his own but of a very different kind. Ochocinco made news when he invited a grieving widow from Franklin, Ohio, to his wedding after she sent him a message Twitter. Then, on his big day, he kept fans up to to date with a Twitter play-by-play, tweeting before, during, and after his nuptials. Via US Today.

We'll wrap up with the Entertainment news. (It is Friday, after all).

For those of you who may have been devastated by the news newlywed Alec Baldwin quit Twitter, you can breathe easy. Just two days after deactivating his account, Baldwin is back, tweeting under a different name. Although Baldwin has committed to a new marriage, he apparently can't commit to leading a Twitter-free life with his new bride. Via MSN.com.

Matthew McConaughey tweeted his own big news this week, when he used Twitter to announce that he and his wife are expecting their third child. Via the Washington Post.

Have a great weekend and we'll see you next week! If you're on Twitter, I'd love to hear from you. You can find me at @MollyDiBi or y clicking the "Follow Us" icon on the top right side of the blog's home page.

Poor Client Management and High Expectations

Posted by Molly DiBiancaOn July 3, 2012In: Jerks at Work, Performance Evaluations

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There has been a common element in each of the most difficult cases I've litigated--poor client management. What this means in a broad sense is a lawyer who fails to properly manage his client's expectations. This occurs for any number of reasons. For example, the lawyer may not have a good grasp of the case or of the applicable law and, for that reason, may have a severely inflated sense of the value of his client's claims.

The client is not always without fault, either. I've seen particularly manipulative or just plain bossy clients push their lawyer to do one thing or another and simply refuse to relent until they get their way. I usually see this exhibited during depositions. My opposing counsel brings his client to the deposition of my witness. Throughout the deposition, the client scribbles notes frantically, ripping pages out of a notebook and thrusting them across the table to his lawyer.

Inevitably, the lawyer relents and asks the question proposed by his client. And, inevitably, it's a flop. The question is out of context, irrelevant, and often poorly stated. It makes the lawyer look foolish and throws him off course.

A good lawyer knows better than to let this happen in the first place. When it is appropriate to bring a client to a deposition or court hearing, the good lawyer explains in advance what his role is and what the client's role is. If the client gets caught up in the moment and temporarily forgets those instructions, the lawyer simply takes a break at the next opportunity and tells the client to please keep her notes until the next break, when he will be glad to review them.

So what does client management have to do with today's workplace? In short, the transferrable lesson relates to managing expectations. Whether you are dealing with your direct supervisor, your assistant, or your own clients or customers, expectations are essential.

We are all responsible for setting our own rules and then abiding by them consistently. If you give your cell phone number to clients and encourage them to call you "anytime," don't be short with them when they do. Similarly, if you allow employees to "tease" a coworker because of his accent, don't be surprised when the "teasing" spreads to gender, race, religion, or sexual orientation.

It is the responsibility of every manager to set the expectations for employee behavior. These expectations are set in part by example and in part by responding immediately and consistently to every failure to meet those expectations.

Workplace Email: The Devil Made Me Do It

Posted by Molly DiBiancaOn July 2, 2012In: Jerks at Work, Resources, Tech Tips

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People manage email in different ways. Some of us use our Inbox as a task list, filing everything that does not need attention.  Others use their Inbox as a storage site for any email that they may ever want to refer to again. You can imagine which group is better liked by IT departments across the globe.

We also have different standards for what is and is not acceptable from a usage or style perspective.  Emails that disregard sentence capitalization, for example, opting to use only lower-case letters, may drive some readers bonkers. Others may be more troubled by email senders who elect to use an atrocious and distracting “stationery,” which translates roughly to a pale beige background with fuzzy gray dots arranged in a grid pattern on which it is impossible to read any text smaller than 24 pts in bold font.

But what about the content of our emails?  There are tricky aspects of that, too, as many of us are all too well aware. Why is it that readers so often misinterpret messages as having a far more sinister or simply unfriendly intent?

Scott McDowell suggests some reasons in his post, Email Etiquette II: Why Emoticons (And Emotional Cues) Work.  I’ve been seeing a lot of articles like this lately and am thoroughly convinced of the accuracy of their premise. In short, despite our attempts to sound conversational in email correspondence, the electronic nature of the exchange prevents an actual conversation from occurring.  Without the chance to translate body language, intonation, and facial expressions, as we do so naturally during in –person conversations, we’re left to our own imaginations when putting emotions to the text we see on the screen.

And, as the post explains, if an email’s content is neutral (as many of us aim to achieve in our day-to-day business correspondence), he reader is more likely to assume that the tone is negative.  This theory of “negativity bias,” which is credited to Daniel Goleman, author of Emotional Intelligence, also holds that, when the email’s tone is positive, the reader interprets the tone as neutral, as Mike Maslanka previously explained. 

So what’s a well-intended email author to do? smiley face icon

McDowell suggests an increased use emoticons.  Admittedly, I use a lot of smiley faces in my casual correspondence. I know, I know, it’s not exactly the most lawyerly way to write an email but it does the trick.  When used properly, the winking smiley face can lighten the tone of an otherwise serious-sounding sentence.  But I don’t imagine that I ‘d use a smiley face or even a winking smiley in an email to a new client with whom I don’t already have a rapport or who doesn’t already know smiley-type personality. 

Perhaps there’s an app waiting to be developed here—emoticons for the business environment. A little bow-tie wearing smiley face, maybe? Or maybe the smiley face could don a pair of wire-rimmed glasses, thus appearing both smart and friendly.

Until then, I’ll offer my own humble suggestion—not to to senders but to recipients. If you receive an email from a coworker or other person you generally consider to be on your side of the shooting range, and you have a moment of doubt about the tone or intention behind an email you receive, make an effort to start from the assumption that it’s positive or, at the very least, neutral. In other words, be consciously careful to avoid assuming that guy or girl down the hall has suddenly switched sides and is now a covert agent operating for the enemy.