Three YCST Attorneys Selected to Participate in Federal Trial Practice Seminar

Posted by Molly DiBiancaOn March 21, 2011In: YCST

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A quick note of congratulations to three of our colleagues, who were selected to participate in the Federal Trial Practice seminar.  The program, which is hosted by the U.S. District Court in the District of Delaware, is in its second year and is designed to provide hands-on experience and valuable courtroom training.  Congratulations to Michele Sherretta Budicak and Jeffrey T. Castellano, of Young Conaway's Intellectual Property Litigation Section, and Erika R. Caesar, of the Commercial Litigation Section.  For more about the program, see an earlier post by the Delaware IP Law Blog.

Congratulations Michele, Jeff, and Erika!

Social Media Dos and Don'ts for Employers

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

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I was interviewed by Boston Public Radio's Here and Now about the wild world of social media in the workplace--you can listen to the interview here.  In the course of the discussion, several important points came up about the "dos and don'ts" for employers when dealing with the variety of issues resulting from social media use by employees.  Here are a few of them.

Do Have a Well-Written Policy

A social-media policy that is carefully drafted can be the most effective tool that an employer can hope to have. Although policies can vary greatly depending on the culture and needs of the organization, there are a few essentials that all policies should include.

First, be sure to identify a specific contact person (with contact information) who will be the point person for employees' questions about the policy and make it clear that employees are to ask before acting any time they have any doubts about whether their intended action may violate the policy.

Second, specifically reference other company policies, such as an anti-harassment and -discrimination policy, conflicts-of-interest policy, and confidentiality policy, and make it clear that they apply equally to conduct in the online world just as they do in the "real" workplace.

Third, require all employees to report online conduct that violates any of these policies as soon as they become aware of it--without this provision, you may find that the only people who don't know about policy violations are those that are charged with its enforcement.

Do educate employees

The goal of a social-media policy is not to "trick" employees into violating it. Instead, the objective is to prevent employees from acting in a way that hurts the organization or themselves. With that in mind, employers are well advised to offer ongoing education to employees. Topics can include proper online etiquette, good online citizenship, as well as more hands-on subjects, such as how to adjust the privacy settings in a social-networking profile.

And don't rule out the value of learning by example. A discussion of headlines involving employees who are terminated or disciplined for online conduct is an excellent training tool and offers employers valuable insight about what conduct their employees find most (and least) egregious.

Don't take it personally

When an employee makes negative comments about her job, her employer, or her supervisor, employers often overreact. They tend to take the comments personally and respond with emotion instead of logic. If you discover an online post about your organization written by an employee, it's best to take a step back before you respond.

Ask yourself whether the post really impacts the organization in a negative way or whether it's more akin to traditional water-cooler gossip. Unless you can identify some kind of actual harm to the organization, you may want to consider whether disciplinary action is appropriate at all.

Don't be sneaky

"Sneaky" conduct frequently gets employers into trouble. Don't, for example, ever ask (or require) an employee or applicant to give you his password to an online account or profile. Similarly, don't have another employee give you access to her account so you can surreptitiously snoop on her coworker. Don't have someone send a friend request so you can gain access to an employee or applicant's profile without disclosing the real reason for the request. The bottom line here is, if it sounds sneaky, looks sneaky, or smells sneaky, then a jury will hold you accountable for such unpalatable behavior.

ADA and Drug Addiction: The Ninth Circuit Provides Guidance

Posted by Lauren Moak RussellOn March 15, 2011In: Disabilities (ADA), Discrimination

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A recent opinion from the U.S. Circuit Court of Appeals for the Ninth Circuit has clarified employer liability under the Americans with Disabilities Act, where the employer requires drug testing as a prerequisite to employment. In Lopez v. Pacific Maritime Associates, the plaintiff challenged a union's one-strike rule, which provided that one positive drug or enchained by the lawalcohol test during pre-employment testing permanently prohibited hiring of the applicant.

In this case, the plaintiff applied for work as a longshoreman in 1997, but was rejected after he tested positive for marijuana. After seeking treatment for his drug addition, the plaintiff again applied in 2004, but was denied under the union's one-strike rule.

In response, the plaintiff sued under the ADA, alleging that he had suffered discrimination on the basis of a disability--his previous drug addiction. The plaintiff alleged both disparate treatment and disparate impact. In reviewing the appeal, the Ninth Circuit rejected the plaintiff's disparate treatment assertions on several fronts. First, the Court held that because the on-strike rule denied employment to both addicts and recreational drug users, it did not discriminate on the basis of addiction. In reaching its holding, the Court emphasized that "the ADA prohibits employment decisions made because of a person's qualifying disability, not decisions made because of factors merely related to a person's disability."

Second, the Court concluded that there was no evidence to indicate that the union imposed the one-strike rule with the intention of excluding recovering addicts from the workforce. Instead, the Court found that the one-strike rule was tied to a history of injuries and fatalities in the longshore industry, resulting from the use of drugs and alcohol in the workplace.

Finally, the Court found it significant that the union did not learn of the plaintiff's addiction until after it had again denied him employment in 2004. In the absence of knowledge about his disability, its decision could not have been based on discriminatory animus.

With regard to his disparate impact claim, the Court rejected the plaintiff's argument that the one-strike rule disproportionately impacted recovering drug addicts, because plaintiff did not provide any relevant statistical evidence in support of his allegations.

The Ninth Circuit's opinion should reassure those employers who engage in non-discriminatory drug testing. As we already know, if your drug testing policy applies to all employees meeting certain neutral criteria (e.g. all job applicants, or all employees involved in workplace accidents) your conduct is lawful under the ADA. While the one-strike rule addressed by the Ninth Circuit is severe, the Court's opinion is in keeping with previous ADA jurisprudence protecting employers who drug test job applicants and employees under facially-neutral circumstances.

Schadenfreude—Employment-Law Style

Posted by Lauren Moak RussellOn March 11, 2011In: Just for Fun

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In today's litigious society, it's always nice to take a step back and appreciate the problems we don't have--even if that means indulging in a little schadenfreude. In that spirit, I give you the story of Jill McGlone, a civil servant in Norfolk Virginia. calendar and clock

Ms. McGlone has sued her former employer for wrongful termination. Generally an employee's allegations of wrongful termination don't raise eyebrows,  but this case presents unique circumstances. Ms. McGlone was terminated in 2010, after a 12-year paid suspension, during which time she allegedly received approximately $320,000 in compensation. It is also alleged that during her suspension, McGlone continued to receive benefits and annual raises.

It's still unclear how Ms. McGlone's situation was allowed to continue for 12 years. It appears that after she was suspended in 1998 for alleged workplace misconduct, her supervisor never resolved her employment status. The issue was not reviewed again until 2010, when a new director was appointed to oversee the agency for which Ms. McGlone "worked." Since Ms. McGlone's situation came to light, five other individuals have been terminated for allowing her suspension to continue unresolved. Possible civil and criminal charges are still being considered.

The moral of the story: don't suspend your employees with pay for 12 years, and be glad you're not being threatened with litigation for correcting the situation!

Whac-A-Mole Maker Gets Whacked By Employee Sabotage

Posted by Molly DiBiancaOn March 10, 2011In: Non-Compete Agreements

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Employee sabotage can take many forms. Employees can take documents with them when they leave to work for a competitor, for example. More insidious examples can involve employee destruction of files, causing enormous harm to the employer. Here's one unfortunate story involving both kinds of sabotage committed by an employee of Bob's Space Racers, the manufacturer of the classic arcade game, Whac-A-Mole. Errors

Police arrested Marvin Wimberly, Jr., 61, last month, charging him with the unusual crime of  offenses against intellectual property--a felony. According to the Orlando Sentinel, Wimberly programmed a virus into nearly 450 computer modules. The virus caused the game to fail after exactly 511 starts. He is alleged to have begun his criminal mission in August 2008, the same year his employer converted him from a contractor to a full-time employee.

Once the virus hit, the computers were inoperable--unless, that is, Wimberly was sent to perform maintenance. Seven months after the viruses began, Wimberly raised his programming price from $60 to $150 per computer chip. He later told a coworker that he'd programmed another game to fail after 48 or 49 power cycles because he hadn't been paid.

One of the most disturbing parts of this story is the allegation that Wimberly had planned to sell working modules to his employer's customers when their games failed--the failure, of course, was a direct result of Wimberly's programming. He'd even reserved a website, www.BobsUpgrades.com, for his new endeavor. And, all the while, he had been making extra money fixing infected computers. Oh, the web we weave.

Ensuring Your Wellness Programs Do Not Violate GINA

Posted by Adria B. MartinelliOn March 8, 2011In: Genetic Information (GINA)

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It has come to our attention recently that many wellness programs are not in compliance with the Genetic Information Nondiscrimination Act (GINA) regulations, which went into effect in January of this year. Group insurers and employers must construct such programs carefully to ensure that they don't run afoul of GINA's prohibitions.

GINA prohibits the request of genetic information (which includes family medical history) by classified employers or group health insurers, but includes an exception for voluntary wellness programs under certain conditions. Health risk assessment (HRA) questionnaires are often included as part of a wellness program solicit genetic information, and often seek information that would be considered genetic information under GINA, e.g., "Does your family have any history of cancer, heart disease, or other illness?" Following passage of the law, it was not entirely clear what constituted "voluntary" versus "involuntary" wellness programs, and whether or not monetary incentives offered for participation rendered the program involuntary. The regulations issued in late November 2010 and now in effect addressed this question specifically.

Employers and insurers will not be in violation of GINA if they are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered. The same goes if completion of the HRA makes the employee eligible for a raffle with prizes.

If, for example, a workplace wellness program requires employees to fill out HRAs, and the HRA contains common questions requesting family medical information, or even broad questions such as "Are there any other health matters that you would like to discuss?" the insurer and the employer could, under certain circumstances, be in violation of GINA.

Employers and insurers can work around these GINA prohibitions to create an effective wellness program. The most straightforward approach is to have no rewards offered in connection with completion of the HRA (assuming the HRA contains genetics or family-history related questions).

Another method of getting around the prohibition on pre-enrollment HRAs with genetic or family history questions--and one suggested by the regulations--is to create a two-part HRA. The first part would be stripped of any questions related to the person's genetics or family history, and given out before health plan enrollment and may have a reward attached. There would be no reward conditioned on completion of the second part of the HRA, which may contain questions about family medical history.

In order to truly strip the HRA of questions relating to genetics, vague questions such as "Is there anything else relevant to your health that you would like us to know or discuss with you?" should be followed up with these instructions, provided in the regulations:

In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.

NLRB v. Social-Media Policies, Round II

Posted by Molly DiBiancaOn March 6, 2011In: Social Media in the Workplace, Union and Labor Issues

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First, the NLRB filed a complaint against CT employer American Medical Response (AMR), alleging that, by disciplining an employee for violating its social-media policy, AMR had violated the National Labor Relations Act. The AMR complaint was settled and no decision was issued.

But it appears that unions will continue to prosecute employers whose social-media policies they believe are too broad. The second charge of this type was filed on February 4, 2011, against Student Transportation America, Inc., another CT employer. In this charge, filed by the Connecticut State Employees Association/SEIU, the employer is not alleged to have wrongfully disciplined an employee for violating its social-media policy. Instead, the union takes issue with the policy itself, which bans "the use of electronic communication and/or social media in a manner that may target, offend, disparage or harm customers, passengers or employees."

Employer Liability for Accessing Employee’s E-Mails

Posted by Molly DiBiancaOn March 2, 2011In: Electronic Monitoring, Privacy In the Workplace

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When a former employee sues his former employer, an immediate issue of concern is how to preserve all electronically stored information (ESI) that may be relevant to the claim. Failure to do so may result in a claim of spoliation, sanctions against the employer and its legal counsel, or even an adverse ruling. Good employment counsel understands these consequences and how to avoid them in the first instance.

One of the most common steps is to have the employee’s computer forensically imaged by an expert. The expert will also preserve the employee’s company e-mail account. But this does not address the possibility that the employee may have sent e-mails from his work computer via a web-based e-mail service, such as Yahoo or G-mail. The law is not clear on this point and the defensibility of this practice can vary depending on the content of the e-mails—which, of course, the employer will not know until it looks.

There are several laws that employers risk violating by accessing an employee’s “personal” or web-based e-mail account. The federal Stored Communications Act is one such law and is the one that seems to result in more liability than others. A decision from late last year provides a recent example.

In Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, two employees prepared to open a competing fitness center with their then-employer. One of the employees quit and the other was fired. After the second employee was terminated, the employer accessed and printed emails from his web-based e-mail accounts. Although it was a disputed issue, the employer claimed that the employee had saved his username and password to the employer’s computer system.

The employer filed suit in New York state court to enforce a non-compete agreement and prevent the employees from opening their competing business. The court denied the request for an injunction and the employees removed the case to federal court, where they brought a counter-claim against the employer based on the allegedly improper access of the e-mails. At the request of the employees, the court ordered the employer to return all e-mails and prohibited their use in the case.

The court’s decision was based on its finding that the employer’s access of the employee’s emails violated the Stored Communications Act (SCA), which prohibits unauthorized access of e-mail correspondence that has been saved or stored once sent (among other things). The employees were awarded damages in the relatively small amount of $4,000 but I’m sure this felt like anything but a victory for the employer. The employer contended that it had done nothing wrong even if it had accessed the e-mails—they were, after all, stored on the employer’s computers, along with the username and password to access them. Worse yet, the e-mails supported the employer’s claim that the employees had been preparing to compete during their employment and had gone on to open a competing business.

The lesson from this case and the others like it is to be extremely cautious when deciding whether you may lawfully access an employee’s personal e-mails. Additionally, employers should revisit their computer-usage policies to make sure that the language is crystal clear that employees should not expect that their use of company computers will be considered private—including all Internet activity and, specifically, web-based e-mail accounts to the extent they are accessed via the employer’s computer.

Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, No. No. 08 Civ. 4810 (THK) (S.D.N.Y. Dec. 22, 2010).

[Thanks to Venkat and his post on the Technology and Marketing Law Blog for bringing this case to my attention.]

Md. Agency Suspends Facebook-Password Policy

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

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The Maryland Department of Corrections' Facebook-password policy for job applicants has been suspended following the negative publicity resulting from an ACLU blog post in opposition to the practice.  Maryland Public Safety Secretary Gary Maynard notified the ACLU that he had suspended the social-media password requirement for 45 days pending a review of the policy. 

I can't say that I'm surprised.  Requesting an employee's or job applicant's social-networking password is a bad idea. Period. Just ask city officials in Bozeman, Montana.

March 11: Social-Media Policy Workshop

Posted by Molly DiBiancaOn February 21, 2011In: Seminars

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UPDATE: Both sessions are fully reserved. Thank you!

Bill Bowser and Molly DiBianca will be teaching a 3-hour workshop for private-sector employers on how to draft an effective social-media policy.  The workshop is being held at Young Conaway's Wilmington, Delaware offices.  The fee is only $25 per attendee but space is very limited, so don't wait to register. 

A more detailed description can be found in the flyer, linked here.   

Registration Form (PDF)

Employee Must Give Employer His Facebook Password, Says ACLU

Posted by Molly DiBiancaOn February 21, 2011In: Social Media in the Workplace

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Facebook gives employers lots of reasons to worry. There are employees who leak confidential company information, talk badly about supervisors, and complain about customers. There's also the NLRB's recently settled complaint, brought against a Connecticut employer, that alleged that the employer's social-media policy was overly broad. And, for several years, employers have struggled with the question of whether they can or should "research" candidates online before making a hiring decision. We've posted about this question many times but the debate continues.

The most recent headline is sure to jettison the debate yet again. The American Civil Liberties Union has taken up the cause of Maryland corrections officer Robert Collins.  According the ACLU's blog, Collins was required to provide his Facebook login and password to the Maryland Division of Corrections (DOC) during a recertification interview.  Once he provided it, the interviewer logged on to his account and reviewed the content.  The ACLU's letter to Maryland's Public Safety Secretary and a video of Mr. Collins telling his story can be found on the ACLU Blog.

Once this story gets some publicity, it's not likely to be defended by many. The only other employer that I've heard of who required potential employees to turn over their log-in information was the town of Bozeman, Montana. When news of the town's practice hit the Internet, a firestorm of negative publicity resulted. Shortly thereafter, the practice was abandoned.

I learned of a similar practice from students at the Wharton School of the University of Pennsylvania when I gave a lecture there last spring.  The students told me that it had become common practice in the financial sector to require candidates to log into their personal Facebook accounts to let the interviewer review the information in the candidate's presence.  As you may have guessed, the students were not happy about this interviewing "technique."

I expect that the Maryland DOC will see quite a bit of negative publicity, once the ACLU's story makes its way around the social-networking sites. And for good reason--it's a bad policy.

Although I try not to be too judgmental when it comes to the various choices made by employers, I can't defend this policy. Here's why. This policy requires an individual to relinquish his control of his Facebook page. The employer could then turn over this control to any person or persons in the organization. There would be nothing to prevent an employee in the Maryland DOC from changing the password and actually excluding the individual from his or her Facebook page. 

When I've discussed the Bozeman situation with employers and human-resource professionals in the past, I usually suggest that, perhaps Bozeman was using this practice as a screening tool--anyone who actually relinquished their confidential password and log-in information without any kind of assurances about the controls in place to keep that information secure would not be hired.  But, alas, it turned out Bozeman just had a bad policy.

I suggest that the same is true for the Maryland DOC.  For an agency charged with security responsibilities, it seems irrational to ask current employees or applicants to relinquish control over confidential information.  But, hey, that's just my opinion.

Health-Care Employers Who Don't Hire Smokers

Posted by Molly DiBiancaOn February 16, 2011In: Off-Duty Conduct

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Not all workplace discrimination is unlawful.  For example, employers can refuse to hire candidates who will not wear necessary safety equipment. That is discrimination.  That is not unlawful discrimination.  One type of employment discrimination that is not unlawful in some states is discrimination against smokers or, more usually, discrimination based on tobacco use.  cigarette pack broken cigarette

We've written about the efforts of many employers to reduce health-care costs and increase productivity by not hiring applicants who smoke or use tobacco. (See, Health vs. Privacy: Employers Continue to Juggle Both; How Far Should Employers Go When It Comes to Employees' Health?; Not Everyone Is Fired Up About Smoking Ban; Employer Quits Its Smoking-Penalty Policy).  Last week, the N.Y. Times ran an article about the increase in this type of "discrimination" in the health-care field.  Of all employers, it makes the most sense that an employer in health-care would not hire employees who elect an unhealthy lifestyle. 

I have mixed feelings about these bans for a number of reasons.  For example, lots of non-smokers live very unhealthy lifestyles by failing to exercise or not working to reduce high cholesterol.  But smoking is, by far, a trendier target than high cholesterol.  On the other hand, smoking is also more deadly.  So if you are an employer who wants to promote health, it would make sense to target the one activity that has the farthest reaching negative impact.  (Of course, there was a study that showed that having an inconsiderate and uncommunicative boss was more likely to suffer a heart attack than an employee who smokes or who fails to exercise.  See "My Boss Is Killing Me").

At the end of the day, though, I tend to come out on the side of a middle ground by suggesting that employers simply prohibit smoke breaks.  If an employee goes through the workday with only one opportunity to spoke (i.e., at the meal break), you've gone a long way to reduce tobacco use.  Additionally, this eases the discomfort from what is perceived as an employer's intrusion into its employees' personal lives. 

It's an argument that has good points on both sides and I find it interesting that the debate continues to go on, several years now since employers first reported refusing to hire employees who smoke.

See also:

Will President-Elect Obama Be Charged a Smoker's Premium?

Terminating Employees for Off-Duty Conduct

State Employees Will Go From Fat to Fit--Or Else

The 5 Medical Conditions That Employers Don’t Want to See in a Candidate;

You Are Hereby Classified: WHD Proposes New Notice Rule

Posted by Molly DiBiancaOn February 15, 2011In: Fair Labor Standards Act (FLSA)

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Exempt or nonexempt? That can be a tough question.  With wage-and-hour litigation on the rise, wise employers are aware that the classification question is an important one, as well.  The U.S. Department of Labor's Wage and Hour Division (WHD), has announced a proposed rule that, if adopted, would have significant impact on the process employed by companies in determining whether or not an employee should be classified as exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act. classified

The proposed rule would require employers to conduct a written classification analysis for each exempt employee.  This analysis would have to be provided to the employee and a copy retained on file to be provided to the WHD in the event of an investigation.  The same records would need to prepared and retained for any individual the employee classifies as an independent contractor--as opposed to an employee.

This proposed revision to the recordkeeping requirements of the FLSA is consistent with the DOL's initiative to target employers who misclassify workers. It also seems to be indicative of a continued interest in initiatives that involve giving notice to employees of their various workplace rights.  See You've Got Rights: NLRB's Proposed Notice to Employees.

IRS Announces Breast Pumps Now Deductible

Posted by Adria B. MartinelliOn February 11, 2011In: Fair Labor Standards Act (FLSA), Pregnancy (Title VII)

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Reversing a long-held position, the IRS announced yesterday that breast pumps and other lactation supplies are now deductible.  Employees can now use pre-tax funds from their flexible spending accounts and health savings accounts for these supplies. The ruling is effective immediately and can be used on 2010 returns.

In conjunction with the FLSA amendment, which was went into effect in March of 2010, this ruling signals that policymakers are finally coming to appreciate the health benefits of breastmilk for newborns, that medical professionals have long touted.

Breast pumps and related supplies can run as high as $1,000 in the baby’s first year. The fact that employers are now required to accommodate lactation breaks of reasonable length, combined with the change in IRS policy is likely to have a measurable effect on the number of mothers returning to work who opt for the benefits of breastmilk.

See also:

Court Ruling on Breastfeeding at Work Brings a Downpour of Criticism

New Guidance on Law Requiring Breaks for Nursing Mothers

Keep Your Shirt On!

Posted by Lauren Moak RussellOn February 11, 2011In: Off-Duty Conduct

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mens outfit

By now, we should all be well aware that our out-of-office conduct can result in discipline  or termination in the workplace. Never has this been more true than today, when people document their entire lives online, leaving cyber-footprints everywhere they go. Sadly, this was a lesson learned too late by Congressman Christopher Lee.

Lee was a two-term Congressman from New York, with a wife and young child. Apparently Mr. Lee got a little frisky in Washington, and emailed a picture of himself, shirtless, to a woman on Craigslist. The woman then shared the photo with Gawker.com, a celebrity news site. Mr. Lee has since resigned his seat by letter to House Speaker John Boehner.

This news story is just another reminder, if anyone needed it, that internet conduct is not private. Even if you restrict access on blogs, Facebook, or similar sites to "friends," the information you share is not private. This is a message that has clearly not penetrated our corporate culture. So, the onus remains on employers to remind their employees that out-of-office conduct can result in employee discipline, and that their conduct online is highly visible and relevant to workplace performance!