Facebook Posts by Police Officer Not Protected by the 1st Amendment

Posted by Molly DiBiancaOn December 10, 2013In: Public Sector, Social Media in the Workplace

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Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

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And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

SCOTUS Ruling on Forum-Selection Clauses Good News for Employers

Posted by Sheldon N. SandlerOn December 9, 2013In: Delaware Specific, U.S. Supreme Court Decisions

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Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state's law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.

Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court's reasoning will apply with equal force to such disputes.

The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be

given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.

Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).

Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.

What Your Employees Steal May Be Used Against You In a Court of Law

Posted by Molly DiBiancaOn December 3, 2013In: Privacy In the Workplace

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Can employee theft be a protected activity? Unfortunately, yes.  As I’ve written previously, employee theft of data and documents is so common it’s frightening—or should be—to any employer.  See Your Employees Are Stealing Your Data; Your Employees Are (Still) Stealing Your Data.

When an employer discovers that a recently separated employee has taken with him or her the employer’s data in electronic and/or paper format, there are a few possible outcomes.  Frequently, legal counsel is able to get the documents returned and an affidavit signed by the employee certifying that he no longer has any of the employer’s property in his possession, custody, or control, and that, should he later discover that he does still have such property, that he will contact the employer immediately and cooperate fully in returning it.  In these cases, it is up to the employer whether or not to “go after” the documents (and/or the employee who stole them).   data thief employee

But this is not always the case.  Employees have stolen the employer’s documents only to then attempt to use those documents in litigation against the employer.  Yes, this is as horrible as it sounds.

Here’s the nightmarish scenario.  Employee sues employer, alleging that employee was subject to unlawful discrimination based on age.  While still employed, employee steals a copy of her personnel file and the personnel file of the younger co-worker who employee claims was promoted instead of employee.   During discovery in the litigation, employee produces copies of these stolen documents and claims that they support her age-discrimination claim.

You now know that the employee wrongfully accessed the co-worker’s (confidential) personnel file, made a copy of it, and retained that copy (presumably giving a copy to her lawyer, who then produced it to you during discovery).  The rational employer would likely respond to this information by terminating (or at least wanting to terminate) the employee for breaching all sorts of policies.  And, if the file contained certain personal data, the employer would likely have a legal duty to notify the affected co-worker, as well.

But, alas, the law is never as obvious as one may hope.  There is a small body of cases that held that problems can arise if the employer does what most rational employers would want to do—i.e., fire the thief-employee.  For example, in a 2010 decision, the New Jersey Supreme Court held that it was, in fact, unlawful to terminate the employee for precisely the conduct described above.  The court found that the employee gave the documents only to her lawyers, that the documents were directly relevant to the employee’s claim of discrimination, that the disclosure of the documents did not threaten the company’s operations, and the employee had a reasonable basis to believe that the documents would not have been produced during discovery.   Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010).

Ugh.  I should hope that it goes without saying but, wow, that is disturbing.

Thankfully, there are cases and courts that disagree with that approach.  For example, in an opinion from the normally employee-friendly Ninth Circuit, the court held that the plaintiff-employee could not support his age-discrimination claim with documents taken from his supervisor’s office.  Instead, the court explained,

[W]e are loathe to provide employees an incentive to rifle through confidential files looking for evidence that might come in handy in later litigation. The opposition clause protects reasonable attempts to contest an employer’s discriminatory practices; it is not an insurance policy, a license to flaunt company rules or an invitation to dishonest behavior.

O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756 (9th Cir. 1996).   The Ninth Circuit is not alone in rejecting the idea that an employee’s theft should be endorsed by the courts.   The Sixth Circuit reached a similar result in Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 718 (6th Cir. 2008).

Nevertheless, if you thought that your employees could not use stolen information against you, you may want to think again.  And then think about whether you have solid confidentiality and privacy policies in place.  More and more employers require employees to sign a confidentiality agreement every year.  And, with cases like Quinlan, this idea seems to be a prudent one.

ABA Journal Top 100 Legal Blogs: An Embarrassment of Riches

Posted by Molly DiBiancaOn November 26, 2013In: Delaware Specific, YCST

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Well, it’s happened again.  The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country for the fifth consecutive year.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again.  It is, as the saying goes, truly an embarrassment of riches. 

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To those who nominated us for the award, thank you. To all of our readers, thank you.  And to all of the many, many, many employment law bloggers whose posts continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with six other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area.  Most of you likely already read the blogs of my co-winners but, if you don't, you should. 

Here's the list of winners—we’re all repeat honorees, except for Trading Secrets, which we extend a warm welcome to the Winner’s Circle:

I’ve said it before but will say it again here because it’s more true than ever—I am in awe of my fellow honorees.  The time and work that they consistently devote to their blogs is just amazing.  I continue to be humbled by the company I have been permitted to keep. 

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really. You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list. So, as Frank and Ed used to say in those classic Bartles & James commercials, "Thank you for your support."

Violation of Non-Solicitation Agreement Via LinkedIn

Posted by Molly DiBiancaOn November 26, 2013In: Non-Compete Agreements

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Whether a former employee breaches her non-compete and/or non-solicit agreement by publishing her new job with a competitor to her LinkedIn contacts, many of which include “prohibited customers” is an unsettled question.  As you may imagine, the cases that address this question are few.  A recent opinion issued by a Massachusetts Superior Court may have addressed it more than it realized, though.

In KNF&T Staffing, Inc. v. Muller, the defendant-employee was employed by the plaintiff staffing firm for several years.  When she resigned, she was subject to a non-solicitation agreement, which prohibited her from recruiting or referring potential employees for placement in certain fields and industries.  The prohibition was in place for 1 year and applied only to placement with clients within a 50-mile radius of the plaintiff’s offices.  And, as I mentioned, it prohibited only her recruitment efforts for certain fields that she’d been responsible for at her former employer. 

At the time she resigned, she initially took a position in HR, in which she apparently was not charged with recruiting and referral duties, and, therefore, was not in violation of her agreement.  But, about five months after resigning, she went back to the recruiting industry, this time working for a competitor of her former employer.  The former employer sued, seeking to have her enjoined from what the employer asserted was activity in breach of the agreement.

Specifically, the employer alleged that she had attempted to solicit an employee from one of the employer’s customers.  The court found that, even if the solicitation had occurred, it would not have violated the agreement because the individual was not in one of the covered fields.  Thus, she was free to solicit as she liked.

Now, here’s where the LinkedIn twist comes in.  In a footnote, the court wrote that the same rule would apply “to the evidence that [the employee] currently has a LinkedIn profile disclosing her current employer, title, and contact information, and counting among her ‘Skills and Expertise’ such things as ‘Internet Recruiting,’ ‘Temporary Staffing,’ ‘Staffing Services,’ and ‘Recruiting.’”

The employee was free to recruit (i.e., solicit) in all fields and industries except those specifically identified in the non-solicitation agreement.  Thus, by posting on her LinkedIn profile that she recruited, as a general matter, did not violate the agreement.  What the footnote does not say directly but does seem to imply is that the answer may have been different if she’d included the prohibited fields and industries in her LinkedIn profile. 

Or at least that’s what a lot of my colleagues have written, anyway.

In reality, that’s not the case.  Even if she had included the prohibited fields in her LinkedIn profile, she would not have been in violation of the agreement unless she actually “solicited, recruited, or hired away” an employee in one of the prohibited fields and within the 50-mile radius.  Posting that this was a “skill or expertise” doesn’t mean that she’d actually engaged in it.  Considering it or advertising those skills would not violate the contract.  Only if she successfully put those skills to work to hire away an off-limits person would there be a potential breach of the contract.

Lesson Learned?  Non-solicitation and non-competition agreements are generally disfavored by courts.  Even in a state like Delaware, which is one of the most employer-friendly courts in this area of the law, will enforce contracts only to the extent that the contract requires it.  In other words, the words matter—a lot.  Have your contracts reviewed by trusted employment counsel.

KNF&T Staffing, Inc. v. Muller, No. 13-3676-BLS1 (Mass. Super. Ct. Oct. 24, 2013).

Winter Woes: Employment Discrimination Via Facebook

Posted by Molly DiBiancaOn November 24, 2013In: Hiring, Social Media in the Workplace

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Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought. Cold weather woes

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants. 

Perhaps it’s because the weather has turned cold in the Northeast and it’s put me in a cantankerous mood, but I take issue with the implications of these results. 

First, if a hiring manager has a bias, either consciously or subconsciously, against a particular class of candidates, he is no more likely to act on that bias merely because he learns that an applicant falls into the class via Facebook.  There are numerous studies that show that a candidate’s surname can impact whether he is called for an interview. 

Second, this discriminatory screening happens only if a candidate’s online information can be seen by the hiring manager.  The most recent data of which I am aware says that less than 25% of Facebook users maintain a public profile.  Good digital citizens who are seeking employment know not to keep their Facebook page public for all to see. 

Third, the WSJ article concludes with a quote from an employment lawyer, who reports that he "advise[s] employers that it’s not a good idea to use social media as a screening tool.”  Well, I’ve been saying it since 2005 and I’ll continue to say it now, hogwash.  The hiring decision should be made with great care. Internet searches for applicant information can be excellent tools, provided they are conducted in a legally defensible manner.  

Moreover, employers should not deny the reality that their hiring managers are searching online for information about a potential candidate.  Instead of turning a blind eye to this reality, employers are best advised to address it by implementing best practices to prevent unlawful discrimination, while still ensuring the best possible hiring decisions. 

See also, Screening Job Applicants with Facebook: Parts 1, 2, and 3

Another Facebook Firing Is Upheld

Posted by Molly DiBiancaOn November 11, 2013In: Public Sector, Social Media in the Workplace

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Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s. 

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

FMLA Master Class: Feb. 12

Posted by Molly DiBiancaOn November 5, 2013In: Family Medical Leave, Seminars

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Back by popular demand!  Our FMLA Master Class, presented in conjunction with BLR and HR Hero, is always the most requested seminar from clients and seminar participants.  So, at your request, we’ve brought it back. 

If your organization is subject to the Family Medical Leave Act or if you are nearing 50 employees, you should consider joining us on February 12, 2014, for this in-depth, full-day program. 

You can learn more about the program and register online.  We’ll look forward to seeing you then!

Oops! My Bad! Facebook Firing Based on Mistake

Posted by Molly DiBiancaOn November 5, 2013In: Social Media in the Workplace

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Contrary to popular belief, employees may be lawfully terminated for comments or pictures that they post on social-networking sites. The law also permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability.oops

The same rule applies in the context of social media. Thus, there will be no liability for an employer who lawfully terminates an employee based on online conduct even if it turns out that the conduct did not occur.

Take a recent decision from the Seventh Circuit as an example. In Smizer v. Community Mennonite Early Learning Center, the plaintiff was a teacher’s aide at a church-affiliated daycare center run by his mother. His mother informed the Center’s Board of Directors that the plaintiff had posted “horrible stuff” on his Facebook page and that she no longer felt safe in his presence.

She asked that the plaintiff be fired for “creating a hostile work environment” and then “set about gathering the evidence to dismiss him.” The plaintiff was later fired for “insubordination and unprofessional conduct” based on his alleged Facebook posting. The plaintiff, however, denied writing the post. And the Center never produced a copy of the alleged post.

The plaintiff sued, alleging he was terminated for a variety of discriminatory reasons. His termination was upheld, though, showing yet again that, so long as the termination is not based on unlawfully discriminatory reasons, no liability will attach.

Smizer v. Comm. Mennonite Early Learning Ctr., No. 13-1828 (7th Cir. Oct. 25, 2013).

Facebook Post Leads to Police Complaint, Leads to Termination, Leads to Lawsuit

Posted by Molly DiBiancaOn October 30, 2013In: Public Sector, Social Media in the Workplace

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Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party—not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers.  The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.

About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.”  The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school.  The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.

She was fired the following day.  She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.

Most of the claims were dismissed but her First Amendment claim survived.  She had, after all, alleged that she engaged in constitutionally protected activity—i.e., her Facebook post.  She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.”  And she was terminated the next day. 

Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss.  As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police—the party that she believes caused her employer to terminate her employment. 

Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor.  This tactic wouldn’t work in every situation—it works here only because the complaining party (the SAPD), is a public entity.  If private citizens had complained, the plaintiff would have had very different claims.  For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media

Do these cases indicate an expansion of likely defendants?  Will there be less lawsuits against employers or just more lawsuits altogether? 


Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 2013).

See also 11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

Your Employees Are (Still) Stealing Your Data

Posted by Molly DiBiancaOn October 29, 2013In: Electronic Monitoring, Policies, Privacy In the Workplace

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The Wall Street Journal recently reported some eye-opening results of a survey regarding information theft by employees.  Here are some of the most disturbing (though not surprising) findings from the survey:

  • 50 percent of employees kept confidential information post-separation;
  • 40 percent plan to use confidential information in their future employment; and
  • 60 percent say a co-worker has offered documents from a former employer

So what do these statistics say? In short, they say that your employees are stealing your intellectual propertyEmployee IP Theft

And here are two more interesting findings:

  • 52 percent of employees don’t believe that it’s a crime to use a competitor’s confidential business information; and
  • 68 percent of employees say their organization doesn’t take preventative measures to ensure employees don’t use competitive information.

So what do these statistics say? Well, they say that neither your former employees nor their new employers think there’s anything wrong with stealing and using your intellectual property.

These statistics don’t surprise me at all. Theft of confidential information by departing employees is an epidemic. In my experience, it is one of the biggest challenges faced by employers today. Perhaps the single biggest.

And making matters worse is the fact that most employers don’t know that it’s happening. But it doesn’t have to be this way. Here are some things every employer can do to limit the impact of this epidemic:

Have a policy. Employers should have a confidentiality policy that all employees are required to sign—separate from the employee manual is preferable.

Educate employees. Once is not enough. Employees should be required to re-sign the policy each year. Yes, really. This is a very serious problem and there is no such thing as being too proactive to prevent it.

Use technology. Employees walk away with your data in any number of ways but almost always in a way that involves technology, so put technology to work for you. For example, consider utilizing software that alerts IT any time an employee sends a large number of attachments via email. Limit access to Dropbox and similar cloud-storage sites from work devices.

Ask the tough questions. Even if you’ve done nothing to limit electronic theft beforehand, there’s no time like the present. Ask every departing employee to confirm in writing that he is not in possession of any company property (including in electronic form) and promise that, should he later discover that he does have your property, that he will return it immediately.

See also  Your Employees Are Stealing Your Data

UD Employees’ Confidential Info Hacked

What to Do If Your Employees’ Confidential Data Is Stolen

Computer Fraud and Abuse Act: Government to the Rescue of Employers?

Putting the Computer Fraud and Abuse Act to Work for Employers

Delaware Commission on Law and Technology

Posted by Molly DiBiancaOn October 25, 2013In: Delaware Specific, Locally Speaking, YCST

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Technology effects every workplace.  Readers of this blog know this well enough, as many of my posts address the wide variety of problems faced by employers that arise from employee use of technology, particularly social media.  Lawyers, too, face these problems.  The legal profession is, by no means, immune from the woes of social-media or the difficulties of trying to keep up with changing technology.  Technology’s impact on the legal profession is a topic near and dear to my heart. Delaware Commission on Law and Technology

Which is why I am so honored to have been appointed to Delaware’s newly formed Commission on Law and Technology.  The Commission was created by the Supreme Court of Delaware in response to a recent amendment to the State’s rules of professional responsibility requiring lawyers to maintain competence in technology.  Supreme Court Justice Henry duPont Ridgely, who will serve as the judicial liaison to the Commission, has explained that the Commission will be charged with creating a set of best practices in a variety of areas, including cloud computing, e-discovery, and, of course, social media.

The purpose of the Commission is to provide Delaware lawyers with sufficient guidance and education in the aspects of technology and the practice of law so as to facilitate compliance with our rules of professional conduct.  Although several states’ bar associations have issued advisory opinions on certain aspects of technology and its use, the opinions can be limited in scope, as they apply only to the specific set of facts posed by the inquiring attorney.  Thus, it is very exciting to be part of an official effort to broaden the information available to Delaware lawyers.

The collaborative nature of the Commission between the bench and bar is very reflective of our State’s cooperative spirit.  And the affirmative effort to provide guidance is very much in line with my preventative-practices philosophy.  For all of these reasons, I am looking forward to making a contribution to the Commission’s laudable mission and am proud (although not surprised) that our State is the first to launch such a commendable endeavor.

11th Cir. Upholds Facebook Discipline of Police Officer

Posted by Molly DiBiancaOn October 22, 2013In: Public Sector, Social Media in the Workplace

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Here’s another Facebook-firing case to add to the “win” column for public-sector employers. [FN1] The plaintiff-police officer, Maria Gresham, posted comments on her Facebook page critical of another officer’s involvement in an arrest Gresham had made. Her Facebook page was “set to private” but, of course, the Department got wind of the comments and an investigation was initiated.  Employee Speech

The plaintiff was alleged to have violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels . . . and not be used to the disadvantage of the reputation or operation of the Department or any employees.” [FN2]

While the investigation was pending, Plaintiff was not able to post for the several promotions that came open. Thus, she sued, alleging that she was not promoted in retaliation for her First Amendment speech on Facebook.

The District court held that, although the Facebook post did constitute protected citizen speech on a matter of public concern (thus satisfying 2 of the 3 requirements), the City’s interests in maintaining order and discipline outweighed the interest of the employee. The employee sued.

On appeal, the legal analysis came down to whether the employer was required to prove that the conduct at issue (the Facebook comments) actually caused a disruption or whether it was enough that the employer reasonably believed that a disruption would occur. The 11th Circuit sided with the government-employer, finding that the government has a legitimate interest in avoiding disruption. Therefore, the employer need not wait until an actual disruption occurs.

Yet another victory for public employers in the growing body of case law in the area of First Amendment free speech and social media.

[FN1] Technically, it’s a Facebook-failure-to-promote case. But you get the idea.

[FN2] Does this policy really work? Do employees go through “official channels” every time they want to gripe about a co-worker. If my employees were lined up outside my door to file petty complaints about who took whose sandwich from the shared refrigerator, I would surely run for the door.

Gresham v. City of Atlanta, No. 1:10-cv-1301-RWS, 2011 U.S. Dist. LEXIS 113347 (N.D. Ga. Sept. 30, 2011), aff’d No. 12-12968, 2013 U.S. App. LEXIS 20961 (11th Cir. Oct. 17, 2013).

See also

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

Employee Sues Rude Customer: End of Customer Service as We Know It?

Posted by Molly DiBiancaOn October 21, 2013In: Social Media in the Workplace

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Customer service is brutal. Anyone who has had to answer to the public as an essential component of his or her job duties will tell you. It’s positively brutal.

Even the best employees will not be able to satisfy every customer. The reality is that there are some people who just will not be happy no matter what the circumstance. Employees are expected to take it on the chin when a customer overreacts or complains without justification. Defamation Complaint

But what if an employee doesn’t want to just “let it go”? What if the employee feels that she’s been wronged by the customer who berates her or otherwise lashes out. What if the employee feels so wronged that she sues the customer?

That is precisely what happened in Patterson v. Herms. In short, the plaintiff-employee, Jennifer Patterson, was working as an operations agent for Southwest Airlines when the defendant, Natalie Grant-Herms, and her three children attempted to board a flight without a boarding pass. Patterson intervened and a confrontation ensued.

Afterwards, Grant-Herms tweeted her “displeasure” both with the airline and with Patterson. I’ll spare you the specifics but suffice it to say that the tweets were very typical of online rants—incendiary and accusatory half-truths.  (See Venkat Balasubramani’s post at the Technology and Marketing Law Blog for the tweets).

Patterson, acting without a lawyer, filed suit against the unhappy customer, alleging defamation and invasion of privacy. The customer moved to dismiss but her motion was denied. After the close of discovery, the customer tried again with a motion for summary judgment, which was granted by the trial court. Patterson appealed.

On appeal, the court affirmed the decision to dismiss the defamation claim but reversed on the invasion-of-privacy claim.  Although the decision may seem alarming, there are several factors that mitigate the impact.  For example, the plaintiff represented herself pro se, which gives her some leniency in her pleadings.

Nevertheless, it is somewhat unnerving to think that a handful of angry tweets will now result in a trial.

But what interests me even more is how Ms. Patterson’s employer must feel about this whole kafuffle. Imagine your employee sues a customer (even a really lousy one) over that customer’s online outburst (even a really outrageous one). Oh, it’s a whole new world, isn’t it?

Patterson v. Herms, No. M2013-00287-COA-R3-CV, 2013 Tenn. App. LEXIS 675 (Tenn. Ct. App. Oct. 8, 2013).

Court Finds Duty to Preserve Personal Emails of Employees

Posted by Molly DiBiancaOn October 15, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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The modern workplace presents a cornucopia of problems thanks to technology.  As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible.  After all, employees can just use their personal cellphones to get online.  Add to that reality the fact the growing popularity of BYOD policies. 

So what, you might ask?  Well, one big problem is when an employee uses his personal device or account for company business.  The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account. BYOD

In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

But a new case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).

[H/T Bow Tie Law Blog]