NY Court Says Unpaid Intern Not Protected by Harassment Laws

Posted by Molly DiBiancaOn October 9, 2013In: Harassment, Harassment, Sexual

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The employment-discrimination laws have been expanding since their creation.  And, most of the time, that’s a good thing.  But there are times when I wonder, “Have we gone too far?”  There was the bullying craze a few years ago, when there was a push to make bullying in the workplace unlawful.  Although no decent employer (or human being) thinks that bullying is an endorsable attribute, I am of the opinion that it cannot be regulated via statute.  unpaid intern

And there are the recent cases that have found that individuals who are in the country unlawfully have standing to sue under the wage-payment laws.  I fall on the side of the employees on this one, in case you are wondering.

I defended a harassment case once that was brought by the former employee and her company, which had done business with the employer and which she claimed was subject to retaliation in violation of Title VII.  I tried to explain to my opponent that Title VII—an employment law—applies only to employees.  And, although the statute defines employees very, very broadly, I felt pretty confident that entities cannot be “employed” in this sense of the word.  Thankfully, my prediction proved true in that case and the court dismissed the claims brought on behalf of the company.

But it seems not to be an entirely settled question.  A New York judge ruled last week that an unpaid intern was not an “employee” for the purposes of that State’s anti-discrimination law and, therefore, could not bring a claim of sexual harassment.  According to USA Today, Oregon is the only state in the country to extend sexual-harassment protection to unpaid interns. 

Here’s my entirely unsolicited and subjective opinion on the question.  It seems to me that there are likely other remedies available to an intern who truly has been harassed.  And not just legal remedies, but the remedy that involves you heading for the door and finding somewhere else to give your valuable time to without compensation.

Is it a shame?  Yes, most definitely.  Is it a disgrace to the perpetrator and the employer who continues to employ him?  Absolutely.  But, the lucky break about being an intern is that the point of the experience is to learn, not to support yourself or your family.  And it seems like there are plenty of lessons to be learned in this scenario.  But that does not necessarily mean that there is a lawsuit to be had, either—at least not under the employment-discrimination statutes. 

EEOC Ordered to Pay Big Fees for Pursuing Criminal-History Suit

Posted by Molly DiBiancaOn October 9, 2013In: EEOC Suits & Settlements, Hiring

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The EEOC suffered another defeat this week, being ordered again to pay the fees and costs incurred by an employer after the EEOC’s claims turned out to be without merit.  IN EEOC v. Peoplemark, Inc., A split 6th Circuit affirmed an award of approximately $750,000 in fees and costs incurred by a temp agency in defending against one of the EEOC’s criminal-history cases.  The EEOC contended that the temp agency’s company-wide policy barring employment to individuals with felony records had a disparate impact on Black candidates. Attorney's fees

The temp agency, PeopleMark, had offices in five states.  In 2005, a Black candidate, Sherri Scott filed a Charge of Discrimination, alleging that she had been denied employment because she had a felony conviction.  In fact, Scott had two felony convictions and had been released from prison less than a month before she applied for a job with PeopleMark. 

And it gets worse. 

The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents.  Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit.  The suit, asserted on a class of individuals, alleged that the company's policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.

The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons.  Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.

The EEOC eventually agreed to dismiss the case but, as you may imagine, PeopleMark was not exactly satisfied and it sought sanctions in the form of fees and costs incurred in the litigation in the amount of approximately $1.3 million. 

In March 2011, the U.S. District Court for the Western District of Michigan granted the motion and awarded approximately $750,000 in fees to PeopleMark.  On appeal, the 6th Cir. affirmed, finding that the employer was entitled to recover fees from the time that the EEOC learned or should have learned that PeopleMark did not have the policy as the EEOC had alleged.

EEOC v. Peoplemark, Inc., No. 11-2582 (6th Cir. Oct. 7, 2013).

See also

EEOC Faces Petition for $5.5m in Fees

W.D. Pa. Finds EEOC Failed to Conciliate

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far—Part 2

When the EEOC Goes Too Far

EEOC v. Ruby Tuesday

Boss Hacks Personal Email Account of Employee. Emotional Distress Follows.

Posted by Molly DiBiancaOn October 8, 2013In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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Another case involving employer access to an employee’s personal email account.  And the bad things that follow.

The plaintiff was an administrative assistant to the Athletic Director of a public school district in Tulsa, Oklahoma.  In her complaint, she alleged that she had reported that the Director and two Assistant Directors had “endangered the health and safety of students” and had “misappropriated funds.”  In other words, she was a whistleblower.  email hacked

Shortly after she made these reports, the Director suspended her and recommended that she be terminated.  She grieved the recommendation. 

Apparently during the grievance process, the plaintiff was contacted by the cyber-crimes division of the Tulsa Police Department, who informed her that her private email account had been hacked. 

She filed suit, alleging that the Director and two Assistant Directors intentionally obtained access to her private emails and used the information that they unlawfully obtained in order to pursue the recommendation to terminate her employment.  She brought several claims, including constitutional claims under the 1st and 4th Amendments, statutory claims under the federal and state wiretapping laws, and state tort claims.  The defendants moved to dismiss.

The opinion addresses several arguments on each claim but there are certain holdings that bear mention here. 

First, the plaintiff’s Fourth Amendment claim survived dismissal.  The court found that she had adequately pleaded that she had a reasonable expectation of privacy in her personal email account and that the hacking constituted an unlawful search and seizure of her account and/or emails in the account.

Second,  her privacy claim survived for the same reasons.  Basically, the court found that having your private email hacked and then the contents used against you in proceedings to have you terminated from your employment would be a “highly offensive” intrusion to a reasonable person.  This was further supported by the fact that the Tulsa Police Department considered her to be a victim of cyber-crime.

Third, the claim for intentional infliction of emotional distress survived, again, largely for the same reason.  The court concluded that the conduct could be plausibly deemed outrageous in nature.

I think many of us would agree that this motion to dismiss did not stand much of a chance.  (Although, the opinion is not very detailed in its description of the alleged events and did leave me with some unanswered questions about the actual allegations contained in the complaint.)  If an individual’s personal email account is intentionally targeted for hacking by anyone, it’s going to be a serious source of distress.  If the hacking is done by your direct supervisors for the purpose of making sure you lose your job because you (allegedly) blew the whistle about what you believed to be improper conduct, you are likely to be very close to “extreme” distress.  Wouldn’t you think?  The Northern District of Oklahoma did.

Murphy v. Spring, No. 13-cv-96-TCK-PJC (N.D. Okla. Sept. 12, 2013).

No Privacy Claim for Use of Student Facebook Picture

Posted by Molly DiBiancaOn October 6, 2013In: Privacy In the Workplace, Public Sector, Social Media in the Workplace

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At a seminar about Internet safety, the District’s IT Director gave a presentation designed to illustrate the permanent nature of social-media posts and how your posts could be embarrassing if published by third parties.  One of the slides in the Director’s presentation, titled, “Once It’s There—It’s There to Stay",” showed a photo of a student in a bikini and standing next to a life-size cut-out of the rapper Snoop Dog. camera lens

The Director found the picture by browsing students’ Facebook pages for pictures to use in his presentation.  Paper copies of the presentation, including the slide featuring the student’s picture, which also identified her by name, were distributed to attendees. 

As you may imagine, the student, Chelsea Chaney, was not happy about her cameo.  She filed suit against the district and against the IT Director, alleging violations of her constitutional rights protected by the 4th and 14th Amendments, as well as state-law tort claims.  The District moved to dismiss.

First, the plaintiff contended that the public display of her picture constituted an unlawful search and seizure in violation of the 4th Amendment.  In order for the 4th Amendment to apply, there must be a reasonable expectation of privacy.  Here, the court held that no reasonable expectation of privacy could exist in the picture because the plaintiff had voluntarily made it available to her friends and, because of her Facebook settings, to her friends’ friends, as well.  By doing so, Chaney surrendered any reasonable expectation of privacy in the picture.  Thus, the 4th Amendment claim was dismissed.

The court reached the same conclusion with respect to the 14th Amendment claim. The 14th Amendment protects an individual’s interest in avoiding the disclosure of personal matters and in making certain decisions.  But the constitution does not create a blanket right of privacy.  Nor does it create a right to be free from public embarrassment or damage to reputation. 

So, what are the lessons to be learned from this case?  Well, if nothing else, it serves as yet another reminder about the permanent and public nature of social-media content.  Once you post it, it is out of your hands and you have no legal recourse if it is republished to others.

From an employment-law perspective, there is another twist.  The District had various social-media and Internet acceptable-use policies, each of which would seem to have been violated by the IT Director.  For example, District employees were required to notify a student’s parents prior to “use of and interaction with a student’s social-media page.”  Here, the Director searched students’ pages for content he could use in his presentation. 

Call me crazy but this seems like a major lapse of judgment on the part of the IT Director.  It’s one thing to give real-life examples but altogether a different thing to use as one of those examples an actual student who will be present in the audience.  Seriously?  As if high school is not hard enough, man.

Chaney v. Fayette County Pub. Sch. Dist., No. 3:13-cv-89-TCB (N.D. Ga. Sept. 30, 2013).

See also Is There a Reasonable Expectation of Privacy In Your Tweets?

Discovery of Social-Media Passwords

Posted by Molly DiBiancaOn October 1, 2013In: Purely Legal, Social Media in the Workplace

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Access to social media in civil litigation remains a Wild West in many respects.  Parties don’t know what to ask for, so they ask for too much.  When the other side refuses, the court often agrees because the request is so obviously overbroad.  When it comes to discovery of social-media contents, the general rule of thumb is the narrower, the better.

But what about requests for passwords and user names?  I think most reasonable minds agree that employers should never ask an employee for his or her Facebook password.  So why are lawyers doing it?  Beats me, man.  It’s a terrible idea, no matter who makes the request. keyboard with blue lock key

A recent case in Louisiana seems to support this conclusion.  In NOLA Spice Designs, LLC v. Haydel Enterprises, Inc., the defendant sought to compel the plaintiff-entity and its principal to produce “passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records”  The court had little trouble concluding that the requests were overly broad and “far exceeded” what was considered proportional under the discovery rules. 

The court acknowledged that the plaintiffs had “no protectable privacy or confidentiality interest in material posted or published on social media.”  Nevertheless, the court explained that there was no reason that the plaintiffs should be required to give total access to their adversary, thereby allowing the defendant to roam around and, potentially, engage in “mischief.”

The court’s analysis is correct.  There is no basis to require a party to turn over social-media passwords during litigation.  In fact, it’s a terrible idea to do so.  And, in my opinion, lawyers are best advised not to request passwords in the first place.  Even if the other side is willing to turn it over, you risk any number of bad outcomes, such as spoliation of evidence.

One court feels at least as strongly as I do on the subject.  In Chauvin v. State Farm Mutual Automobile Insurance Co., a federal court in Michigan affirmed an award of sanctions against a defendant due to its motion to compel production of the plaintiff’s Facebook password.  The court found that the Magistrate Judge did not err in concluding that the content that the defendant sought to discover was available “through less intrusive, less annoying and less speculative means” even if relevant. Furthermore, there was no indication that granting access to the account would be reasonably calculated to lead to discovery of admissible information.  No. 10-11735 (S.D. Mich. Oct. 20, 2011). 

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013).

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

Posted by Molly DiBiancaOn September 30, 2013In: Purely Legal, Social Media in the Workplace

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Rules of ethics limit lawyers’ communications with certain groups of people.  For example, a lawyer may not communicate about a matter with a party who is represented by counsel.  Similarly, a lawyer may not communicate with jurors during a trial.  In some states, including Delaware, the prohibition on lawyer-juror communication continues even after the trial has concluded. 

Because of these ethics rules, the definition of “communication” is very important.  When I teach legal ethics and social media, I discuss “inadvertent” communications that can occur via social-networking sites.  For example, at my direction, my paralegal “follows” a juror on Twitter, the juror may receive an email notifying him of his new follower.  Is this a “communication”?   Yes, it probably is because my paralegal “followed” the juror for the purpose of seeing what he is tweeting that may be relevant to the case.   LinkedIN logo icon white

But what if the juror follows me on Twitter long before the trial.  During trial, the juror could view my tweets because they would appear in his timeline.  Would I have “communicated” with the juror?  Maybe. Assuming so, my communication would have been inadvertent, for sure. 

There’s another scenario that I give in this context that, unfortunately for all parties involved, has come to fruition.  In the Bank of America “hustle” case, one of the jurors has notified the court that one of the lawyers for the defense had reviewed the juror’s LinkedIn profile.  Judge Jed Rakoff of the S.D.N.Y. said that, when an associate had viewed the juror’s LinkedIn profile, the firm had “communicated” with the juror.  For those familiar with LinkedIn, you likely know that you can see who has “viewed your profile” within a certain period of time unless the user is not logged in or unless the user has a premium (paid) account, which enables him to block you from seeing his identity.

According to the WSJ’s MoneyBeat blog, the judge ruled that lawyers could conduct Internet research on potential jurors but only during the jury-selection period.  Once trial began, that research was supposed to stop.  (This, too, raises interesting questions.  Why wouldn’t the court want to know if jurors were engaged in misconduct online during the trial?  But that’s a whole different set of questions.)  Apparently, the court has determined “no harm, no foul” because the case will proceed as scheduled with an instruction to the jury that the search was a mistake that they should disregard.

This story, however, should serve as a lesson to lawyers everywhere—understand how social-media works and make sure those who are working for you do, too.  There are ethical implications, as well as the risk of significant costs to the client for failing to “get it.” 

See also, M. DiBianca, Ethical Risks of Lawyers’ Use of (and Refusal to Use) Social Media (Del. L. Rev. 2011) (PDF).

Why Employers Should Love, Not Loathe, Social Media

Posted by Molly DiBiancaOn September 26, 2013In: Social Media in the Workplace

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Human resource professionals often cringe at employees’ use of social media.  And for good reason.  Employees have caused countless problems for their employers by publishing confidential information, attacking supervisors and co-workers, and all sorts public-relations nightmares. Admittedly, social media causes a whole set of problems for employers that employers are still attempting to navigate.

But social media isn’t all bad. In fact, there are lots of benefits to be realized from employee social-media use.  Let me suggest one that doesn’t get a lot of attention.  I call it, “the cream rises” thesis. 

Although employers often think that they cannot discipline employees for what they do in their off-duty time, that, usually is not the case. Most times, employers can address conduct that occurs in cyberspace.  In fact, sometimes employers must do so.  And, despite the hype about the NLRB and its general distaste for social-media policies, the reality is that, most of the time, it is totally lawful to discipline employees for social-media conduct that conflicts with the employer’s policies or is in some way harmful to the employer.

The basic premise of my thesis is this: Instead of cringing when an employee acts like an idiot on social media, employers should rejoice—social media enables employers to weed out the problem employees who infect the workplace culture with negativity.  Without social media, these employees are difficult to manage. We know who they are but it’s often quite difficult to prove the harm that their negativity is causing. But social media gives you the proof that you need.

Take, for example, the nurse at the University of Mississippi Medical Center. In response to a tweet by Gov. Barbour calling for suggestions about how to trim fiscal spending, the nurse tweeted back that the Governor should stop coming to the Center after hours for wellness visits, which resulted in overtime costs.

The Governor had visited the Center once after normal operating hours but that was before the nurse’s employment. In other words, she was just a negative employee who couldn’t help but make a nasty comment about which she had no personal knowledge.

Well, good for her.  And good for the Center.  The Center was able to terminate the nurse because her nasty tweet was a violation of HIPAA.  Had it not been for her public comment via social media, the employer likely would not have had such indisputable proof of her nastiness. And, because her nastiness was unlawful, the Center had perfectly legitimate grounds to terminate her.

In other words, the cream rises to the top.  The nasty employees who you do not want to keep employed almost can’t help themselves but to show their true colors via social media.  And that’s a good thing because it enables employers to act sooner rather than later to eradicate these people from the workplace.  Which non-nasty employees really appreciate.

Thanks to my friend and blogger extraordinaire, Venkat Balasubramani, whose post earlier this week prompted me to write on this topic.

New Laws Gives New Rights Delaware First Responders

Posted by Lauren Moak RussellOn September 19, 2013In: Delaware Specific, Discrimination, Discrimination & Harassment, Legislative Update

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Delaware extended employment rights to volunteer firefighters and other first responders who must miss work due to emergencies or injuries sustained while providing volunteer rescue services.

Volunteer Emergency Responders Job Protection Act

Governor Markell signed two new bills affecting the employment rights of Delaware's emergency responders. Under the Volunteer Emergency Responders Job Protection Act, employers with 10 or more employees are prohibited from terminating, demoting, or taking other disciplinary action against a volunteer emergency responder because of an absence related to a state of emergency or because of an injury sustained in the course of his or her duties as a volunteer emergency responder.

The Act defines a "volunteer emergency responder" as a volunteer firefighter, a member of the ladies auxiliary of a volunteer fire company, volunteer emergency medical technician, or a volunteer fire police officer.

Importantly, while an employer may not discipline or terminate an employee for being absent when performing emergency services, the employer is not required to compensate the employee for time away from work to perform such services. The employee also has an obligation to make "reasonable efforts" to notify the employer of a possible absence.

Under the Act, employers are also entitled to verify that an employee was absent due to emergency service or a related injury. Employers may request a written statement confirming relevant facts from either the volunteer department with which the employee serves or from a treating medical provider. The employer is entitled to the statement within 7 days of making such a request.

Amendment to the Delaware Discrimination in Employment Act

The second bill signed into effect amends the Delaware Discrimination in Employment Act, to provide protection to volunteer firefighters, ambulance personnel, and ladies auxiliary members. More specifically, the bill makes it unlawful for employers to refuse to hire, discharge, or otherwise discrimination as to the terms and conditions of employment based on an individual's service rendered to a volunteer fire or ambulance company or related ladies' auxiliary.

Bottom Line

The bottom line is that Delaware employers have one more protected classification to be aware of. Hopefully these new restrictions will not impose a significant burden upon employers--comments made in connection with the bill signing indicate that the bills are a reaction to a single incident affecting an injured firefighter working in Wilmington. However, as always, employers need to give careful consideration to the circumstances impacting hiring and disciplinary decisions.

Workplace Revenge and the Equal Opportunity Jerk

Posted by Molly DiBiancaOn September 17, 2013In: Harassment, Harassment, Sexual, Jerks at Work

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Being a jerk is a legal defense, so to speak.  An “equal opportunity jerk” is a boss who treats everyone badly, regardless of race, religion, gender, etc.  If his subordinates sue, alleging an unlawful hostile environment, they’ll likely have trouble establishing that the jerk was more of a jerk to one particular group of employees based on a protected characteristic. 

It is a defense that defense lawyers prefer to not to have to invoke. Nevertheless, when the facts are there, even an unattractive defense can be a winner. Take, for example, the Third Circuit’s decision in Clayton v. City of Atlantic City. 

people backstabberThe plaintiff was a police officer in the Atlantic City Police Department, who alleged that she was subject to the sexual advances of a senior officer.  This went on for a number of years until, eventually, she came under his direct supervision. 

As her supervisor, she alleged, he gave her a less desirable work schedule and singled her out for various minor policy violations.  Another senior officer also disciplined her and reprimanded the plaintiff for other policy violations, which the plaintiff alleged were common practice throughout the Police Department, such as leaving the city limits without permission for lunch and for rolling her eyes during roll call.  She was eventually transferred to a different unit, which resulted in a pay decrease.

The plaintiff alleged that she was transferred because of her gender.  But she also testified to what she described as a “revenge management” culture in the department.  That culture, as she described it, meant that if you were not liked by a superior, regardless of gender, it was common for the superior to attempt to undermine your career.

It was this “culture of revenge” that resulted in the dismissal of the plaintiff’s suit.  The court reasoned that an attitude of “revenge” is not unlawful, provided it is equally applied without regard to race, religion, gender, etc.  Here, there had not been gender discrimination because males and females alike were subject to the punishments of dissatisfied supervisors.

Although this case makes an excellent teaching example, it’s not exactly one I would recommend as "inspirational.”  Equal opportunity jerks may not be in violation of the anti-discrimination laws, but, boy, they sure do get sued a lot.

Clayton v. City of Atlantic City, No. 12-4273 (3d Cir. Sept. 12, 2013).

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Posted by Molly DiBiancaOn September 10, 2013In: Cases of Note, Delaware Specific, Privacy Rights of Employees

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Does an employee who communicates with his lawyer from a company email account waive the attorney-client privilege with respect to those communications?  The answer is not terribly well settled—not in Delaware and not in most jurisdictions.  But a recent decision by the Delaware Court of Chancery gives Delaware employers and litigants a pretty good idea of the analysis to be applied.

The case, In re Information Management Services, is an unusual type of derivative litigation in that it involves two families, each suing the other for breaches of fiduciary duty.  Two of the company’s senior executives, who were alleged to have mismanaged the company in violation of their fiduciary duties, sent emails to their personal lawyers from their company-issued email accounts.  During discovery, the executives refused to produce the emails, claiming them to be protected by the attorney-client privilege.  The plaintiffs sought to compel production of the emails.

The court adopted the four-factor test first enumerated in In re Asia Global Crossing, Ltd. (Bankr. S.D.N.Y. 2005), and applied it to determine whether the executives had a reasonable expectation of privacy in the contents of the emails that they sought to protect.  The court determined that the executives did not have a reasonable expectation of privacy in the contents of the emails because the company’s policy expressly warned that employee emails were “open to access” the company’s staff.  The policy permitted personal use of the company’s computers “after hours” but warned that, if an employee wanted to keep files private, the files should be saved offline.  Thus, the policy was key in ensuring the company can now access emails between the executives and their counsel.

There are a few particularly notable points in the decision that are worth mention. 

First, Delaware law generally provides great deference to the attorney-client privilege.  Usually, the privilege is considered very difficult to waive.  By contrast, this case suggests that a company policy is sufficient to overcome that otherwise difficult hurdle.  The court goes so far as to say that a policy that prohibits all personal use would likely be sufficient to waive the privilege without any further analysis.

Second, the court seemed to place a high burden on the executives. Vice Chancellor Laster recognized that the executives wrote in the subject lines of the emails, “Subject to Attorney Client Privilege” but concluded that the failure to use webmail (such as G-Mail or Yahoo!) or encryption rendered the communications not confidential.  The court wrote that there could be no reasonable expectation of privacy because:

a third party to the communication had the right to access [the] emails when [the executives] communicated using their work accounts.

The “third party” in this case was the company and its IT staff. But the holding raises questions of whether use of a service such as Dropbox, which, by its terms of service, expressly notifies users of its right to access the contents of any account, would also waive the privilege.  In that case, a third party has the right to access contents so, in accordance with the court’s decision, there could be no reasonable expectation of privacy and, therefore, no privilege.

The decision is very well researched and contains a stockpile of case citations and references for those who may be interested in the subject matter.  And even for those who may not be interested in the macro view of this area of the law, there is one key lesson to take away—Delaware employers should carefully review their policies to ensure that the language clearly warns employees that the company reserves the right to monitor, access, and/or review all emails sent or received from a company email account.  Now, the question of whether a personal, web-based email account, accessed via the company’s servers, would be subject to the same analysis is an even trickier one and one that we’ll save for a later date. 

In re Info. Mgmt. Servs., Inc., No. 8168-VCL (Del. Ch. Sept. 5, 2013).

NLRB Smacks Hand of Employer Over Facebook Firing

Posted by Molly DiBiancaOn September 9, 2013In: Social Media in the Workplace, Union and Labor Issues

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The NLRB issued another social-media decision last week, finding that an employer violated the National Labor Relations Act (NLRA) with respect to one “Facebook firing” but clearing the employer with respect to a second termination.  I’ll leave it to my blogging cohorts to write about the termination that didn’t get the employer into trouble and will focus in today’s post just the one that did.Employment Law Cookies

The Facebook firing that landed the employer, a Maryland ambulance company, in hot water was in response to an employee’s comment, posted on a former co-worker’s Facebook page.  The former co-worker, the complainant’s partner, posted on her Facebook page a note indicating that she’d been fired by the employer.  The complainant, William Norvell, and others, posted comments in response.  One of Norvell’s comments was a suggestion that his former co-worker get a lawyer and take the company to court.  Later, he added that she also “could contact the labor board.”  Someone turned over a printed copy of the posts to the HR Director who, after consulting with the COO, decided to terminate Norvell. 

I hope it doesn’t surprise most readers that the Board was not happy about the decision to terminate and found that the termination violated the NLRA.  One of the basic foundations of employment law is this:

Thou shalt not take adverse action against an employee in response to the employee’s protected activity.

The law (several laws, actually), prohibits this.  It’s called retaliation.  In non-legalese, I equate retaliation to telling a child he may have a cookie, holding out the cookie jar, and then smacking his hand when he proceeds to take one.  You may not punish someone for doing what the law provides he may do. 

Applied in this context, the former co-worker certainly had a right to consult a lawyer.  She also had a right to contact “the labor board,” whether that meant the state Department of Labor or the Regional Office of the NLRB.  If her termination had been for lawful reasons, the lawyer, with any luck, would have told her so.  So, too, would the DOL or NLRB.  And, armed with that knowledge, she could move on with her life.  But she had a right to investigate her legal rights either way.

And, in turn, Norvell had a right to suggest or even encourage her to investigate those rights.  Consequently, Norvell was engaging in protected legal activity for which he could not be “punished” (or, as we like to say in the law, “be subjected to an adverse employment action”). 

Butler Med. Transport, LLC, 5-CA-97810, -94981, and –97854 (Sept. 4, 2013).

See also:

Lawful Employer Investigations via Facebook . . . Sort of

Why the NLRB Is Its Own Worst Enemy

Another Dizzying Ride on the NLRB Roller Coaster

I Heart Confidentiality. The NLRB Does Not.

Pop Goes the Weasel . . . And the NLRA

NLRB Upholds Legality of Facebook Firing

Sticks 'n Stones May Break Your Bones, But Workers Can Defame You

Is the NLRB In Need of a Dictionary?

The NLRB's New Webpage Targets Your Employees

Employer Failure to Preserve Employee Social-Media Evidence

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

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It’s seminar season again, which means I’m spending a lot of time preparing for upcoming speaking engagements.  For several of the engagements, I’m also preparing written materials that require a good deal of research.  I say this, in part, in the hopes that you’ll forgive my reduced posting schedule but, also, as a lead-in to today’s post.  I came across this case, which was decided in January, in the course of my recent research. Although it’s not hot-off-the-presses recent, it’s recent enough and important enough that it warrants a blog post.  So here goes. 3d man surrounded by laptops

The case, In re Pfizer, Inc. Sec. Litig., was brought by a class of shareholders and related to two of the company’s pain-relief drugs.  The particular decision of interest was on motions brought by both sides seeking sanctions for failure to preserve electronic evidence.  The part that relates to employers specifically is the allegation of the plaintiffs that Pfizer failed to preserve employee “eRooms.” 

An eRoom was "a collaborative application” for company employees to “share documents, share calendars, archive email, conduct discussions/instant messaging, and to conduct informal polls.”

When the plaintiffs sought discovery of documents “sent to or maintained” in one of the company’s eRooms, Pfizer’s counsel discovered that the company had decommissioned the used of eRooms.  The company had archived the eRooms and their contents but, when the archives were restored for production in the litigation, only the documents (and corresponding metadata) that existed in them at the time they were archived could be recovered.  In other words, the restored eRoom reflected information only as it existed when the eRoom was archived. 

The good news was that the documents saved in the eRooms were mostly duplicative of documents saved elsewhere in the company’s network, so they had likely been captured and produced as part of the discovery process.  However, the court found, the eRooms had value in and of themselves as compilations.  Therefore, Pfizer had a duty to preserve them and failed to do so.

Nevertheless, the court found that the company’s conduct was, at worst, negligent.  The company instituted a litigation hold and preserved and produced a tremendous volume of information in the course of discovery.  There was no evidence that the failure to preserve and produce the eRooms was intentional or willful.  Furthermore, the court found that plaintiffs had not shown that they were deprived of relevant evidence as a result of the failure to preserve.  Thus, the court determined that sanctions were not appropriate.

The real take-away from this case is a reminder of how difficult it can be to truly capture all sources of electronically stored information used in an organization.  An employer who provides employees with technological resources like eRooms and other internal collaboration and knowledge-management platforms take on the added burden of having to preserve the data those platforms contain in the event of litigation. 

In other words, the more tools you have and the more advanced the tools are, the more difficult the burden in litigation. 

In re Pfizer, Inc. Sec. Litig., 288 F.R.D. 297 (S.D.N.Y. Jan. 8, 2013).

Too Creepy to Win: Employer Access to Employee Email

Posted by Molly DiBiancaOn September 4, 2013In: Privacy In the Workplace, Privacy Rights of Employees

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Employee accesses her personal, web-based email account, such as G-Mail, from her employer’s computer. As a result, employer has access to the account. Employee resigns and sues the employer alleging unlawful discrimination, harassment, or other employment-related claim. May the employer lawfully access the emails sent by the employee that are now available via the employer’s computer?

It depends, of course. (You didn’t really think I was going to give you a straight yes or no, did you?)Employee Personal Email

There are a number of factors that go into answering this question. And, although it’s tempting, I’m not going to discuss all of them here. Instead, I am going to discuss a case from a federal court in Ohio that involves some similar—and some different—facts with an important lesson for a holding.

The case is Lazette v. Kulmatycki. The employee-plaintiff, Lazette, alleged that she was issued a Blackberry by her employer, a Verizon affiliate. Lazette claimed that she was permitted to use the phone to access both her work and personal email accounts. She alleged that, at the end of her employment, she turned the phone in to her supervisor, defendant Kulmatycki. At that time, she believed she had disconnected access to her personal G-Mail account.

As it turns out, claims Lazette, she hadn’t. And, for the next 18 months, her former supervisor read “48,000 emails” sent to Lazette’s G-Mail account.

Yikes.

Lazette, not surprisingly, sued the supervisor and her former employer for a variety of privacy-related claims. Somewhat surprisingly, at least to me, the employer moved to dismiss the claims. A motion to dismiss, at least ‘round these parts, is a tough motion to win. The standard is very much in the plaintiff’s favor and, unless there’s really nothing in the complaint that resembles a valid claim, the court is likely to deny a motion seeking dismissal prior to discovery.

But that’s what the employer did. As a result, we get the benefit of the court’s analysis of a question not often addressed in written decisions.

The most interesting part of the analysis to me is the part discussing the plaintiff’s Stored Communications Act (SCA) claim. The plaintiff asserted that the supervisor and employer violated the SCA when the supervisor accessed the plaintiff’s personal email without authorization.

Although the SCA is a tremendously complicated statute that has been interpreted in more ways than I can count, it seems to easily apply to the facts alleged here. In the simplest terms, the SCA is violated when an individual accesses without authorization an electronic communication in storage.

Surely the employee’s emails constitute electronic communication. Surely they were in storage—the complaint did not allege that the defendants intercepted the emails while they were being transmitted. The complaint alleges that the supervisor read the emails once they’d reached the plaintiff’s G-Mail account. So the question, then, is whether the supervisor was an “authorized user” under the statute.

Folks, let me offer a humble thesis here. If it sounds “bad,” meaning that it is likely to give most people the creeps, the courts will apply the law to remedy that bad act. In other words, a defense of “but the law does not prohibit me from being a slimy character” should be a defense of last resort.

Now, don’t get me wrong—that was not the defense asserted in this case. But it was close. In their motion to dismiss, the defendants argued that the supervisor was “authorized” to access Lazette’s email account because, for example, she failed to properly delete the account from her phone before turning it in. They also argued that she failed to tell them not to access her personal emails during the 18 months following the end of her employment.

Both of these constitute what I like to call a “blame-the-victim” defense. This, too, should be considered a defense of last resort.

At the end of the day, the court was faced with allegations (which the court, at this stage, must take as true), that an employee’s former supervisor essentially spying on the former employee by reading her personal email without her knowledge or consent. And he did so for a year and a half.

It’s creepy. It may not be true. But, as pleaded, it sounds creepy. With allegations like this, it’s hard to imagine that a motion to dismiss would be successful. And it wasn’t.

Now, that doesn’t mean that the employer is lost at sea. The employee still must prove damages, for example. Oh, wait, no it doesn’t. Even if the plaintiff cannot prove actual damages and, therefore, is not entitled to recover statutory damages, she may still be entitled to an award of punitive damages. At least that’s what the Fourth Circuit held in 2009 in Van Alstyne v. Electronic Scriptorium, Ltd., when it upheld an award of punitive damages to an employee whose former employer accessed the employee’s AOL account in search of evidence in defense of the employee’s harassment lawsuit.

I’m all for silver linings but they may be difficult to find in this case.  Just remember, if the alleged conduct gives you the creeps, it’s probably a good idea to consider whether settlement discussions aren’t in order.

Lazette v. Kulmatycki, No. 12-2416 (N.D. Ohio June 5, 2013).

See also

Lawful Employer Investigations of Facebook . . . Sort Of

Employers, Facebook, and the SCA Do Not a Love Triangle Make

Lawful Employer Investigations via Facebook . . . Sort of

Posted by Molly DiBiancaOn August 30, 2013In: Social Media in the Workplace

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New Jersey became the 12th state in the U.S. to enact a so-called “Facebook privacy” law yesterday, when Gov. Christie signed the bill into law. Keeping with the theme, here’s a post about an interesting new decision from a federal court in the Garden State, Ehling v. Monmouth-Ocean Hospital Service Corp., No. 11-03305-WJM (D.N.J. Aug. 20, 2013).how_to_permanently_delete_or_deactivate_facebook_account

Ehling worked for Monmouth-Ocean Hospital as a registered nurse and paramedic. She was not exactly a dream employee from management’s perspective. She was President of the Union and, in that capacity was “regularly involved in actions intended to protect [hospital] employees.” For example, she filed complaints with the state and federal EPA over the hospital’s use of a certain disinfectant that allegedly caused health problems for employees. She also testified on behalf of another employee is a wage-and-hour lawsuit.

Ehling, of course, had a Facebook account, which was viewable only to her Facebook friends. Although she was “friends” with many of her coworkers, she was not Facebook friends with any managers at the hospital.

For reasons that are not explained in the court’s opinion, one of Ehling’s Facebook friends, Ronco, took it upon himself to start taking screenshots of Ehling’s Facebook wall and sending them to his real-life pal, Caruso, who happened to be a manager in another department.

One of Ehlings posts included commentary about a shooting by a white supremacist at the Holocaust Museum in Washington D.C. Ehling “blame[d] the paramedics” who saved the shooter. She complained that the paramedics should not have come to the shooter’s rescue and the other guards should “go to target practice.” When management found out about the post, Ehling was temporarily suspended with pay.

Ehling, as you may imagine, filed a complaint with the NLRB, which, perhaps surprisingly, was dismissed. The Board found that suspension did not violate the National Labor Relations Act and that there was no privacy violation because the post was sent, unsolicited, to management.

Not to be deterred, of course, Ehling filed suit in federal court, asserting a laundry list of claims. The most interesting of those claims, however, are the claims brought under the Stored Communications Act (SCA) and an invasion-of-privacy claim. The hospital filed a motion to dismiss but the court denied it, finding that, because the law regarding social media is new, each case involving Facebook privacy claims must be reviewed on a case-by-case basis. (For the record, I disagree with that conclusion.)

So the case went forward. After discovery, the hospital again filed a motion for summary judgment. The court granted the motion as to the SCA claim and the privacy claim. But it got to those decisions in a most belabored way.

With respect to the SCA claim, the court first determined that non-public Facebook posts are “stored electronic communications” under the SCA. Although the SCA is a terribly complicated statute, the tremendous level of detail the court went through to reach this conclusion surprises me. The answer seems fairly obvious but perhaps that’s only the case in my over-simplified view of the statute.

Next, the court had to decide whether the hospital was “authorized” to view the posts. The court concluded that, because Ronco was Ehling’s Facebook friend, he was an authorized user, so he was able to “authorize” the hospital to view any post he could view.

All of this sounds right. But here’s the part that troubles me. Caruso (the manager), never viewed or accessed Ehling’s Facebook page. All he saw were screenshots, taken by Ronco and either emailed or printed out. I have trouble with the idea that an image printed onto a piece of paper can constitute a “stored electronic communication.” Come again? A piece of paper is an electronic anything? How can that be?

Although I think the court reached the right conclusion, I think it got there via an overly complicated and somewhat troubling analysis.  My friend, Venkat Balasubramani, at the Technology & Marketing Law Blog, seems to agree.

P.S. Ehling was suspended—not terminated. Hence, she was, as far as we know, still employed throughout the entire ordeal. The Facebook post was 2009, the court opinion came out this month in 2013.  Talk about awkward.  And, worse, a retaliation claim waiting to happen, no doubt.  TGIF!

Why the NLRB Is Its Own Worst Enemy

Posted by Molly DiBiancaOn August 21, 2013In: Union and Labor Issues

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The NLRB’s social-media war has been front and center for employers since 2010.  Decisions by administrative law judges and by the Board itself, as well as advisory memoranda from the Acting General Counsel have created an impossible patchwork of prohibitions and rules that, if followed, would make managing an efficient workforce effectively impossible.  And it doesn’t stop there.

But social media hasn’t been the only target in the NLRB’s sights. There have been a series of decisions and other events that, if taken seriously, make the NLRB seem more out of touch than ever.  The Board’s positions have become so extreme that, in my opinion, they’re likely to work to employers’ advantage as the public disgust grows. Here are a few of the reasons that I believe the NLRB is likely its own worst enemy.

NLRB Message No. 1:  Racist Language and Racially Insensitive Displays In the Workplace Are Perfectly Acceptable

An employee wore a shirt with “slave” and a picture of a ball and chain printed on the back.  The employee, who was a known union supporter, was disciplined pursuant to the employer’s dress-code policy, which prohibited clothing displaying: (a) vulgar or obscene words or phrases; (b) images that may be racially, sexually or otherwise offensive; or (c) content that is derogatory to the Company.  An ALJ found that the dress code was unlawfully overbroad because it prohibited protected concerted activities and racially or sexually discriminatory language.

NLRB Message No. 2:  The Supreme Court Ain’t the Boss of Me

In 20__, the Board issued its D.R. Horton decision, in which it held that employees could not waive their right to bring a class action under the NLRA. Earlier this year, though, the U.S. Supreme Court ruled in American Express v. Italian Colors Restaurant, that arbitration agreements should be enforced.  But the AmEx case was brought under antitrust law, not the NLRA, so it did not directly overrule D.R. Horton.  Nevertheless, many employment lawyers believe that the ruling in AmEx would effectively overturn the Board’s ruling.

Well, an ALJ disagrees. On Monday, a judge found that a mandatory arbitration agreement, which waived the right to pursue a class action, violated the the NLRA. Instead of following the Supreme Court’s direction as stated in the AmEx case, the judge ruled that she was bound by the Board’s decision in D.R. Horton unless and until it was overturned.

NLRB Message No. 3:  Your Business Is the Board’s Business

In a decision that shocked many employer’s lawyers, the Board affirmed the decision of an ALJ, which held that a confidentiality requirement violated the NLRA. Specifically, the employer’s mortgage bankers were required to sign employment contracts, which included a confidentiality provision that precluded those employees from disclosing certain personnel information, including: (a) “personal information of coworkers;” (b) home phone numbers or cellphone numbers; (c) addresses; or (d) email addresses. 

Again, the ALJ determined that this provision was overly broad in violation of the NLRA.  Most troubling to me is that the Board saw fit to take on language in a contract as opposed to in an employee handbook.  Delaware law heavily favors the enforcement of contracts, including employment contracts. The NLRB seems to take the position that the ability of parties to negotiate and execute contracts is irrelevant.

A Message for Employers

Although the recent decisions by the NLRB have been frustrating for employers (to put it mildly), there is a bright side. It may well be that the NLRB’s position has become so extreme that it has managed to get the attention of more and more employers.  And the attention has not been positive. If the NLRB continues in this direction, it may just result in more harm than the Board expects.