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.

2d Cir. Drops the FLSA Hammer

Posted by Molly DiBiancaOn August 12, 2013In: Fair Labor Standards Act (FLSA), Wages and Benefits

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The FLSA continues to wreak havoc for countless employers. I’ve written numerous times about the difficulties in defending against a claim brought under the FLSA or its state counterparts.  Even meritless claims can be incredibly costly to litigate, leaving many employers feeling like they have no choice but to settle. I believe the term I’ve used on more than one occasion to describe such situations is “legal extortion.” 3d man with hammer

There are, however, some small glimmers of hope from the courts. I’ve written about a line of cases that have rejected plaintiff’s auto-deduction cases.  I also wrote recently about an 8th Cir. decision, Carmody v. Kansas City Board of Police Commissioners, in which the court awarded summary judgment against a class of plaintiff-police officers who failed during discovery to identify with specificity the hours they claimed to have worked but not been paid. This decision was a very big deal for employers.  Which is why a new decision from the 2d Circuit offers even more hope that the law will trend towards dismissal of meritless cases involving legal extortion.

In Dejesus v. HF Management Services, LLC, the plaintiff’s overtime claim was dismissed by the trial court because her complaint did not include “any approximation of the number of unpaid overtime hours worked, her rate of pay, or any approximation of the amount of wages due.”  Instead, her complaint merely alleged that she worked more than forty hours per week during “some or all weeks” of her employment.

On appeal, the 2d Cir. affirmed the decision of the trial court, finding that the plaintiff had not plausibly alleged that she worked overtime without proper compensation under the FLSA.  The court reiterated the standard that it had announced in Lundy v. Catholic Health System of Long Island, decided earlier this year.  Specifically, the standard requires a plaintiff to sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” 

In Lundy, the court did not go so far as to require that the plaintiff include an approximation of the number of overtime hours sought but it did say that including such an approximation “may help draw a plaintiff’s claim closer to plausibility” and thereby avoid dismissal.

Perhaps the most powerful part of the court’s opinion in Dejesus was the acknowledgment that the information about the plaintiff’s allegations rest squarely with the plaintiff.  As the court explained, if an employee has absolutely no recollection whatsoever about the times worked, then he or she should not have pursued a claim in court. 

Hopefully, this trend continues and, with any luck, courts in other circuits will begin to adopt this reasoning in FLSA cases.

Dejesus v. HF Mgm’t Servs., LLC, No. 12-4565 (2d Cir. Aug. 5, 2013).

See also

Another Auto-Deduct Case Bites the Dust (Raposo v. Garelick Farms, LLC (D. Mass. July 11, 2013)).

8th Cir- FLSA Plaintiffs Must Spell It Out (Carmody v. Kan. City Bd. of Police Comm’rs (8th Cir. Apr. 23, 2013)).

2d Cir- FLSA Does Not Cover Gap Time (Lundy v. Catholic Health Sys. (2d Cir. Mar. 1, 2013)).

Another Employer's Auto-Deduct Policy Is Upheld (Creeley v. HCR ManorCare, Inc., (N.D. Ohio Jan. 31, 2013)).

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation (White v. Baptist Mem'l Health Care Corp. (6th Cir. Nov. 6, 2012)).

The Legality of Automatically Deducting Meal Breaks (Camilotes v. Resurrection Health Care Corp. (N.D. Ill. Oct. 4, 2012)).

E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks, Part I and Part II (Lynn v. Jefferson Health Sys., Inc. (E.D. Pa. Aug. 8, 2012)).

FLSA Victory: Class Certification Denied (Pennington v. Integrity Comm’n, LLC (E.D. Mo. Oct. 11, 2012)).

Kansas Court Mitigates the Risks of a BYOD Workforce

Posted by Molly DiBiancaOn August 12, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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BYOD at work is all the rage. What is BYOD, exactly? Well, it stands for “Bring Your Own Device” and, put simply, it means that an employee uses his own smartphone, tablet, or laptop for work as well as for his personal purposes.  BYOD policies raise several concerns, including increased security risks and wage-and-hour issues for work performed at home.  Another issue is one of particular interest to litigators like me—the question of how BYOD policies will affect e-discovery.  In other words, will an employer be on the hook for the preservation of its employees’ personal devices if those devices are used for work and for personal purposes? Discovery of text messages

The answer to this question can have wide-reaching impacts. For example, if the answer is, “yes,” the employer would be responsible for ensuring that each such device is preserved immediately upon the threat of litigation. But telling your employees to submit their personal smartphones to the company’s lawyers is probably not going to go over so well. 

A recent case from a federal court in Kansas gives hope to employers who want to permit employees to use their own devices without risking liability for failing to preserve those devices should litigation arise.  In Cotton v. Costco Wholesale Corp., the District of Kansas denied the employee-plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones. The court’s decision was based on the fact that the employee had not shown that the employer had any legal right to obtain the text messages.  In other words, that the phones and the data they contained were not in the “possession, custody, or control” of the employer.

The court also based its decision on the absence of any evidence that the employees had used their phones for work-related business. Although it wasn’t the controlling factor in the outcome of the case, the fact that it was mentioned by the court is likely enough to give future litigants grounds to argue that where BYOD is the standard policy—officially or unofficially—there is a basis to compel production. But, for now, this decision is definitely a positive sign for risk-adverse employers.

Cotton v. Costco Wholesale Corp., No. 12-2731 (D. Kan. July 24, 2013).

H/T Jay Yurkiw at Porter' Wright’s Technology Law Source blog.

Bra-Less Investigative Reporter Fired for Blog Post

Posted by Molly DiBiancaOn August 6, 2013In: Social Media in the Workplace

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Yes, America, there is such a thing as too much information.  But, at least when it comes to social media, we’ve not yet figured that out.  Exhibit A: Alabama TV reporter, Shea Allen.

Ms. Allen wrote a blog post entitled, “Confessions of a Red Headed Reporter.”  And confess, she did.  For example, she admitted that she’d “gone bra-less” for an entire live newscast (although, according to her, no one was the wiser).  She also admitted that she really hates the elderly.  Well, she hates reporting about them, anyway.

She seemed to have realized that she may have over-shared because she pulled the post shortly after she posted it. But that moment of enlightenment didn’t last for long. She put the post back up but changed its title to: “No Apologies: Confessions of a red headed reporter.”

She was terminated after news of her “confessional” went viral.  Shocking, I know.

So, what’s the lesson from this self-described “snarky and cynical” young journalist’s termination.  Well, for employers, I would say that the lesson is a familiar one.  For crying out loud—get a social-media policy.  Or, if you can’t manage that, for whatever reason, at least educate your employees about the risks of oversharing.  Ms. Allen maintains that what she does in her “personal space is protected by the First Amendment.” 

Maybe Ms. Allen should consider doing a little more investigating on this point before reaching this conclusion. Because no, actually, she is not protected by the First Amendment.  She worked for a private news station—not the government—and, therefore, the First Amendment does not protect her off-duty blogging.

Read more about this story at Gawker.com.

Another Auto-Deduction Case Bites the Dust

Posted by Molly DiBiancaOn August 5, 2013In: Fair Labor Standards Act (FLSA)

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Auto-deduction cases involve a potential class of employees who allege that they were not paid for time worked because their employer automatically deducted time for meal breaks.  The employees claim that, for various reasons, they were not able to take their breaks and, therefore, are owed for the time that was deducted from their hours worked.  These claims have been on the rise in the past few years but, recently, have seen rougher times as more and more courts have refused to certify the class.

A recent decision from the District of Massachusetts is another case to add to that list.  In Raposo v. Garelick Farms, LLC, a group of truck drivers sought back pay for time worked during meal breaks that were automatically deducted from their pay.  The court denied the plaintiff-employees’ motion for class certification, though, concluding that the employees had failed to meet their burden of proof.

The court’s analysis was simple but solid, looking to two issues.  First, did the employees show that everyone in the class had worked through their breaks and, if so, did they do so for the same reason?  Second, could the employees’ damages be calculated on a class-wide basis?  The court answered both questions in the negative.

As to the first issue, the court found that some employees had taken their meal breaks but others had not.  Among those who claimed to have worked through the break, the reasons for doing so varied between employees and changed frequently.  So, the court concluded, the answer to the first question—can liability be established on a class-wide basis—was “no.”

Turning to the second issue, the court found that some employees had complained to their respective supervisors and, as a result, been compensated for the missed breaks.  Whether or not they complained and to whom they complained affected whether or not they were later paid for the missed time. 

As a result, the court found that certification was not appropriate.  Another victory for employers who find themselves facing a wage-and-hour lawsuit for unpaid meal breaks.

Raposo v. Garelick Farms, LLC, No. 11-11943-NMG (D. Mass. July 11, 2013).

See also:

8th Cir- FLSA Plaintiffs Must Spell It Out (Carmody v. Kan. City Bd. of Police Comm’rs (8th Cir. Apr. 23, 2013)).

2d Cir- FLSA Does Not Cover Gap Time (Lundy v. Catholic Health Sys. (2d Cir. Mar. 1, 2013)).

Another Employer's Auto-Deduct Policy Is Upheld (Creeley v. HCR ManorCare, Inc., (N.D. Ohio Jan. 31, 2013)).

6th Cir. Affirms Dismissal of FLSA Gotcha Litigation (White v. Baptist Mem'l Health Care Corp. (6th Cir. Nov. 6, 2012)).

The Legality of Automatically Deducting Meal Breaks (Camilotes v. Resurrection Health Care Corp. (N.D. Ill. Oct. 4, 2012)).

E.D. Pa. Dismisses Nurses' Claims for Missed Meal Breaks, Part I and Part II (Lynn v. Jefferson Health Sys., Inc. (E.D. Pa. Aug. 8, 2012)).

FLSA Victory: Class Certification Denied (Pennington v. Integrity Comm’n, LLC (E.D. Mo. Oct. 11, 2012)).

Employees and the Burdens of Being Beautiful

Posted by Molly DiBiancaOn August 2, 2013In: Discrimination, Dress & Attire, Gender (Title VII), Social Media in the Workplace

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Being beautiful ain’t all it’s cracked up to be.  Or so it seems from the legal-news headlines.

First, there are the “Borgata Babes.”  The female cocktail servers at Borgata Hotel and Casino in Atlantic City, known as Borgata Babes, challenged the legality of their employer’s policy prohibiting them from gaining more than 7% of their body weight after they were hired.  The Babes lost the lawsuit, though, when a New Jersey judge granted Borgata’s motion for summary judgment. 

The cocktail servers alleged that the hotel created a culture of humiliation and harassment with its dress Borgata Babes Suit Dismissedcode but the court disagreed, finding that the policy did not constitute unlawful gender-based discrimination.  Particularly noteworthy was the court’s commentary about the potential problems associated with using the term “babe” to describe a workforce:

From the court’s perspective, the term “babe” is at best undignified and at worst degrading. . . . Regardless, there are people in our society who view “babe” as playful flattery . . . To the chagrin of those in our society hoping to leave sexual stereotypes behind, some of those people are female. And some of these people may be among the plaintiffs.

But “undignified” isn’t reserved just for cocktail waitresses.  Bob Ambrogi tweeted earlier this week about the news organization in L.A. that reminded its female employees to dress professionally, particularly when attending a court hearing or other matter at the courthouse.  Ok, well, the memo wasn’t actually addressed to, “All Female Journalists” but only women received it. 

Dress codes are tough stuff.  They make for awkward conversations and lots of grey areas.  And it is entirely appropriate for a news agency to require its reporters to dress with the appropriate level of decorum whenever they are in court.  But was it really only the women who had to be “reminded” of the policy?  Maybe it was but it sure wouldn’t have hurt to send the memo to all hands on deck. 

The subject of appropriate decorum and dress code for the legal profession brings us to our final story of the day.  As reported by Sean O’Sullivan of the News Journal, a recently admitted Delaware lawyer has raised quite a stir about his job-search strategy.  Said strategy involves an email to nearly every lawyer in the State, to which he attached a picture of himself (a “selfie”) wearing a Villanova t-shirt (my alma matter, no less), with the sleeves rolled up, displaying his well-toned arms (i.e., his “guns”). 

The stir over this unsolicited and unconventional email was soon trumped by the half-naked selfie posted on his Facebook page (which, of course, is public), with a  handwritten sign taped to the mirror in which the words “lawyer” and “escort” were used in a single (grammatically incorrect but multi-colored) sentence.  I’m quoted in the article as saying, among other things, that the whole thing is”just wrong on so many levels.” Indeed.

Really. If you don’t believe me, go see for yourself.  And, while you’re there, be sure to check out the video the hopeful job seeker posted in response to the criticism he’s been receiving.  And, yes, the video does include him flexing his guns for the camera. 

BONUS:  I know, I know. I said that was the final story for today.  But here’s a Friday-morning bonus for you.  At Mashable.com, there’s an entertaining comic titled, “The Pros and Cons of Being Tall.”  Happy Friday!

See also

Don’t Hate Me Because I’m Beautiful

I’m Too Sexy for My Job

Exotic Dancer Claims Sex Discrimination

Ex-Banker Says She Was Fired for Being Too Sexy

Employee Fired When Boss Finds Her Sex Blog

UD Employees Confidential Info Hacked

Posted by Molly DiBiancaOn July 31, 2013In: Delaware Specific, Privacy In the Workplace, Privacy Rights of Employees

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The University of Delaware announced that confidential employee data was compromised, reports the News Journal. And the breach is a sizeable one—the University estimates that the names, addresses, and social security numbers for more than 72,000 current and former employees may have been stolen. As reported by the News Journal, the university “is working to notify everyone who had their information compromised” and the school will pay for credit-monitoring services. Theft of Employee Data

An employee in the IT Department apparently discovered a possible breach on July 22. At that time, though, the university was not sure about whether a breach had occurred and, if so, the scope of the problem. But a forensic investigation confirmed that the data had been compromised.

Like many other states, Delaware has a computer-breach law that governs how an entity must respond when it suspects that a breach of personal information has occurred. “Personal information” includes, among other things, social security numbers, so the breach at UD triggers the law’s requirements. The university seems to have complied with these requirements by promptly conducting an investigation and then, when the investigation indicated that a breach had occurred, notifying the victims of the breach.

Delaware employers must be aware of their duties when they discover that employee data may have been breached. Importantly, a breach need not occur in the form of a computer hack like what appears to have happened at the University of Delaware. It also can come in the form of an employee who sends herself a copy of payroll data just before she resigns. If the payroll data contains bank-account numbers and/or social-security numbers, and it’s in the possession of a former employee, you have a duty to take immediate action under Delaware law.

See also

What to Do If Your Employees’ Confidential Data Is Stolen

Your Employees Are Stealing Your Data

Delaware Retirees’ Personal Data Accidentally Posted Online

An Employment-Law Perspective on the Anthony Weiner Story

Posted by Molly DiBiancaOn July 29, 2013In: Hiring, Newsworthy

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Anthony Weiner is in the headlines again. Last week, he told reporters that, since he left Congress in 2011, he’s sent salacious messages to numerous women, according to the NY Daily News. This latest revelation has caused quite the stir but Weiner says that he’ll stay in the race for Mayor of New York City.

The dialogue about whether Weiner should withdraw from the race is an interesting one. The conversation seems to focus on the nature of his “mistakes” and whether or not the public should care about the sexual endeavors of elected officials. Some say that private matters and personal affairs should not serve as qualifications for public office. But I think this argument mostly misses the point.

When making a hiring decision, good employers know that what matters is the candidate’s ability to perform the essential functions of the job. For example, an applicant’s race, religion, gender, disability, etc., should play no part in the decision because none of those characteristics have any relationship to the duties. If it doesn’t indicate the ability to perform the job, it shouldn’t matter.

So, how does this apply do Anthony Weiner? Well, many of his defenders argue that his sexual escapades are not indicative of his ability to perform the duties of mayor. And this may well be true.

But think of it like this. Weiner got into trouble the first time around because of certain conduct. He stepped away from the political spotlight but returned shortly thereafter, asking for forgiveness for his indiscretions. He told the voting public that he had recognized that his conduct was wrong and, at least implicitly, that he wouldn’t engage in the conduct again.

From an employment-law perspective, the nature of the conduct is irrelevant. What is relevant is that Weiner didn’t keep his promise to refrain from engaging in the conduct. It’s his apparent inability to learn from his mistakes, and the failure to keep his promise, that reflect on his suitability for the job—not the nature of the conduct itself.

Judicial Notice of LMAO

Posted by Molly DiBiancaOn July 24, 2013In: Public Sector, Purely Legal, Social Media in the Workplace

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In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law.  It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions.  But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading. 

One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.”  The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace. 

The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students.  The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.

But this time around, I noticed a footnote that I’d not caught in my first readings of the case.  Specifically, the court took judicial notice of some abbreviations that are now part of our everyday vernacular.  The court also takes judicial notice of the definition of an “emoticon" and even provides some examples!

Judicial notice, if you’re not familiar with the term, is a way for the court to accept as true a fact that is not in the record but that is not subject to dispute.  For example, a court could take judicial notice of the distance between two locations by referencing a map (or, in today’s world, MapQuest, I suppose).  Here’s the text of the footnote, in case any lawyers who are reading someday want to cite a case as support for what “LOL” and “LMAO” stand for:

The court has not altered the contents of this or any other exchange taken from the Plaintiff's MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., "LOL" can mean "laughing out loud," and "LMAO" can mean "laughing my ass off"). Furthermore, such exchanges often contain so-called "emoticons," which are symbols used to convey emotional content in written or message form (e.g., ":)" indicates "smile" or "happy," and ":(" indicates "frown" or "sad").

A more recent decision in which it appears that the judge took judicial notice of the existence of an entire Facebook page was reported on the Bow Tie Law Blog.  That decision has far greater legal significance but it’s not quite as much fun as the “LMAO footnote” discussed above. At least that’s IMHO.  ;o)

Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-313, n.13 (D. Conn. 2008).

See also

Workplace Email: The Devil Made Me Do It

Why I May Have to Eat My Emoticons

Is There a Reasonable Expectation of Privacy In Your Tweets?

Posted by Molly DiBiancaOn July 23, 2013In: Public Sector, Social Media in the Workplace

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Privacy law is a hot topic these days.  In both the public and private sectors, employees’ privacy rights are governed by whether or not the employee had a reasonable expectation of privacy.  In the private sector, this is a common-law tort for the invasion of privacy.  In the public sector, it becomes a constitutional question under the Fourth Amendment.  twitter privacy

An interesting case from the District of Nevada earlier this month demonstrates the Fourth Amendment analysis in the context of social media. In Rosario v. Clark County School District, a student brought a Fourth Amendment claim after he was disciplined because of tweets (i.e., posts to Twitter), he had made that were critical of the school and its faculty.[1] The student argued that he had a reasonable expectation of privacy in his tweets because a limited audience (his followers) viewed or read his tweets.

The court rejected this argument, explaining:

When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users' followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.[2]

This reasoning is consistent with the idea that there is no “limited-audience” expectation of privacy. In other words, once an individual publishes information to another person, absent a lawful privilege, such as the attorney-client or spousal privilege, the individual has no reasonable expectation of privacy in that information. Once it has been published to another, it is no longer protected.

The Rosario court affirmed this principle, stating:

A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still disseminating his postings and information to the public, and they are not protected by the Fourth Amendment.[3]

The court elaborated that, when a person “tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government.[4]

One of the cases cited in the Rosario decision similarly supports this holding. In United States v. Meregildo, the Southern District of New York held that the government does not violate the Fourth Amendment by gaining access to a Facebook page through a cooperating witness who is Facebook friends with the account holder. [5]

Thus, the Rosario decision is consistent with the case law. Unfortunately, many courts have not been quite this consistent when determining whether a reasonable expectation of privacy exists in social-media content in the context of discovery disputes.


[1] No. 2:13-CV-362 JCM (PAL), 2013 U.S. Dist. LEXIS 93963 (D. Nev. July 3, 2013).

[2] Id. at *15

[3] Id. at *16 (internal quotations omitted).

[4] Id. (citing United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) ("When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.").

[5] 883 F. Supp. 2d at 526.

Social-Media-Regret Syndrome

Posted by Molly DiBiancaOn July 16, 2013In: Social Media in the Workplace

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“I Regretted the Minute I Pressed Share: A Qualitative Study of Regrets on Facebook” is the title of a survey by researchers at Carnegie Mellon University that has me totally captivated.  The survey seeks to answer some very common questions about social-media use, including what posts do users most regret and, in my opinion, the real million-dollar question, why do users make regrettable posts? Here is a summary of some of the survey’s most interesting findings. oops

The 3 Most Regretted Types of Posts

I think we could all guess what these are, right?  Think about it—what types of posts make you cringe when you see them? 

First, there are posts with “sensitive content.”   These include posts about drinking and/or use of illegal drugs, posts about sex, posts about religion and politics, posts with profanity or obscenity, and posts about personal and family issues.  I think we’d all agree that these are among the most regrettable, wouldn’t we?  In other words, these are posts containing things you wouldn’t say to Grandma.

The second category is posts with “strong sentiment.”  This type of posts includes negative or offensive comments and engaging in arguments.  Again, I think this makes perfect sense.  These are things you say in the heat of the moment and wish you could take back after they’ve been said.

The third category is posts that contain “lies and secrets.”  These are posts in which the author tells a lie or reveals the lies of others.  Yeah.  I agree.  Neither are appropriate. 

Why Do We Do It?

The survey then goes on to address some of the reasons why social-media users make regrettable posts.  Apparently, many times, users didn’t have any reason to make the post—they just did.  Sometimes, though, users wanted to be perceived as “interesting or unique” (i.e., cool), or to be funny.  Other times, users were venting their frustrations or were highly emotional (and, presumably, not thinking clearly) at the time of the regrettable posts.

The survey contains lots of other interesting findings.  Unfortunately, it doesn’t include the end-all answer to how to prevent users from making regrettable posts.  Ah well, to err is human, right?

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

Posted by Molly DiBiancaOn July 15, 2013In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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Employers’ access to employees’ and applicants’ Facebook accounts is legally limited in 12 states.  The restrictions, though, vary widely.  Most of these laws were, at least according to their proponents, intended to prohibit employers from requesting or requiring an employee’s or applicant’s password or account information for the purpose of gaining access to the account as a sort of back-door background check.  Unfortunately, many of the laws go (or potentially go) far beyond that simple limitation. 

I’ve been opposed to these bills since they first hit the legislative radar and continue to think they are unnecessary.  For one, they attempt to fix a problem that does not exist—employers are not asking for applicants’ Facebook passwords.  The handful of reported incidents across the country should not prompt a flurry of legislative initiatives.

And, second, the law already prohibits such conduct.  As I’ve previously written, I believe that, at least arguably, the Stored Communications Act (SCA), which is a part of the federal wiretap statute, would prohibit employers from gaining access to an account in this way. 

Now there is a case that takes that idea one step further. In Rodriguez v. Widener University, the Eastern District of Pennsylvania declined to dismiss a claim brought under the SCA based on allegedly unlawful access to the plaintiff’s Facebook account.

Specifically, the student-employee alleged that his employer obtained access to his Facebook account and suspended him because he was perceived to be a threat to the community due to posts displaying images of weapons.  The employer moved to dismiss the Complaint and was successful on all but one count—the count brought under the SCA alleging unlawful access to his Facebook posts.  The employer argued that the posts “were accessible to the general public and/or forwarded to [the defendants] by concerned students who had equal and permitted access to Plaintiff’s Facebook postings.”

Unfortunately for the employer, on a motion to dismiss, facts not alleged in the Complaint (i.e., the Facebook posts were public and, therefore, not accessed unlawfully), cannot be considered by the court.  Instead, only the allegations in the Complaint itself can be considered.  And, here, the plaintiff’s complaint did not allege that they were publicly available.  Hence, because there was no factual basis in the complaint to support the public or non-public nature of the plaintiff’s Facebook page, the court declined to dismiss that count.

So, what does this mean?  Most important, and most unfortunately for employers, it means that there are likely more suits like this to come.  When an employer receives a complaint from another employee about a potential threat or similar concern about potential workplace violence by another employee, the employer must investigate it.  The same rule applies for complaints about inappropriate conduct that could be or give rise to unlawful harassment or discrimination.  The employer has a legal duty to investigate.

And if the complaint is brought to the attention of an employer via a forwarded or printed copy of a Facebook post, the employer cannot (nor should it) ignore it.  So long as the employer does not access the post or page without authorization, the employer has not violated the law.  If a third party, such as a coworker, brings the Facebook post to the attention of the employer, there’s been no unlawful conduct by the employer.  Unfortunately, that does not mean the employer won’t get sued, which appears to be what happened in this case.

So what’s an employer to do?  It’s a very difficult line to walk. The safest thing, at this stage in the still-developing legal landscape, seems to be one of two things. First, to not show the employee the copy of the posts at all.  Instead, simply state that you’ve received credible information regarding XYZ conduct and that you are investigating that complaint.  Second, you could show the employee the posts during the course of your investigation and make clear that the posts were provided to you by a credible source but that you did not access the Facebook page. 

Either way, the employer is between a rock and a hard place.  On one hand, the employer has a duty to investigate. On the other, the employee is not obligated to allege in his complaint whether or not the posts were publicly available, thereby avoiding dismissal at the early stage of the case.

Rodriguez v. Widener Univ., No. 13-1336 (E.D. Pa. June 17, 2013).

Court Orders Gender-Based Sentence to Female Defendant

Posted by Molly DiBiancaOn July 12, 2013In: Discrimination, Gender (Title VII)

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Today’s post is more of a rant than anything close to a legal analysis.  Yesterday, Mark Hansen of the ABA Journal reported about a sentence issued by a judge in Halifax County, N.C. 

The defendant, a 21-year-old female, Tonie Marie King, pleaded guilty to being drunk and disorderly and resisting arrest.  Police were called to the scene in response to a call alleging that King hold stolen beer from a convenience store.  When police arrived, King put up a fight and kicked the arresting officer. image

Judge Brenda Branch sentenced King to 45 days in jail but suspended the sentence in lieu of a one-year supervised probation, during which she may not possess or drink alcohol and-now here’s the kicker—she must write a two-page essay on “How a Lady Should Behave In Public.”

Oh, brother

Let . . . me . . . think.  A “lady,” to me, invokes images of Victorian times, when “ladies” could be seen carrying a parasol and wearing delicate gloves.  The word also makes me think of the Disney movie, "Lady and the Tramp.”  So, basically, an adorable dog with big eyes sharing a piece of spaghetti with her beau.  Here’s what Bryan Garner has to say about it in his book, Garner’s Modern Legal Usage:

This word has become increasingly problematic.  Though hardly anyone would object to it in the phrase ladies and gentlemen, or on a restroom sign, most other uses of the term might invite disapproval . . .

And why is it that the word has been “so beaten down” in modern usage, to quote Edward N. Teall from his 1940 article, Putting Words to Work?  For the same reason that we counsel employers to not ask job applicants about their familial or marital status—because it doesn’t make a hoot of a difference.  Instead, we counsel employers to stick to job-related questions.  If the question does not provide insight into whether or not the applicant can perform the necessary duties, the question should not be asked.

The same maxim applies to the court-ordered essay.  The essay that the court should have ordered is “How a Citizen Should Behave In Public” or “Why It’s A Bad Idea to Be Drunk In Public” or “10 Reasons to Not Assault a Police Officer.”

But “How a Lady Should Behave In Public”—what response is that likely to invoke?  Well, if we look to Old Massachusetts: A Practical Primer for Daily Living, here are some possibilities:

Keep Your Arms from Going Astray.  Preferably with a fan but, when you cannot have one in your hands, it is better to keep the arms pressed lightly against the sides in walking or sitting.

Limit Your Observations.  A woman who is boisterous and loud-talking is almost unendurable.  A lady is, by nature, intended to be the gentler and restraining element.

Be Not Excessively Frank.  Do not take pride in offensively expressing yourself on every occasion under the impression that you will be admired for your frankness. Speaking one’s mind is an extravagance, which has ruined many a person.

Excerpts published at ConcordMa.com.   Folks, can we just take a moment to reflect on that last characteristic of a lady’s “proper demeanor”—“Speaking one’s mind is an extravagance, which has ruined many a person.”

Consider me ruined in that case because I’m about to speak my mind.  The judge’s order, however well intended it may have been, does more harm than good and, quite unfortunately, reflects a bias on the bench.  The judge—a woman, mind you—felt that it was perfectly appropriate to use the defendant’s gender in determining the sentence.  As readers well know, similar conduct by an employer would get the employer sent directly to the EEOC—do not pass Go, do not collect $200.

When imposing a “sentence” in the workplace (i.e., an adverse employment action), assume that gender is irrelevant because it almost always is. And then leave gender out of it.

And, just one more thing for this Friday-morning post, it is my wholly subjective opinion based purely on my own anecdotal experience but this kind of gender-based order would only come from a woman.  We really can be our own worst enemies.

See also:

No, I am not from the Midwest. Sex Discrimination Lives On.

A Turning Point for Women in the Legal Profession? Almost.

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

The Pantsuit Pandemic Part II

The Immediate Impact of the DOMA Ruling for Delaware Employers

Posted by Lauren Moak RussellOn July 8, 2013In: Benefits, Cases of Note, Discrimination, Sexual Orientation, U.S. Supreme Court Decisions

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Delaware began issuing marriage licenses to gay couples on July 1, 2013, less than a week after the U.S. Supreme Court's decision striking down the Defense of Marriage Act (DOMA). Delaware will no longer perform civil unions pursuant to the Civil Union Equality Act, which was passed into law in 2010. Couples who entered into a civil union prior to July 1 may convert their civil union into a legally recognized marriage or wait until July 1, 2014, when all remaining civil unions will be automatically converted.

The Court's DOMA ruling is expected to affect an estimated 1,138 federal benefits, rights, and privileges. For Delaware employers, the impact is potentially significant. Delaware employers must now extend all federal benefits to gay married couples that were previously made available to straight married couples. The impact also is immediate. Unlike with new legislation, there will be no delay between the Court's ruling and an employer's obligation to extend benefits.

Although the Supreme Court's decision will impact who is eligible for benefits, the procedures remain unchanged. For example, the process for requesting and reviewing FMLA leave, COBRA coverage, and other federally mandated benefits of employment will not change.

One step employers should consider is possible adjustments to tax and health-insurance forms. Spouses that could not previously "claim" one another on federal tax forms may need to submit new IRS Form W-4s. In addition, if your company offers ERISA-covered health-insurance plans and did not previously extend benefits to gay couples, those plans will now be open to the enrollment of gay spouses. This means that, if your company offers health insurance coverage to the straight spouses of its employees, the same benefits must now be extended to gay spouses. In addition, gay spouses will now be the primary beneficiary on all 401(k) plans.

In the end, Delaware employers are likely in a better position to adapt to the Supreme Court's decision, since benefits have been extended under State law since January 1, 2012. Employers should keep in mind that the same benefits must be extended and the same processes will still apply to same-sex married couples. In the event that you think it may be necessary to deviate from this rule of thumb for some unusual circumstances, consider consulting legal counsel before doing so.