Discovery of social-media evidence can be a valuable tool, particularly in employment and personal-injury litigation.  Employers’ lawyers should be aware not only of the potentially relevant evidence in a plaintiff-employee’s Facebook account.  They also should be very aware of the ethical implications relating to their own client’s social-media activities.  One such implication is the potential spoliation of evidence.  A new decision from the U.S. District Court of New Jersey offers an important reminder of this critical duty.

The plaintiff, a baggage handler, alleged that he was injured when a set of feuler stairs crashed into him. He claimed that, because of his injuries, he was permanently disabled, was unable to work, and was limited in his physical and social activities.

During litigation, the defendants sought discovery regarding the plaintiff’s damages and social activities. Plaintiff signed authorization forms form eBay, PayPal, and some social-networking sites but not for his Facebook account.

Employee resigns. But before her last day of work, Employee copies thousands of emails and documents from Employer’s computer.  Off goes Employee into the sunset.

How often is this scenario?  I bet most employers think this never happens in their workplace. I’d be willing to bet that it happens in almost every workplace.  It happens with such regularity, yet most employers are absolutely stunned to discover that it’s happened to them.3d thief cracks safe_thumb

If you think it doesn’t happen pretty much all of the time, check out this post at the uber-popular website, Lifehacker.com, titled, How Can I Save All My Work Emails for a Personal Backup?  A reader submitted the following question:

Employers are wary of litigating against the EEOC. And for good reason. Many employers who have faced the EEOC in the courtroom have complained that the agency uses guerilla litigation tactics. One commonly heard complaint occurs in the context of class actions, when the EEOC refuses to disclose the identity of the claimants on behalf of whom the EEOC seeks relief.

Recently, though, some courts have heard these complaints and agreed with the employer. Different courts have reacted, differently, though. Only a few have gone so far as dismissing the EEOC’s case.

One of the first courts to take this course was the U.S. District Court in Iowa. In EEOC v. CRST Van Expedited, Inc., the EEOC filed suit on behalf of 270 female truck drivers, claiming that they were subject to a hostile work environment. The district court dismissed the claims of all but two employees. The company settled the remaining claim for $50,000.

In a reminder to Delaware employers that what you say can come back to bite you, the Delaware Supreme Court reinstated a Superior Court jury verdict in favor of a plaintiff, after the trial court had determined that his claim failed as a matter of law. The plaintiff, Donald Harmon, had been the Presiding Judge of the Delaware Harness Racing Commission, and was fired as a result of an allegation that he had changed a judging sheet for a race, as a favor to the horse’s owner. Harmon was charged with crimes and was suspended without pay pending the outcome of the criminal case.

He asked another employee to find out from the Racing Commission whether he would be reinstated if he was acquitted on the criminal charges. The employee testified that he put that question to the Commissioners and they “looked at each other and then said [Harmon] would be reinstated.” The Commission later decided not to reinstate Harmon and he sued, obtaining an award of $102,273 after a 5 day jury trial. The trial court overturned the verdict and Harmon appealed to the Delaware Supreme Court.

In essence, promissory estoppel in the employment context means that the employer has made a representation to an employee that the employee reasonably relied on to his or her detriment. While that theory can apply to private employers, the general rule in the public sector, as asserted by the Racing Commission in this case, is that “the state is not estopped in the exercise of its governmental functions by the acts of its officers.”

EEOC v. Original Honeybaked Ham Co. of Georgia, Inc., is the subject of today’s post. I first wrote about this case in November, when the Colorado District Court granted a motion to compel the EEOC to turn over social-media content of claimant-employees. The court acknowledged that discovery of social-media content presents “thorny and novel issues.” But, finding that the postings were relevant to the issues in the case, the court ordered that it be turned over.eeoc_3

In an unusual twist, the court required the EEOC to turn over the log-in information and passwords of the claimants to a special master, who would make an initial determination of discoverability. I concluded that the decision was a well-reasoned attempt to balance the individual claimants’ privacy interests with the defendant-employer’s right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process for the collection, review, and production of the information from the employees’ social-media accounts.

Fast-forward three months.

Auto-deduct policies and meal breaks continue to make FLSA headlines. Last week, the Second Circuit tackled these policies, as well as gap-time claims, head on and came down on the side of the employer.

The case involved a collective action brought by employees of various health-care facilities. The basic allegation was that the plaintiff-employees had not been paid for time worked during meal breaks, before and after shifts, and time spent at training. The plaintiffs brought claims under the federal FLSA and under the New York state wage law. The district court dismissed the complaint several times before the case made it to the 2d Circuit.

The plaintiffs brought two types of claims under the FLSA: (1) overtime; and (2) gap time. Both were dismissed by the trial court. The Second Circuit affirmed the dismissal.

Teachers and Facebook can be a dangerous combination. I’ve written numerous posts about the impact of social media on today’s public schools. But the woes of social networking aren’t limited to educators in grades K-12. Just ask administrators at the University of Pennsylvania.

The prestigious university is dealing with an incident of bad form by an admissions officer. According to Inside Higher Ed, the Nadirah Farah Foley, posted excerpts from application essays on her Facebook page, accompanied by her own snarky commentary.apple, red_3

I think many of us would agree that there is a tremendous amount of comedic potential with college-application essays . . . for comedians. But probably not for the admissions officers charged with deciding the applicants’ future. Although Foley’s Facebook friends didn’t seem to mind. In fact, they thought her commentary was so entertaining, they encouraged her to post more snarkiness.

The United States Supreme Court will hear argument next month in United States v. Windsor, which addresses the constitutionality of the federal Defense of Marriage Act (DOMA).  Nearly 300 private-sector employers joined forces in opposition to the law, filing a joint amici brief.  Among the employers who oppose the law are Citigroup, Google, Facebook, and Starbucks, reports the L.A. Times.goose_thumb

The employers voice a number of objections to the law, all arising from the conflict between state and federal law.  Twelve states and the District of Columbia now recognize same-sex marriages.  But federal law, pursuant to DOMA, prohibits the recognition of same-sex unions.

This contradiction puts employers-particularly those operating in multiple states-in a difficult position as they attempt to reconcile what they must do according to state law, what they must not do according to federal law, and, for many employers, what they want to do according to their own policies of anti-discrimination.

In my post, Manager’s Drunk Facebook Post Leads to Retaliation Claim, I wrote about a wage-and-hour lawsuit brought by bartenders at the famous Coyote Ugly Saloons.  In that post, my focus was on retaliation claims that the employees had added by way of an amended complaint.  I promised, though, to follow up with a post dedicated to the wage claim.  And here it is. 

The case began its life as an FLSA collective action based on an allegedly illegal tip pool.  The class included current and former employees who worked as bartenders, barbacks, and waitresses.  Bartenders were required to put all of the tips they earned during a shift into a pool.  The pool was then distributed among bartenders, barbacks, and security guards who worked that shift.  An employee’s share of the pool depended on the job performed but was always percentage based.  Bartenders never retained more than 85% of the total pool. 

Tip pooling is a common practice and not as draconian as it may sound when it’s done properly.  But when it’s done improperly, it can be a major source of hostility.  In this case, the employees claimed that the tip pool was unlawful because security guards, who were not “tipped employees,” participated in it. 

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