Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech.  Today’s post also is about threats made via Facebook but in the context of the workplace.  The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio. social media letterpress_3

In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat.  The comment was in reference to shooting parolees.  The employee claimed that the comment was a joke.  The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance.

A few months later, the employer received an “anonymous” complaint that the employee was using her state-issued computer for non-work purposes.  It turned out that the complaint actually was made by the new partner of the employee’s ex-girlfriend.  The new partner, of course, was a co-worker. There was an investigation and the employee was issued a written reprimand.

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States. text message speech bubble or twitter keyboard_3

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine.  Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches.

ABA Journal Top Blawg 100

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

I share the honor this year with seven other employment-law bloggers, each of who does a tremendous job reporting on the various aspects our shared practice area. Many of you already read the blogs of my co-winners but, if you don’t, you should.  I continue to be humbled by the company I have been permitted to keep.

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three.male female sign_3

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer.

Second, don’t decide anything in advance. This is important because, if you’ve already made your mind up before you ask the question, you’ve already failed as an investigator. In order to get the information that you need, you must truly listen. And the interviewee will know if you’re not listening. So keep an open mind and don’t jump to conclusions.

Employers, do you know what apps your employees are using?  That’s the question posed by a recent article in the WSJ.  (See Companies Don’t Know What Apps Their Employees Are Using).  My guess is that the answer to this important question is, “No.”  Here are my top tips for how not to be the employer discussed in the WSJ article. cloud storage file cabinet drawer and folders_3

First, have a policy about employees’ use of cloud-based apps to save work-related documents.  Consider prohibiting employees from saving work documents to cloud-based storage accounts such as Dropbox, SkyDrive, and Box.net.  Also consider prohibiting employees from backing up the contents of their work laptops to cloud-based back-up accounts, such as Mozy and Carbonite.

Second, communicate your policy to all affected employees.  If employees don’t know about the prohibitions, your policy is unlikely to have the desired deterrent factor.  This means that your policy needs to be written in plain English and that it should be publicized to employees in a way that will actually be heard.

Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer-particularly when the new employer is a competitor.   When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue. privacy policy with green folder_thumb

Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network.  But what if the employee turns over his personal emails or text messages without realizing it?  The answer is, as always, “it depends.”  A recent case from a federal court in California addresses the issue in a limited context.

After the employee resigned, the employer sued him for misappropriating trade secrets.  He filed counterclaims, accusing the employer of violating the federal Wiretap Act, the Stored Communications Act (SCA), and state privacy laws.  The employee alleged that the employer had reviewed his text personal text messages on the iPhone issued to him by the former employer after he’d returned it but before he unlinked his Apple account from the phone.

Employees telling secrets online was the subject of yesterday’s post, Keeping Secrets on Social Media.  Today’s post–a continuation of the theme from yesterday–is about “auto-expire” apps.

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An “auto-expire” app is an app that enables users to set an automatic expiration date and time for social-media or other online content.  There are lots of reasons one would use an auto-expire app but the three that come immediately to mind are regret, efficiency, and secrecy.

Social-media regret is nothing new.  Just last summer, I wrote a post about social-media regret syndrome.  Auto-expire apps like Xpire, for example, allow users to set expiring posts for Facebook, Twitter, and Tumbler.

The title of this post is a bit laughable, isn’t it?  I mean, really, it’s almost an oxymoron.  Keeping secrets on social media?  What’s the point?  The very existence of social media is dependent upon sharing-not secret-keeping.  But the two are intersecting more and more.  Which is why I am writing a short series of posts about the topic.  Beginning today with a post about “anonymous” apps.telling secrets_thumb

Back in February, fellow employment lawyers, Adam S. Forman and Dan Schwartz, and I were interviewed for an article in Law360, titled, “What Employers Need to Know About the New Social Media.”  In that article, I discussed what I think is the wave of the future in social media for employers-apps focused on secrecy.

For example, one app, Secret, allows users to share anonymous messages with anyon3e in their contacts who also uses the app.  Employers in the tech industry, where these apps are particularly popular, are struggling with how to deal with (and, preferably, prevent), the loss of confidential company information.

Humility is a virtue.  And, for most of us, it doesn’t come easily.  Particularly for those of us who want to be good at our jobs and to please to whom we report, owning up to a mistake at work can be a difficult task.  Management professor Robert Sutton offers advice about how to deliver a truly effective apology in his book, Good Boss, Bad Boss.  A recent article about Sutton’s advice summarizes it in three steps. I'm sorry_thumb

1. Own It

When you make a mistake at work, own your actions.  And own them completely.  Don’t combine your apology with an excuse.  Omit the word “but” from every apology.  For example:

Traveling for work has its pros and cons.  I spent the last two weeks in sunny Santa Monica, California.  I was there to take multiple depositions in an expedited proceeding, which meant that I escaped my hotel room / conference room for a combined total of approximately 4 hours over a 14-day period.  In fact, I didn’t leave my hotel room or the conference room from which we were working at all until Day 4, when I took the extreme liberty of walking to the beach and back.  (Picture below).  I was out of the room for about 10 minutes-I didn’t even put my toes in the sand for fear that I’d never return to the room.

Two weeks felt like a long time to be away from home.  But it also felt like a long time to be away from my regular work routine.  In particular, my email Inbox expanded beyond my normal comfort level, as I prioritized the case that required my attention the most.Sunny Santa Monica

It wasn’t until late in the evening that I was able to make meager headway in responding to emails I’d received for other matters.  But, had it not been for those late-night (and, sometimes, very early morning) email binges, I would never have been able to get caught up upon my return.  I also would have had some very unhappy clients, who require their lawyer’s prompt attention to deal with emergency issues as they arise.

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