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

Even the best employees will not be able to satisfy every customer. The reality is that there are some people who just will not be happy no matter what the circumstance. Employees are expected to take it on the chin when a customer overreacts or complains without justification.Complaint and Scales of Justice_3

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

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

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

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

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_3

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.

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.Fees letterpress_3

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.

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_thumb

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

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 lens_thumb

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.

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_thumb

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.

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_thumb

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.

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.

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.

Contact Information