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Facebook Threats Constitute Legitimate Grounds for Termination

Posted by Molly DiBiancaOn December 4, 2014In: Policies, Public Sector, Social Media in the Workplace

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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

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.

A few months later, the co-worker (partner of employee’s ex), files an incident report alleging that the employee had sent a threatening text message to the co-worker and the ex.  A few weeks later, the employee filed an incident report against the co-worker, alleging that the co-worker had used a state computer for, you guessed it, non-work-related purposes. An investigation was begun.

Days later, the co-worker notified the employer that the ex had filed for an order of protection against the employee.  In the motion, the ex claimed that, two years earlier, the employee had held a gun to her head.  The employee denied that any such incident had occurred.

In any event, the employer sent the employee off for a second IME, this time to discover whether she had a “propensity for violence.”  Now, I’m no psychologist, but I’m pretty sure that there’s no widely accepted methodology for determining whether a person has a “propensity for violence.”  Apparently, the psychologist who conducted the IME had similar doubts and gave an inconclusive report, failing to address whether the employee had any such “propensity.”  So the employer sent her off for a third IME, this time specifically asking the examiner to make such a conclusion.

The examiner declined to make such a finding, explaining that there is (as I believe I may have mentioned) no reliable way to make such a determination.  Nevertheless, a few months later, the employee posted a threatening message on Yahoo! Messenger to the ex.  She denied sending the message but resisted the employer’s attempts to determine if the account had been hacked.  As a result, she was terminated for the threat and for failing to cooperate in an investigation.

The employee sued under the disabilities laws, claiming she’d really been terminated because the employer perceived her to be disabled.  The employee lost, appealed, and lost again.

So, what are the lessons to be learned here?  Oh, my, there are so many.  Too many to discuss in full so I’ll give you the redux in bullet points:

1.  Love triangles in the workplace usually end badly. 

2.  Threats of violence made via Facebook can serve as grounds for discipline.

3.  Failure to cooperate in an investigation constitutes grounds for discipline.

Ames v. Ohio Dep’t of Rehab. & Correction, 2014-Ohio-4774 (Oct. 28, 2014).

Issue of Threats via Facebook Heads to the Supreme Court

Posted by Molly DiBiancaOn December 1, 2014In: Public Sector, Social Media in the Workplace, U.S. Supreme Court Decisions

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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 StatesFacebook threat as free speech

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?

In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others).  At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics.  The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.”  So now the Supreme Court will decide what the “true test” for “true threats” should be. 

The legal issue may appear easier than it is.  The facts of the case may make the speech and speaker less sympathetic.  For example, his Facebook comments included the following about his wife, after she left with their two children:

If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.

He later posted, "I'm not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”  And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.”  He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.

Three Tips for Protecting Your Electronically Stored Confidential Information

Posted by Molly DiBiancaOn November 3, 2014In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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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.  employee cloud storage

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.

Third, enforce the policy.  Don’t make exceptions.  If an employee violates the policy, the employee should be disciplined accordingly.  Even if the employee is your favorite employee.  And even if the employee complains a lot about the policy—and claims that he or she needs the online storage and/or back-up accounts.  The answer is “no.”  And that answer must be consistent, regardless of how loudly an employee complains.

As a bonus point, I’ll note that employers should consider having all employees execute a confidentiality agreement.  The agreement can be very brief—a paragraph long does the trick, most of the time.  But the key is to have all employees execute the document.  And, ideally, have the employees reaffirm their adherence to the confidentiality agreement on a yearly basis.

A lot of additional work?   Yes.  But, if you have an employee who defects to a competitor and takes with him several gigabytes worth of your confidential data, the extra “work” will be worthwhile.  You’ll be glad you have taken these steps—and don’t hesitate to thank me for the great suggestions. 

A Perk of BYOD Policies at Work

Posted by Molly DiBiancaOn October 20, 2014In: Non-Compete Agreements, Policies, Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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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

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.

All of the employee’s counter-claims were dismissed by the court.  The court found that the Wiretap Act claim failed because there was no allegation that the employer had intentionally intercepted any messages.  The SCA claims failed because there was no allegation that the employer had accessed any messages.  And, perhaps most obviously, the privacy claims failed because the employee could not have had a reasonable expectation of privacy.

The court specifically found that the employee had “failed to comport himself in a manner consistent with objectively reasonable expectation of privacy” by failing to unlink his old phone from his Apple account, which is what caused the transmission of his text messages to his former employer.

Sunbelt Rentals, Inc. v. Victor, No. C 13-4240-SBA (N.D. Cal. Aug. 28, 2014).

See also

Too Creepy to Win: Employer Access to Employee Emails

Traveling for Work and Late-Night Emails

Lawful Employer Investigations of Facebook . . . Sort Of

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

Keeping Secrets on Social Media: Part II

Posted by Molly DiBiancaOn September 30, 2014In: Social Media in the Workplace

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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. 

telling secrets

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. 

Efficiency also is a reason to consider these apps. You don't need to keep (or have others keep) the series of text messages exchanged about where to meet for lunch. 

But secrecy, in my opinion, is the most prominent reason for the increased interest in these auto-expire apps.  In the employment context, there may be security reasons for having highly confidential discussions automatically deleted forever.  Apps like Wickr (branded as "a top-secret messenger), are targeted to businesses for exactly that reason.  Wickr advertises that messages sent through the app contain no geolocation data and are not tracked or monitored--what's yours is yours and cannot be accessed by the host site.

Be careful, though, about what you send through these apps--people are often surprised by the utility of having access to evidence in the form of contemporaneous posts and conversations.  But, for certain exchanges, you can imagine the equally powerful utility of having an untraceable and permanently deleted line of communications.

Keeping Secrets on Social Media

Posted by Molly DiBiancaOn September 29, 2014In: Social Media in the Workplace

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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

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. 

For example, an employee hears through the grapevine that the Vice-President of R & D has taken a job with a competing firm.  Employee posts that hot tidbit on Secret, where all of his work colleagues (who also have the app, of course), will see it.  The firm can be seriously disadvantaged by uncontrolled leaks of information.  And, when the app is designed specifically for that very purpose, it is hard to address with any meaningful result. 

As a side note, educators are struggling with a related problem.  Students bullying other students via these anonymous apps is a serious problem that many school districts are trying to manage.

So what should employers be doing?  Well, to start, they should be reading this blog post.  If they do, at least they’ll know about the existence of these “anonymous” social-media apps and about the potential issues the employer may be facing already because of them.  Next, employers should consider investigating for themselves. Have an individual from HR subscribe to the service and see what, if anything, is posted about the company.  Although it may hurt to find out, it’s better that you know so you can make a rational decision about how, if at all, to address it.

In the next post in this series, I’ll discuss “auto-expire” apps that enable users to set an expiration date on their posts and messages.  Stay tuned.

How NOT to Produce Facebook Evidence

Posted by Molly DiBiancaOn July 23, 2014In: Purely Legal, Social Media in the Workplace

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Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is. ESI Discovery

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no. 

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI).  In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.”  (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :

printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.

The Court granted the motion to compel. 

Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.”  Upon closer review of the opinion, though, it appears that all parties were represented.  Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?). 

What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format).  Preservation is the first step.  Maybe we can work on our production skills after that.  I’ll keep my fingers crossed.

Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).

Waiver of Attorney-Client Privilege Via Facebook

Posted by Molly DiBiancaOn July 10, 2014In: Purely Legal, Social Media in the Workplace

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Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement.  Waiver of Privilege via Facebook

There’s another reason to be concerned about what employees say on social-networking sites—waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer. 

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost. 

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook. 

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion. 

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret—it doesn’t belong on Facebook. 

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

Facebook Post Means No Unemployment Benefits for Nurse

Posted by Molly DiBiancaOn June 22, 2014In: Social Media in the Workplace

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Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:

Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.

One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.

Talbot sought unemployment insurance benefits but his claim was denied b/c he was discharged for violating the company’s policy. Talbot appealed and the Appeals Examiner reversed the initial denial decision, finding that he had not been terminated for employment-related misconduct. The employer appealed and the decision was reversed and Talbot was denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.

The high court upheld the denial of benefits, finding that the employer had satisfied each of the three required elements. Most import was the court’s finding that the employer had an expectation that its nurses would not make threatening statements about a patient on Facebook and that Talbot failed to meet the employer’s expectations. Talbot argued that his post was not a threat—it was merely a “rhetorical statement meant to initiate discussion.”

But this argument misses the point. The employer did not claim that Talbot’s post was an actual threat—only that it was “threatening.” There is a difference, it seems to me. “Threatening” language or comments can cause harm, regardless of intent. Personally, if I had a family member who was a patient at Desert View Care Center, I would have had significant reservations about the quality of care they would receive from Talbot. I wouldn’t necessarily think he had made a “threat”—only that his attitude was less than ideal for a caregiver. And the nursing professor who reported the post, apparently, thought so, too.

This is consistent with the First Amendment case law in the context of social-media and Free Speech. When an employer is faced with potential harms arising from an employee’s social-media post, the employer need not wait until those harms actually occur before taking action. Here, Desert Care was not required to wait until Talbot actually neglected a patient who, in Talbot’s opinion, complained too much. The employer can (and should) take action to ensure that the harms do not occur in the first instance.

Was this a tough break for Talbot? Maybe. But would it have been a really tough break for Desert Care if word got around that its nurses gave less attention to patients they didn’t like? Most definitely. And, especially in the health-care context, it’s not merely the employer’s prerogative to prevent bad outcomes but its duty.

For a different take on this case, see Eric Goldman’s Technology & Marketing Law Blog

Talbot v. Desert View Care Ctr., No. 41208 (Idaho, June 20, 2014).

Jurors Behaving Badly

Posted by Molly DiBiancaOn June 16, 2014In: Purely Legal, Social Media in the Workplace

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Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area. Jurors Behaving Badly

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

The court heard oral argument about the alleged misconduct but did not conduct an investigation.  The Supreme Court reversed and remanded, finding that the Delaware Constitution mandates an investigation following allegations of juror misconduct.  Such an investigation is mandatory even where the trial court gave clear instructions regarding the use of the Internet as a source of extrinsic information.

Baird v. Owczark, No. 504 (Del. May 28, 2014).

See also

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

3d Cir. "Likes" Jury Instructions on Social Media

Calling Your Students "Hoes" Can (And Should) Get You Fired

Posted by Molly DiBiancaOn June 5, 2014In: Off-Duty Conduct, Public Sector, Social Media in the Workplace

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During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.

The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year.  In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party.  Ms. Kimble and a parent went as "chaperones" but Ms. Kimble did not seek or obtain approval for the trip.

During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders.  Although Ms. Kimble was clothed, most of the girls were topless.  All of the girls were minors. 

Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted.  To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:

my girls acting like their self[sic] . . . hoes.

The photos were discovered and reported to the school and Ms. Kimble was suspended without pay.  After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment. 

Ms. Kimble challenged the termination.  An administrative law judge overturned the board's decision to terminate her from her position as cook.  The board appealed and the circuit court affirmed the finding of the ALJ.  The board appealed to the state's highest court, which reversed, siding with the board and finding the termination lawful. 

As the grounds for its opinion, the state's Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip.  That was the easy part.

The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:

sitting in a hot tub surrounded, literally, by several topless female students.

The court also found that calling your minor students "hoes" also is relevant to the immorality question. 

Finally, the court rejected Ms. Kimble's argument that she could not be disciplined for conduct that occurred off duty.  This argument is a favorite among plaintiff-employees everywhere but always a loser.  The conduct was within the scope of Ms. Kimble's employment--she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them "hoes" on her MySpace page. 

The fact that she was not on duty at the time of these acts does not serve as a defense.  This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination.  When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful.  The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.

On the most basic level, it's difficult to imagine that the parents of the female students would appreciate their daughters being called "hoes" by anyone but especially not by their cheerleading coach. 

Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014).

Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!

Posted by Molly DiBiancaOn May 20, 2014In: Public Sector, Social Media in the Workplace

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The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office.  how_to_permanently_delete_or_deactivate_facebook_account

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook. 

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment—i.e., a free-speech claim.

The court declined to dismiss the free-speech claim for several reasons.  First, it held that the plaintiff was speaking as a private citizen—not as an employee—when she made the post.  I tend not to agree but, well, we can’t all be right all of the time. 

Second, the court held that she was speaking on a matter of public concern.  This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech.  Yikes. 

Why, you ask, did no one produce the post?  According to the opinion, because the plaintiff deleted it.  Hmmm.  That doesn’t seem like exactly the right outcome, does it?  Because the plaintiff destroyed evidence, she gets the benefit of the doubt?

Maybe not.  But it does teach an important lesson to employers.  If you are going to discipline or terminate an employee due to something the employee posted on Facebook—get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.

Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).

Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter

Posted by Molly DiBiancaOn April 20, 2014In: Social Media in the Workplace

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To establish a claim of defamation, the plaintiff must establish that: (1) the defendants made a statement concerning the plaintiff to a third party; (2) that the statement could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either cause the plaintiff economic loss or is actionable without proof of economic loss.  Defamation via Twitter

There are several possible defenses to a claim of defamation.  Two of the most common are that: (1) the allegedly defamatory statement is true; and (2) that the statement was one of opinion, as opposed to fact.  Thus, if you make a negative statement about someone that is true, there can be no liability for defamation.  Similarly, if you merely comment about your opinion, as opposed to purporting to make a factual statement, there has been no defamation.

Defamation by Twitter is no different.  Comments that are merely expressions of opinion, whether made in person, in the local newspaper’s letter to the editor, or on Twitter, cannot form the basis for a claim of defamation.  A federal court in Massachusetts recently explained this idea in Feld v. Conway.

In Feld, the plaintiff brought a claim for defamation based on the defendant’s tweet that the plaintiff was “f—ing crazy.”  The comment was made in response to a thoroughbred horse that disappeared after it was supposed to have been shipped to a horse farm in New Jersey.  The event was the subject of “great debate” in the thoroughbred race horse community, which included the defendant, Crystal Conway.  The tweet at issue was apparently intended to imply that the plaintiff, Feld, was involved somehow with the horse’s disappearance.

The defendant moved to dismiss the complaint, arguing that the comment was merely opinion and, therefore, could not constitute the basis of a defamation claim.  The court agreed.  Finding that, when viewed in the context of the online discussion regarding the horse’s disappearance, the comment that the plaintiff was “f—ing crazy” “cannot reasonably be understood to state actual facts about plaintiff’s mental state.”  Instead, it was “obviously intended as criticism—that is, as opinion—not as a statement of fact.”  As a result, the defamation claim was dismissed.

So, what’s the lesson from this case?  Primarily, it’s this: don’t go suing over cheap insults.  Comments like the one at issue in the above suit are not comments to be taken seriously.  Does that mean that they are not annoying, insulting, and/or distracting?  No, of course not.  Online attacks, like “real-life” attacks, are not pleasant.  But that does not mean that there is a basis to run out and file suit. 

It is a different world today, when individuals and entities alike must deal with negative online commentary.  But hurt feelings do not a lawsuit make.

Feld v. Conway, No. 13-13122-FDS (D. Mass. Apr. 14, 2014).  [H/T to Jay Yurkiw, of Technology Law Source at Porter Wright].

Is It Time to Reconsider Your Personal Email Policy?

Posted by Molly DiBiancaOn April 14, 2014In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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The Heartbleed Internet-security flaw has compromised the security of an unknown number of web servers.  This is just one story in a string of recent headlines involving the vulnerability of the Internet sites.  But consumers aren’t the only ones affected.  The companies whose websites have been attacked are employers, after all. computer help button

Although data security has become increasingly impossible to ensure, it has also become increasingly critical to employers’ viability.  So employers are looking for ways to mitigate the exponentially increasing risks associated with the Internet.

One option being considered by some employers is blocking employees from their personal, web-based email accounts from the company’s servers.  Companies can install powerful (albeit not impenetrable) spamware that can catch and prevent many Internet-based security threats.  But that spamware works only on emails that come through the Company’s email servers.  Email that is opened through a web-based account, such as GMail or Hotmail is not subject to the company’s protective measures.

Which is precisely why many IT professionals see web-based email accounts as a major security threat.  But what’s an employer to do?  Employers have long been trying to prevent the productivity loss associated with employees’ personal use of the Internet during working time.  But now this effort has become a top priority.

Will employees stop checking their personal email at work if they’re asked nicely?  If they understand the risks?  Maybe.  Maybe not.  But it certainly wouldn’t be a bad place to start.  Perhaps your company should consider explaining to its employees exactly why you don’t want them to check their personal email during working time.  Hey, it’s worth a try.

By the way . . .

Data Security is the topic of one of the sessions at this year’s Annual Employment Law Seminar, which is coming up on May 8.  If you haven’t registered, there’s still time.  Just click here to get to the Seminar Registration page.

Father Learns a Costly Lesson about the Importance of Keeping Promises

Posted by Molly DiBiancaOn March 2, 2014In: Social Media in the Workplace

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When considering whether to settle a lawsuit filed by a current or former employee, many of my employer clients have serious doubts about the usefulness of a confidentiality provision. For good reason, employers don’t want the plaintiff to brag about the settlement, thereby encouraging other potential litigants. But, my clients often ask, will the employee really be silenced? Or will the employee just ignore his confidentiality obligation.  via Shutterstock

My answer has a few parts. First, having a confidentiality provision is better than not having one. Second, if the employer learns of a breach, it will, at least, have some options for holding the employee accountable. A story from last week’s news headlines confirms the validity of both points.

Teenager Dana Snay’s father settled an age-discrimination case brought against his former employer, Gulliver Preparatory School, for $80,000. When the girl learned about the settlement, she did what most teenagers would do—she posted about it on Facebook, broadcasting the news to her 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver. . . . Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay was just kidding about her European vacation—there was no such vacation in the works. But that’s probably not what bothered Gulliver. When it learned about the post, it refused to tender the settlement payment to Snay’s father, claiming that the post constituted a breach of the confidentiality provision in the settlement agreement.

And a Florida appellate court agrees. The Miami Herald reports that the court found in favor of the employer when Snay’s father sought to compel payment.

So what are the lessons to be learned, dear readers?

First, don’t underestimate the value of a confidentiality provision.

Second, understand your contractual obligations and abide by them strictly. Although many commentators are blaming Snay for her Facebook chattiness, the real fault lies with her father. He promised that he would keep the agreement confidential and he failed to keep his promise. There are consequences to such failures, which is why we spell them out in written contracts.