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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.

Chefs and Employment Law: A Valentine's Day Post

Posted by Molly DiBiancaOn February 14, 2014In: Fair Labor Standards Act (FLSA), Social Media in the Workplace

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Rumor has it that today is Valentine's Day.  Being married to a chef-restaurateur, Valentine's Day doesn't mean "romantic holiday" to me as much as "very, very busy workday."  And, for that reason, I'll dedicate today's post to the food-service professionals who have a long weekend of work ahead of them.

There are plenty of employment-law topics with a chef or restaurant connection.  Here are a few stories from recent history that come to mind.love heart tattoo art

 Wage-and-Hour Claims

Certainly, restaurants are not the only industry subject to wage-and-hour claims by employees.  But there does seem to have been a recent proliferation of settlements of such claims by businesses owned by famous-name chefs. 

There was the $5.25 million settlement forked out by Chef Mario Batali in March 2012, over allegations that servers' tips had been improperly withheld.  Then there was the January 2014 settlement agreement that Chef Daniel Boulud reached with 88 workers who alleged that their pay had been improperly reduced to account for tips, resulting in payment of overtime at an incorrect rate.  The amount of that settlement is confidential.  And, even more recently, there was the $446,500 settlement agreement reached to resolve the wage claims of 130 servers at two NYC restaurants owned by Chef Wolfgang Puck.

Why are so many wage claims against restaurants?  One reason is the complexity of the laws in this area.  The overtime laws are complicated even in the context of an employee who receives hourly wages only.  But, add to that tip credits, earned tips, and tip pooling, and you've got a virtual maze of complex issues.  The laws are not easy to navigate, especially without guidance from experienced legal counsel.

Social-Media Use and/or Misuse

I'd be remiss, of course, if I didn't give at least one social-media related story, too.  So I will end today's post with a reference to a story about a chef who sent a bunch of not-so-nice tweets from the restaurant's official Twitter account after he'd been fired but before (apparently) the restaurant had changed the password on its account.

Chef Grant Achatz, owner of Alinea in Chicago, landed in hot water when he tweeted about a couple who brought their 8-month old to dinner.  I have a definite opinion on this story.  Having been to Alinea, I feel very comfortable saying that it is not a place where an 8-month old needs to be and, if the 8-month old is crying at the top of his lungs, it's not a place where that baby should be.  The restaurant is very expensive, with meals starting at more than $200 per person.  Reservations are wickedly difficult to get with only 80 seats. 

Most important, though, is the nature of the experience.  Diners fight for reservations and pay big bucks for a reason--the meal is something you remember forever.  The food is so far beyond anything else, it's almost an Alice-In-Wonderland experience.  And to have that be ruined by the guests at the table next to you would be, to me anyway, a crushing disappointment. 

So, there.  That's where I stand on the question.  Chef Achatz's tweet did not offend me or make me adore his restaurant any less. 

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Posted by Molly DiBiancaOn February 12, 2014In: Purely Legal, Social Media in the Workplace

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Employment lawyers know the potential importance of social-media evidence.  I’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.)  Facebook Delaware

So employers may make decisions with social-media “evidence.”  Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.  (If you’re interested in the answer, here’s a link to an article I wrote last month for the ABA Business Law Section, Discovery and Preservation of Social-Media Evidence). 

Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered—is the evidence admissible in the litigation?  There is a split among courts as to the appropriate standard for admissibility of social-media evidence.  Without oversimplifying it too much, there are two approaches.

First, there is the Texas approach.  That approach requires the proponent of the evidence to make some proffer of authenticity.  In other words, if you want it to come into evidence, you have to make some affirmative showing that it is authentic.  If an employee, for example, denies writing the Facebook post, the employer must offer up some evidence to prove that the evidence is not fraudulent.  In short, under the Texas approach, the proponent does not necessarily need to prove that the social media evidence is authentic, so long as a jury "could reasonably find” the evidence authentic.

Second, there is the Maryland approach.  This approach imposes a higher standard and requires that the proponent of the evidence offer some sort of evidence to show that the posts are authentic.  For example, the proponent could ask the supposed author (i.e., employee) if he or she created the profile or post, search the internet history and hard drive of the purported creator’s computer, or obtain information from the social-networking site itself.  Those courts that have followed the Maryland approach cite to a concern that social-media evidence could be fake or otherwise inauthentic.

The Supreme Court of Delaware has now weighed in on the question.  In Parker v. State of Delaware, decided last week, the state’s highest court adopted the Texas approach.  Specifically, the Court acknowledged that social-media evidence could be falsified but concluded that such evidence should be treated like other forms of evidence.  In other words, where a proponent seeks to introduce social-media evidence, he or she may use “any form of verification” available under the Rules of Evidence, including:

witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.

This is, in my opinion, the correct approach.  Social-media evidence should not be made more difficult to authenticate merely because it is “possible” to falsify such evidence.  All evidence can be falsified.  To make the proponent attempt to authenticate a Facebook post by obtaining some kind of verification from Facebook is more than highly impractical—it can be close to impossible since Facebook will not release much, if any, user information absent a criminal subpoena or written consent from the user himself. 

This ruling is an important one—in Delaware and in those jurisdictions where the issue has not yet been decided—and I hope more courts adopt a similar finding. 

Parker v. State of Delaware

, No. 38, 2013 (Del. Feb. 5, 2014).

Demoted for Posting Picture of Confederate Flag on Facebook Page

Posted by Molly DiBiancaOn February 6, 2014In: Public Sector, Social Media in the Workplace

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Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights—in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages. 

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received. 

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful. 

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Disruptive Facebook Posts Warrant Termination

Posted by Molly DiBiancaOn February 3, 2014In: Social Media in the Workplace

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Employers continue to struggle with how to deal with the repercussions of employees’ online commentary.  When an employee is critical of his or her employer, supervisor, or coworkers on Facebook or other social-networking site, the employer’s knee-jerk reaction is often to discipline the employee.

Sometimes, that is the appropriate reaction.  And, sometimes, it is not.  How to tell which reaction is appropriate for any given comment (or series of comments) is the hard part.  I encourage employers to handle the situation as if the comments were made at a bar over the weekend or on the sidelines of a softball game—anywhere outside of the workplace—in an effort to put it into context.  I then counsel them that, if they still think a response of some sort is warranted, to proceed just as they would in any other workplace investigation.  Facebook firing

In other words, it’s best not to get all twisted about the fact that the conduct occurred online or that the comments were made via Facebook. 

A recent case from the 10th Circuit is a great example of that advice applied.  In Debord v. Mercy Healthy System of Kansas, Inc., the employee, Ms. Debord, was criticized by her boss, Mr. Weaver, after which, he tried to give her a hug.  (Hugging is, in my opinion, not all right at work.  I am not alone in this position, either.  See NPR, “A New Rule for the Workplace: ‘Hug Sparingly’”). 

In response, Debord posted—from her workplace computer, during working time—several posts to her Facebook page.  The posts contained comments critical of her employer, of Weaver, and of co-workers.  And some of the posts accused Weaver of unlawful and/or unethical behavior.  Several co-workers saw the posts and reported them to management.

Later that day, Debord was meeting with the company’s HR Director about an unrelated issue when Weaver interrupted and confronted Debord about the posts.  Debord denied having written any such comments.  Weaver brought in his laptop and showed the HR Director the posts on Debord’s Facebook page.  Debord again denied writing them. 

The HR Director met with Debord two days later and she again denied that she had written the posts on her Facebook page.  She finally relented, though, and admitted to her conduct.  She was suspended for one day without pay for acting in a manner inconsistent “with a high degree of personal integrity and professionalism.”  After it was determined that the allegations about Weaver were without any basis, Debord was terminated for “disruption, inappropriate behavior, and dishonesty.”

Debord sued on a number of bases but her termination was upheld by the district court and on appeal.  In other words, the 10th Circuit didn’t take issue with the termination of an employee because her Facebook comments caused disruption in the workplace.  Nor should there be an issue.  The employee used company resources to make false allegations about her boss, which were seen by several of her co-workers.  This conduct, to be sure, resulted in a disruption. 

Where there is an actual disruption caused by an employee’s activities—online or offline, there may be a legitimate basis for discipline.  But not always.  Here, the employee’s comments were elevated to a more serious level because they accused her boss of unlawful and/or unethical conduct.  That is a legitimately serious issue that the employer should address appropriately. 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642 (10th Cir. 2013).

Discovery and Preservation of Social Media Evidence

Posted by Molly DiBiancaOn January 27, 2014In: Purely Legal, Social Media in the Workplace

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This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law.  like tweet share follow letterpress

Other feature articles include:

-The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

-10 Tips for Avoiding Ethical Lapses When Using Social Media, by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

-Privacy and Social Media, by Theodore F. Claypoole

Enjoy!

No Love for Twibel Lawsuit Against Courtney Love

Posted by Molly DiBiancaOn January 27, 2014In: Social Media in the Workplace

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“Twibel” is the sporty little name someone clever has come up with as a way to say “libel via Twitter.”  In other words, if it would be defamation if it is published in a newspaper, it will be defamation if tweeted on Twitter.  And now we have a case that has gone all the way to jury verdict on just this subject. signing twitter bird with bow

Courtney Love was sued by her former lawyer, Rhonda Holmes, for defamation via Twitter (Twibel is not yet an official cause of action).  Holmes claimed that she had been defamed by the famous singer when Love tweeted that Holmes had been “bought off.”

Love didn’t settle the case, instead choosing to take her defense to a jury.  According to the Hollywood Reporter, Love testified that she believed that her comment was true at the time she posted it.  She also testified that she meant the message to be a private “direct message” to two friends and when she learned that it had been sent to the public, she quickly deleted it.

The jury was asked to decide whether Holmes proved by clear and convincing evidence that Love knew her tweet was false or doubted the truth of it.  The jury returned an answer of “no” and Love prevailed. 

So what’s the lesson to be learned?  Well, for one, defamation cases are hard to win, regardless of the medium of the message.  It often comes down to credibility of the witnesses.  And, apparently, the jury believed Love when she said that she didn’t mean to make false statements about her former attorney.   If nothing else, this verdict won’t prompt a wave of Twibel claims to be filed.