Delaware Employment Law Blog

Teachers' use of social media is an ongoing problem across the country. Teachers are given little, if any, guidance about what is and is not appropriate online conduct. School districts, in turn, are left to decide the rules on an ad hoc basis. And uncertainty breeds disaster.

Cases of teacher termination based on social-media commentary are some of the most common in the employment-law world. Most of these cases have been decided in favor of the school district, finding that the district was within its rights when it fired the teacher for her inappropriate online posts. 

One case, though, came out in favor of the teacher. In March, I reported about a ruling from the New York Supreme Court, which overturned the decision of a disciplinary hearing officer. Before being overturned, the hearing officer had upheld the decision to terminate a teacher who had posted on her Facebook page that she wished that her students "would drown," along with other, equally distasteful comments.

Not surprisingly, the district appealed the decision of the Supreme Court to the New York Appellate Division. The appellate court, earlier this month, upheld the decision to set aside the termination. The order by the appellate court is quite short--just two pages in length--but filled with findings that should be of great concern for employers.

The court began its opinion by acknowledging that the teacher's "comments were clearly inappropriate." But, the court went on, it was "apparent" that the teacher's purpose in posting the offensive comments was "to vent her frustration only to her online friends after a difficult day with her own students."

The court went on to find that the teacher had, for this purpose, a limited expectation of privacy in her Facebook posts because her page was not public but could be viewed only by her Facebook friends. "None of her students or their parents were part of her network of friends and, thus, the comments were not published to them, nor to the public at large," explained the court.

Moreover, the court gave the teacher bonus points because she deleted the comments three days after posting them. The court acknowledges that the teacher then proceeded to lie about having made the comments at the disciplinary hearing several months later. The court excused this attempted cover-up, though, because it was done "out of fear of losing her livelihood."

The court also gave the teacher points because she "acknowledged that [her comments] were inappropriate and offensive, and repeatedly expressed remorse." Thus, the court concluded that, based on the teacher's 15-year employment history, during which she had had no prior disciplines, and her promise not to repeat the conduct, the Supreme Court had properly determined that the penalty of termination was shocking to one's sense of fairness."

Let's sum up what we've learned. If we follow the appellate court's reasoning, we're left with at least three troubling holdings. First, that a person has a reasonable expectation of privacy when posting comments online, provided that the person's page is not publicly available.

This is directly contrary to the majority of rulings in similar cases. Even in the discovery context, the majority of courts have found the opposite--that there can be no reasonable expectation of privacy when an individual posts something to the Internet. And that makes sense, doesn't it? I mean, in this case, someone did report the teacher's comments and the comments did become public. So how reasonable could it have been for her to expect otherwise?

Second, since when is "just venting" a legitimate defense?  Does the fact that she had a bad day somehow mitigate the harm that her comments may have caused?  For example, did the students and parents who learned about the comments and who lost faith in the educational system as a result think less badly of the school because the teacher was "just venting"?  Doubtful.

And, third, employees who lie when they've been caught engaging in terminable conduct can get out of jail free simply by saying they lied only because they didn't want to get fired and by promising not to repeat the conduct.

Really? Don't most employees try this when they get busted for doing something sure to get them fired? If a teacher with an otherwise unblemished employment history snorts cocaine in the bathroom during recess and then lies about it, can she avoid termination simply by promising not to do it again?

Or what about a teacher who is asked whether she witnessed conduct constituting sexual harassment by a co-worker. If she lies and says she didn't witness any inappropriate behavior, wouldn't the school be justified in disciplining or terminating her? After all, she's exposed the school to significant liability--not to mention her coworkers to potential future harassment. If her lies are later discovered, can she save her job by saying that she lied only because she didn't want to get fired and by promising not to do it again?

This case has some significant implications if its rulings are applied to other cases involving social media. I'll keep my fingers crossed that it is not.

Rubino v. City of New York, 2013 NY Slip Op 03272 (N.Y. App. Div. May 7, 2013).

I’ve posted before about restaurant employees’ Facebook posts that caused big headaches for their employers. I’ve also posted about trouble-causing Facebook posts by a saloon manager and by a tavern owner. Well, it seems that the trend has made it way to Delaware.

As reported by Patty Talorico on her Second Helpings blog, a Thai restaurant in Hockessin has landed itself in hot water as a result of unappetizing posts made to its social-networking sites. Photographs of customers’ receipts and of restaurant patrons were posted to the Instagram account of the restaurant’s manager. According to Talorico, racial slurs and derogatory comments were posted with the photos.

The manager reportedly told The News Journal that other employees have access to the accounts and that he didn’t post the controversial comments, “probably.”

One of the controversial posts read: “Cheap ass, order takeout and eat it at the bar #monday #cheap #trash.”  At around the same time, a photo of a receipt was posted, which showed that the customer left no tip on a $42.55 bill.

So far, I’m on the manager’s side—who orders takeout, only to eat it at the bar so he can avoid having tip?! For real? But my sympathy for the slighted restaurant worker ends there.

The manager is alleged to have then posted: “#cheapass … #jews #disrespect #jerk … #hillbillies #cheap Didn’t tip a single dollar.”

At the risk of stating the obvious, these comments are totally out of line. There’s no time or place—and certainly no Facebook page—where such comments would be anything close to appropriate.

And it apparently gets worse. According to Talorico, a photograph of a customer’s receipt, which showed that the customer, who had an Indian surname, had left less than 10 percent for a tip. The comment posted with the photo read, “What do you expect from a last name like that?”

Again, there’s nothing entertaining or funny about the manager’s commentary. Racist and other derogatory slurs about customers cannot be tolerated in any business but, when they’re coming from management, the potential repercussions are tremendous.

If you are an employer with a public Facebook page or other social-media account, it’s time to make sure you know who has access to post to the accounts and communicate the bounds of appropriate conduct apply both inside and outside of the workplace when it affects the business and its reputation.

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

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

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

At a settlement conference, the Magistrate Judge ordered the plaintiff to execute an authorization for his Facebook account. The plaintiff agreed to change his password so the defendants’ counsel could access the contents of his Facebook account. After the conference, the defendants’ counsel logged in and printed some of plaintiff’s profile page.

As a result, the plaintiff got a notice from Facebook informing him that his account had been accessed from an unauthorized ISP address. According to the plaintiff, he deactivated the account upon receiving the alert from Facebook but, 14 days later, Facebook “automatically deleted” the account and all of its contents. Therefore, all of the contents were lost permanently. The court ordered spoliation sanctions against the plaintiff in the form of an adverse inference.

Now, the reality is that the plaintiff actually deleted the account. Deactivating your Facebook account does not result in the “automatic deletion” of the account. Apparently, the plaintiff thought that he was deactivating it but actually deleted it. 

News to me was that Facebook permanently deletes contents of any account that is deleted and that it does so just 14 days after the account is deleted.

Either way, this case should serve as an important reminder to lawyers of their duty to take an active role in the preservation and/or production of clients’ social-media contents.

Gatto v. U. Air Lines, Inc., No. 10-cv-1090-ES-SCM (D.N.J. Mar. 25, 2013).

See also,

EEOC Sanctioned for Failure to Produce Social-Media Evidence

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants' Social-Media Posts

Call Me, Maybe. Discovery of Employee Identities

Manager’s Drunk Facebook Post Leads to Retaliation Claim

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

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

Fast-forward three months.

The employer files a motion for sanctions, alleging that the EEOC had failed to comply with the court’s order to produce the social-media data. The court granted the motion, finding that the EEOC had, in several material respects, made the discovery of claimants’ social media “more time consuming, laborious, and adversarial than it should have been.” In short, the court found that the EEOC had agreed to various discovery procedures only to later renege when the “higher-ups” at the EEOC learned about the parties’ agreement and didn’t, well, . . . agree.

In awarding the employer its reasonable attorney’s fees, the court had to use some judicial imagination, finding first that most of the sanctions rules did not apply because the EEOC had not litigated in bad faith. Instead, the discovery problems were more a result of bureaucracy, rather than intentional bad-faith tactics. Still, the court did find a rule that enabled it to award fees and, with any luck, send a strong message to the EEOC about the consequences of failing to cooperate (and keep its promises) during discovery.

Employees Must Turn Over Facebook Info For Harassment Claim

Discovery of EEOC Claimants' Social-Media Posts

W.D. Pa. Finds EEOC Failed to Conciliate

What Does “Good Faith” Mean to the EEOC?

When the EEOC Goes Too Far—Part 2

When the EEOC Goes Too Far

EEOC v. Ruby Tuesday

Call Me, Maybe. Discovery of Employee Identities

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

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

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

Ironically, Foley declined. She would, she said, “if it weren’t such a professional risk/liability.” Ah, yes. How wise she was. Too bad she hadn’t thought of that before posting the comments.

The story has a predictable ending. One of Foley’s Facebook “friends” sent screen shots of the posts anonymously to the University’s independent student newspaper. Foley is “no longer affiliated with the institution,” according to Inside Higher Ed, but school officials have been mum about the conditions of her departure.

Not surprisingly, the school does not have a social-media policy for its admissions officers.

Teacher’s Facebook Firing Upheld by N.J. Appellate Court

Social-Media Woes for School Districts

More Social-Media Woes for School Districts

The State of the Social-Media Mess in Public Schools

Students, Teachers, and Social Media

No 1st Am. Protection for Teacher's Facebook Posts

Court Denies Reinstatement to Teacher Fired for Facebook Posts

N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown

Blogging Teacher Returns to Work After Suspension for Posting About Students

Readers may recall the case, Stewart v. CUS Nashville, LLC, which is one of the few opinions on the discoverability of a party's social-media account. There were at least a couple of interesting issues in that decision but the most interesting part may be that the defendant is the entity that owns and operates Coyote Ugly Saloons. That's right--the one from the movie, where hot bartenders dance on the bar.

The case was initiated by two of those (presumably hot) bartenders, Misty Blu Stewart and Samantha Thomas. They originally brought claims under the FLSA, alleging an unlawful tip-pooling policy. Those claims are quite interesting--so much so that I'm going to write a separate post about them later in the week. So stay tuned for the FLSA angle.

In the meantime, I have to write about the retaliation claims that the named plaintiffs added to their complaint.

The Allegations
First, Ms. Misty Blue Stewart (yes, really). Ms. Stewart worked at the Coyote Ugly saloon in Nashville until she was fired for giving away free drinks (a/k/a stealing), in December 2009.
Ms. Stewart claims that, one month after she initiated her FLSA claim in April 2011, the founder and president of the franchise, Liliana Lovell, wrote a post on her blog, which is hosted on the Coyote Ugly website about the lawsuit: "This particular case will end up pissing me off[,] cause it is coming from someone we terminated for theft."

[Side Note: The rest of the post is pretty hilarious. You can read it on the Technology & Marketing Blog, where Venkat Balasubramani wrote about the case.]

Ms. Stewart had already found a new job, so she had no economic damages. Instead, she claimed that was "humiliated and embarrassed by the blog entry."

Second, Ms. Stone. Stone worked at the saloon in Oklahoma City. Her retaliation claim was based on two comments made by the Director of Operations, Mr. Huckaby. Huckaby was in town for a party that was being held at the saloon and, like all good Directors of Operations tend to do, apparently found himself two sheets to the wind before the night was over.

While under the influence, Huckaby posted on his Facebook page, "Dear God, please don't let me kill the girl that is suing me . . . that is all. . ." Stone, who was (of course), Facebook friends with Huckaby, saw the post about an hour later. The post was gone by the next day. Huckaby does not remember making the post or removing it.

The second comment occurred the next night. Ms. Stone testified that Huckaby learned that a customer had fallen down the stairs in the saloon and had threatened to sue. In response, Huckaby yelled out, "Why does everyone sue? I'm tired of all these bi***es taking their issues out on our company. They're f***ing idiots."

Ms. Stone testified that, although Huckaby was looking at the saloon manager, Amber Almond (yes, really, again), he sort of looked towards Ms. Stone as he yelled. Stone quit the next day and alleged constructive discharge. Huckaby does not remember making the statement.

The Decision

I'll start with my conclusions because, heaven knows, I hate to bury the lead. I think the court got this one wrong. As in wrong. So, there, I said it. I think this was a bad decision. You can decide for yourself.

With respect to Misty Blu, the court found that there was sufficient evidence of retaliation to survive the employer's motion for summary judgment. The employer argued that there was no evidence of an adverse employment action--a necessary component of a retaliation claim (i.e., an adverse action must be taken because of protected activity). The court disagreed and found that the comment in the founder's blog post about being fired for theft was, if false, enough to constitute an adverse action.

Here's the main problem I have with that decision--the employee had not been an employee for about 16 months at the time of the blog post. Not to mention that the employee was not referenced by name. And not to mention that there was no evidence that the employee hadn't been terminated for theft. The court seems to confuse a statement that the employee committed theft with a statement that she was fired for theft. They're not the same thing, are they?

Okay, moving on to Ms. Stewart. The court held that Stewart's claim of constructive discharge also could survive summary judgment. The sum total of the evidence that Stewart presented in support of this claim was as follows, assuming everything in her favor:

1. A manager from Corporate made a snarky comment--without naming any names or even job titles--apparently while in the bag, which Stone viewed for all of two seconds and which was taken down a few hours later.

2. The same manager, who, let us not forget, was in town only for this party, made a comment about "bi***es" who sued the company upon learning that the company was being sued by someone other than the plaintiff.

Folks, if this constitutes a constructive discharge, well, color me confused. How the court concluded that these two incidents could lead to the type of intolerable conditions that are required to warrant a constructive discharge is beyond me. Maybe the standard is significantly different in the 6th Circuit. Because here, in the 3d Circuit, the standard requires far more dire conditions. Thankfully.

After all of that has been said, though, where are we? What are the lessons of today's post? Well, try these on for size:

1. Please, please, please, discourage your supervisors from being Facebook friends with employees. It's a bad idea. Particularly if your supervisors have a tendency to "drunk post" from the workplace.

2. Don't let employees check Facebook while they're on the clock. Yeah, yeah, I know. You disagree. But if Stewart hadn't been permitted to check Facebook from her phone while on the clock, she wouldn't have seen Huckaby's post, which was gone a few hours later.

3. If you're the owner, founder, senior executive, etc., don't comment about confidential matters--including lawsuits and employee issues--on the company's publicly available blog. (Interestingly, the only other time I've seen this was also with a female bar owner, who made a similar comment on her Facebook comment and was sued for retaliation, which leads me to the next and final lesson for today. . . )

4. Read this blog. Had Ms. Lovell read the post I mention above about how social-media rules also apply to supervisors, maybe she would have avoided the whole mess.

Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342, 2013 U.S. Dist. LEXIS 16035 (M.D. Tenn. Feb. 6, 2013).

Ok, dear readers. No doubt that, by now, you think I've abandoned my post. Fear not, loyal readers, fear not. I am entirely certain that I am now, once and for all, through with the bit of illness that managed to slow me down for the first three weeks of the new year. Now that February is here, though, I am absolutely determined to get back to it.

The story featured in today's post highlights a similar sense of bullish determination of a different sort. The story, which came to my attention courtesy of Evan Brown at Internet Cases, involves a 911 supervisor in New York. The supervisor-petitioner photographed a computer screen containing confidential and privileged information concerning a 911 caller's complaint of a gynecological emergency.

He also photographed the caller's name, address and telephone number, all of which he uploaded the image to his Facebook account, along with the caption "[c]an't make this up." Actually, what you can't make up is that the petitioner had the nerve to appeal his termination. Bullish determination, indeed.

Thankfully, the Court affirmed the decision to terminate, finding that, because the Facebook post violated the FDNY's policies and was a serious violation of trust (not to mention HIPAA!) the penalty imposed did "not shock [the Court's] sense of fairness."

Palleschi v. Cassano, No. 9104, 2013 N.Y. App. Div. LEXIS 433, 2013 NY Slip Op 437 (N.Y. A.D. 1st Dept. Jan. 29, 2013).

Employees getting terminated for negative comments posted on Facebook about their supervisors. This, I predict, will be the #1 issue facing employers in 2013. But here's an unusal twist on that story. What about the manager who rants about employees on Facebook? And not a petty rant or a profanity-laden post, either. Just a post that says something to the effect of, "Why'd you call in sick today if you're at a picnic?" A district court in Texas didn't have a problem with it.

Plaintiff Virginia Rodriquez was a manager at a Sam's Club store in Texas when she was put on a performance-improvement plan so that any subsequent violation would result in her termination. Approximately 9 months after being placed on disciplinary status, Plaintiff viewed pictures of co-workers at a July 4th holiday party. Those same co-workers had called in sick to work that day. Apparently, Plaintiff was less than thrilled when she learned that her coworkers were out having fun while she was stuck at work or, perhaps, she was the only one not invited to the party. Either way, she wasn't happy about her discovery.

To express her displeasure, she posted on one of the employee's Facebook page, chastising the group for calling out. (The Court describes the comments as "public" but it is not clear whether they were actually public for all the world to see or only viewable by the user's Facebook friends.) The employee reported the incident to HR. Following an investigation, HR determined that Rodriquez had violated the company's Social-Media policy by "publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns." Because she was on probationary status, Rodriquez was terminated.

Sure enough, Rodriquez subsequently filed a charge of discrimination, alleging age and national-origin discrimination and retaliation. The state agency determined the Charge to be without merit but she filed suit anyway. On summary judgment, the court dismissed the plaintiff's claims, though, finding that the employer had demonstrated that its decision to terminate was based on her violation of the social-media policy. Specifically, the court held, the employer's decision to fire the plaintiff after she elected to publicly chastise her direct reports via Facebook instead of in person was legitimate and non-discriminatory.

I think most rational minded employment lawyers would agree that the court's decision was right. There was no evidence that the plaintiff was fired for anything other than her comments on Facebook, which violated the company's policy. That said, the facts of this case are reflective of the myriad of variations on the same problem--use of social-media to discuss work and co-workers. My prediction stands--this issue is not likely to go away any time soon.

Rodriquez v. Wal-Mart Stores, Inc., No. 3:11-2129-B (N.D. Tex. Jan. 9, 2013).

What does the NLRB have against handbooks? Doesn't the Board have policies and procedures for its employees? I imagine it does, don't you? So why does the Board continue to find fault with employers' workplace policies?

The Board's recent Order has my head spinning like I spent the afternoon on a roller coaster. In GCA Services Group, Inc.,, the United Food and Commercial Workers Union Local 99, AFL-CIO, filed a UPL, contesting the legality of various provisions in the employer's handbook. The employer and the Union resolved the dispute by a Formal Settlement Stipulation, which was approved by the Board on January 16, 2013.

As a result of the Stipulation, the employer must remove the disputed provisions from the hourly-employee handbook, which, according to the Board's Order, are "overly broad and discriminatory."

Ok, kids, hang on tight. Here's where the ride gets a little scary. Please keep your arms and other body parts inside the car until we have completed the descent.

As you may have guessed, the Confidentiality provision was the first to go. Here's just a portion of the offensive language:

Confidential, proprietary, and private information about [the Company], employees, and customers, is intended for use within the scope of your job at the facility.

Not only is the company's information no longer confidential but the employees' personnel records are now open for business. Here's the language that the Board says have to go:

Your employment record is considered confidential and includes your resume, benefit selections, performance reviews, employment history, and other employment information.

Even the non-harassment policy was a problem! I'm guessing it was the following language regarding confidentiality that caused the Board heartburn:

Confidentiality will be maintained throughout the investigative process to the extent practicable and consistent with the Company's need to undertake a full investigation.

Perhaps the biggest shocker was the issue the Board had with the company's policy titled, Use of Communication Systems, which outlined the acceptable use of company-provided email.

The problem with the Settlement for purposes of prevention is that there's no indication of what exactly the Board objected to or what language the Board would not find objectionable. It seems virtually impossible that the Board took issue with each and every sentence of each of the disputed policies. But we really don't know, since large excerpts were quoted in the opinion. And we definitely don't know how the provisions could be altered to comply with the NLRA.

GCA Servs. Group, Inc., 28-CA-080785 and -083504 (Jan. 16, 2013)

Schools have been dealing with the social-media blues, basically, since Facebook was merely a glimmer in Mark Zuckerberg's eye. See Social-Media Woes for School Districts and More Social-Media Woes for School Districts. The balancing act is a tricky one. On one hand, you have the First Amendment rights of teachers to live a life outside of the classroom and to post about it on their blogs and social-networking site. On the other hand are the school's rights as an employer to accomplish its primary mission--to educate students--and to manage its operations effectively.

There are plenty of news stories about teachers who are disciplined or terminated due to information posted online. And, unlike most areas of the law involving social-media issues, there are several reported opinions on this question. More often than note, the termination decision is upheld, based on the court's finding that the teacher's First Amendment rights were outweighed by the school's interest in maintaining peace and order.

Occasionally, though, a decision comes down the other way, finding that the teacher was unlawfully terminated. One such case involved a first-grade teacher from Paterson, New Jersey. We first reported on this story in November 2011, when parents complained that Jennifer O'Brien had referred to her students as "future criminals" and analogized her job to being a "warden" in posts on her Facebook page.

At the administrative level, the administrative law judge recommended that O'Brien be terminated for her Facebook posts. The ALJ determined that the school district's need to operate efficiently trumped Ms. O'Brien's free-speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

O'Brien appealed the ALJ's decision to the acting commission of education. When the commission agreed with the ALJ, O'Brien appealed to the New Jersey courts. Last week, the appeals court issued its ruling, upholding the termination. In short, the court found that her comments were, indeed, "conduct unbecoming a tenured teacher," which is any conduct that has a "tendency to destroy public respect for government employees and confidence in the operation of public services."

Mark another line in the Win column for employers.

See also,
The State of the Social-Media Mess in Public Schools
Students, Teachers, and Social Media
No 1st Am. Protection for Teacher's Facebook Posts
Court Denies Reinstatement to Teacher Fired for Facebook Posts
N.Y. Teacher's Firing Overturned Despite Facebook Wish that Students Drown
Blogging Teacher Returns to Work After Suspension for Posting About Students

Michigan is the latest State to pass a "Facebook-privacy" law. The law, called the Internet Privacy Protection Act, was signed by Gov. Rick Snyder last Friday. The law prohibits employers and educational institutions from asking applicants, employees, and students for information about the individual's social-media accounts, reports The Detroit News.

The Michigan law contains four important exceptions. Specifically, the law does not apply when:

1. An employee "transfers" (i.e., steals) the employer's "proprietary or confidential information or financial data" to the employee's personal Internet account;

2. The employer is conducting a workplace investigation, provided that the employer has "specific information about activity on the employee's personal internet account;"

3. The employer pays for the device (i.e., computer, smartphone, or tablet), in whole or in part; or

4. The employer is "monitoring, reviewing, or accessing electronic data" traveling through its network.

The enactment of Michigan's Social Network Account Privacy Act makes Michigan the fifth State this year to enact legislation that prohibits employers from requiring or requesting an employee or applicant to disclose a username or password to a personal social-media account. Maryland, Illinois, California, and New Jersey were the first four. California and Delaware passed similar legislation applicable to educational institutions. Notably, new legislation was introduced in California on December 3, which would extend that State's law to public employers.

I continue to believe that these laws are unnecessary and do nothing more than expose employers to legal risk with no real benefit to the citizenry. However, of all of the states to have passed such "internet-password-protection" laws, Michigan's is the first to contain these critically important exceptions. Without them, the laws have the potential to paralyze employers from conducting internal investigations that are necessary to protect both the organization as a whole and individual employees.

Problems With Delaware's Proposed Social-Media Law

Lawfulness of Employers' Demands for Facebook Passwords

Should Employer Cyberscreening Be Legislated?

Employers Who Demand Facebook Passwords from Employees. Oy Vey.

Can an employee be fired for violating a social-media policy that doesn't exist? This is a question that many employers have faced. And, if the NLRB continues to scare employers away from social-media policies, it's a question that will continue to arise.

The answer, simply put, is "yes." Employers need not have express written policies on each and every possible workplace infraction. For example, if an employee decided he would speak only Vulcan at work, he surely could be terminated without legal consequence. Similarly, most employers do not have a policy prohibiting employees from walking around the office on their hands. Yet, terminating an employee for clown-like conduct would not trigger a lawsuit.

The same concept applies when it comes to social media. If an employee posts the employer's confidential information on the employee's Facebook page, the employee can be terminated, right? Whether there is a policy that specifically prohibits employees from leaking confidential information via social media is irrelevant. So long as the adverse action is not being taken for unlawful reasons, a written policy is not necessarily required.

That said, whether an employer can do something is often quite different from whether it should do it. This is particularly true when it comes to social media.

A recent example of this dichotomy involves a meteorologist from Shreveport, Louisiana who was fired for allegedly violating her employer's unwritten social-media policy:

A broadcaster at a news station in Louisiana politely responded to a Facebook comment about her hair. She lost her job over it, via a policy that wasn't codified. Was that legal? Was it fair?

You can read my answer to both questions at Ragan.com.

In my previous post about EEOC v. Original Honeybaked Ham Co. of Ga.,, I described a somewhat ambiguous, if not unusual, procedure for the production and review of individuals' social-media accounts ordered by a Magistrate Judge. In short, the Judge's well-reasoned decision attempted to balance the individual claimants' privacy interests with the defendant-employer's right to broad discovery of potentially relevant information. Faced with these two competing interests, the court crafted a fairly complex, multi-tiered, and dynamic process to collect, review, and produce the information from the former employees' social-media accounts.

The EEOC has filed an Objection to that decision. (An "objection" is, to put it simply, an appeal of a magistrate judge's decision to the trial judge). The objection gives us a bit more insight but a lot more questions.

The EEOC acknowledges in its objection that, since the issuance of the discovery ruling, the Magistrate Judge had revised the procedure--perhaps more than once. This indicates, and the EEOC makes clear, that the court has been and is continuing to be flexible in working with the parties towards a workable procedure. Nevertheless, we do not know what the alterations were.

One of the changes, though, is described in the Objection. Specifically, the EEOC states that the Court eliminated the appointment of a special master and, instead, designated an EEOC employee with computer-forensic qualifications to perform the collection. Under the initial Order, the claims were to turn over their log-in and passwords to their Facebook accounts to the special master, which caused a big stir among commentators. Now that the data will be harvested by EEOC personnel, perhaps the password issue is an issue no more.

But none of this addresses my bigger question--why make the process so complicated? Particularly, I wonder whether it wouldn't have been easier to have the claimants download their account information by using the tool provided by Facebook precisely for that purpose. DIY e-discovery of social-media seems to me to be a better option than the process in this case--at least the version of the process outlined in the Order.

Lawyers' use and misuse of social media is, as many readers know, a topic that I love. Although it's been a while since I posted about a lawyer's social-media "fail," it certainly isn't because of a lack of potential stories. Here's a recent story that made the headlines of the Huffington Post.

Sarah Peterson Herr was employed as a research attorney for a Kansas Court of Appeals judge when she tweeted about that State's former Attorney General, Phill Kline. At the time of the tweets, Kline was appearing before the Kansas Supreme Court as part of an ethics investigation.

The tweets weren't exactly journalistic in nature. Nor were they very complimentary of the former AG. In one, Herr asked, "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." How charming. In another tweet, Herr predicted that the former AG would be disbarred for seven years for his conduct during investigations of abortion providers.

It's unclear where exactly Herr was when she posted the tweets but it does seem that, if she wasn't actually present at the hearing, she was purporting to be. Either way is problematic. Judicial staff, including staff attorneys, are prohibited from commenting on pending cases, as are the judges to whom they report.

When the story broke, Herr apologized, saying that she "failed to realize her posts were readable by all Twitter readers," reports the Huffington Post. She was suspended with pay on Friday but, by Monday, the Kansas Supreme Court's Chief Justice announced that Herr had been terminated and referred to the appropriate ethics offices.

The discoverability of social-media evidence is far from a settled question. Many of the few cases that have addressed the question are employment claims. And the latest such decision is no exception. In EEOC v. Original Honeybaked Ham Company of Georgia, Inc., No. 11-02560-MSK_MEH (D. Col. Nov. 7, 2012), the Colorado District Court granted an employer's motion to compel and required the employee-class members to turn over their log-in and passwords to a special master, who would make an initial determination of discoverability.

The EEOC filed suit on behalf of approximately 20 female employees, who, the EEOC alleged, had been subject to unlawful sexual harassment and retaliation by their former employer. The defendant-employer sought to compel the class members to produce unredacted versions of their social-media accounts.

The court first reminded the parties that it was determining what was discoverable--not what would be admissible at trial. The court next acknowledged that discovery of social-media information is a "thorny and novel" area of the law. Then the court reached its first substantive conclusion:

The fact that [information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.

Based on that conclusion as its starting point, the court then turned to the question at hand. First, the court concluded that the evidence was discoverable. This finding was based on postings by one of the former employees to her Facebook page. In those posts, the employee discussed her financial expectations in the lawsuit; sexually amorous communications with other class members, and post-termination employment and income, to name a few. Other class members posted comments to this individual's Facebook page.

The court then discussed the privacy interests of the class members and concluded that a process was needed to ensure that only relevant, discoverable information would be gathered. To do this, the court would appoint a forensic expert a special master. The court ordered the employees to provide "directly and confidentially to the special master," all "necessary information to access any social media website" the employee had used during the relevant time period.

The parties are then to submit a joint questionnaire for the special master to use in gathering the information. The special master would then provide the court with a hard copy of all of the information yielded by the process and the court would conduct an in camera review. The court would review the information for relevancy and turn over only what was relevant to the EEOC.

So, what's to be learned from this decision? First, litigants are going to continue to bring this issue to the court. Second, parties are going to continue to post information relevant to their claims on social-media accounts. And, third, the courts are going to continue to struggle with the best way to order such information be produced.

In this case, with a class of claimants, there does seem to be some justification for the incredible use of the court's resources and time but, more often than not, such justifications will not be present. And in those cases, what is the appropriate process for the collection, review, and production of social media? That remains to be seen.