Delaware Employment Law Blog

As I wrote a few years ago, judges in Florida may not be Facebook friends with any lawyer who may appear before the judge.  (Opinion 2009-20, Nov. 17, 2009).  Last month, the Florida Judicial Ethics Advisory Committee made clear that this prohibition extends beyond Facebook.  In Opinion Number 2012-12, issued on May 9, 2012, the Committee opined that a judge may not be “connected” to lawyers who may appear before him on any social-networking site—including LinkedIn.  The inquiring judge had posited that Facebook and LinkedIn have distinctly different purposes—one for personal use and one for professional use.  Therefore, the inquiring judge asked, shouldn’t there be different standards for judges’ use of the two sites? 

The Committee did not agree.  Instead, it held that the relevant inquiry is not about the website or social-networking site or its purpose. Instead, the Committee determined that the process of selecting friends or connections “and the fact that the names of those friends or connections are then communicated – often, but not always, selectively to others – that violates Canon 2B, because by doing so the judge conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Other States

Massachusetts judges also may not be “friends” online with any attorney who may appear before the judge.  (Op. No. 2011-6).  So can judges in California, although that State’s opinion seems more qualified.  (Formal Op. No. 66) (2011).  Ethics opinions from Kentucky and Ohio reached a similarly qualified “yes.”  (Op. JE-119) (Jan. 2010); (Op. 2010-7) (Dec. 2010).

Other states’ judicial-ethics committees have come out differently than the Florida committee.  For example, Judges in South Carolina are not prohibited from being Facebook friends with law enforcement officers and employees who work for the judge, provided there is no discussion of anything related to the judge’s official duties.  (Op. No. 17-2009) (Oct. 2009).  Judges in New York also are permitted to participate in social-networking, provided the judge otherwise complies with the rules of ethics.  (Op. 08-176) (Jan. 2009).

But, in a Pennsylvania decision rendered earlier this year, a court determined that a judge had abused his discretion by not recusing himself from a case in which he was Facebook friends with the defendant, a local politician.

And then there’s the example of the New York criminal judge who was transferred after some of the lawyers who appeared before him complained that the judge had sent them Facebook friend requests.

Schools continue to struggle with social media. In particular, teachers’ online interactions with students via Facebook and other social-networking sites continues to be problematic. Some school districts have been successful in adopting social-media policies.  New York City, for example, recently implemented social-media guidelines for teachers and staff.  But school districts without social-media policies for staff are facing challenging times.

The Democrat and Chronicle.com, for example, reported one such story involving a teacher named Shari Sloane. According to the article, Sloane has no qualms about communicating with students and former students via her personal Facebook page. Some of her colleagues think the practice is unprofessional—others call it unethical. I would call it dangerous. 

Another Rochester-area school district, Churchville-Chili Central, adopted a social-media policy in March.  The policy prohibits communications between students and teachers other than those that are for “educational purposes only.” Although I commend any school district that recognizes the importance of addressing social media, I do have reservations about the policy.

It seems to me that teachers should not be discouraged from communicating with students. It’s more important that there be a mechanism in place to prevent inappropriate communications from taking place.  Thus, there are competing interests--preventing inappropriate communications while, at the same time, without restricting communications that benefit students, even if they’re not purely education-related.

One way to manage these interests is with a policy that prohibits “secret” communications. In other words, a teacher should be able to discuss non-educational subjects with students, provided that those discussions are known or knowable to school administrations and parents. As with most things in the word of social media, transparency is key.

That’s why the New York City policy is a better approach. That policy, according to the N.Y. Times, prohibits teachers from communicating with students via personal Facebook and  Twitter accounts but does not impose a general ban on teacher social-media use. Instead, the policy expressly provides that teachers may use social media and recognizes the educational potential of social media. The policy simply says that any communications must be done through district-provided technology. An excellent balance, it seems to me.

See also:

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

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

Court Denies Reinstatement to Teacher Fired for Facebook Posts

Blogging Teacher Returns to Work After Suspension for Posting About Students

Social-Media Woes for School Districts

More Social-Media Woes for School Districts

A tenured professor at Purdue University has sued the university, alleging that it wrongfully disciplined him after he posted anti-Muslim comments on his Facebook page. According to The Fire.org, Prof. Maurice Eisenstein, an Orthodox Jew, posted a picture on his Facebook page of “Christians killed by a radical Muslim group,” along with written comments questioning the response of moderate Muslims and insulting the Prophet Muhammad. 

The Facebook post led to student protests on campus and, later, to anti-harassment complaints by at least two other professors.  The professors later filed a second round of complaints alleging that Eisenstein had retaliated against them for their anti-harassment complaints.  The university is alleged to have conducted an investigation of the complaints, “forcing” Eisenstein “to go through a full-blown hearing to defend himself.”  As a result of the investigation and hearing, Eisenstein was cleared of violating the harassment policy but was found to have violated the retaliation policy.  As a result, Eisenstein received written reprimands.

The complaint alleges several counts, including: (1) an “administrative action” claim, which appears to be a due-process claim based on the university’s allegedly “arbitrary and capricious” disciplinary practice; (2) a state constitutional claim, based on the allegation that the complainant-professors “conspired and colluded” with the university’s Chancellor “to deprive Eisenstein of his civil rights” by filing their “unfounded complaints;” and (3) a state-law privacy claim, based on the allegation that the defendants read from a “confidential letter” written by the Chancellor at a faculty meeting. 

Based on the complaint alone, these claims seem attenuated at best. Unless there are additional facts not alleged in the complaint that could establish that the professors actually got together and colluded to harm Eisenstein’s reputation by filing complaints of harassment with the university, I would be not be surprised if all three counts were subject to dismissal on the pleadings.  Nevertheless, the lawsuit is yet another example of the troubles Facebook use by employees continues to cause employers of every size and in every sector.

Delaware is one step closer to legislating employers' ability to manage their workforces. I testified yesterday about the significant flaws in H.B. 308, called the "Workplace Privacy Act." The members of the Telecommunications, Internet, and Technology Committee nodded along, thanked me for my testimony, and then promptly voted to release the bill as is to the House of Representatives. This, my friends, is why I chose the legal profession over a career in politics.

As a result of the Committee's decision, the bill will proceed to the House in its very defective state. I've posted at length about some of the many, many concerns I have about the unintended consequences this bill would have on employers and employees. But, after my experience at Legislative Hall, I have just one additional thought to share.

It seems increasingly clear that the intention of the bill's sponsors is far more expansive than simply preventing employers from trying to get employees' and applicants' passwords. The intent, it seems to me, is to undo the entire body of case law that has been developed regarding privacy rights. In short, the sponsors are attempting to create a reasonable expectation of privacy in online activities and comments. This is directly opposite of what the law provides and would have tremendous implications on employers in every industry and of every size.

One good thing to come out of today's hearing, though, the increased awareness of the problems with this bill by the State Chamber of Commerce and its members. I'll be sure to keep you up to date with any developments over the next two weeks as we get closer to the next step in the legislative process. Until then, though, Delaware residents should consider contacting their state representative and expressing their concerns with the proposed law. Don't hesitate to direct them to the summary I wrote in my prior posts and the Comment Outline, which is linked in the second of the two posts. See Delaware Proposes Facebook-Privacy Law; and Why Delaware's Proposed Workplace Privacy Act Is All Wrong.

It’s only Wednesday but this has been a busy week already. If time allowed, I could write posts on several important employment-law-related topics. But, alas, my day job is keeping me busy, so this short-form recap of some of the more notable items will have to suffice.

Delaware’s Pending Password-Privacy Legislation

As I’ve written recently, there is a bill pending in Delaware’s House of Representatives that is intended to prohibit employers from requesting or requiring that an employee or applicant turn over his or her password. If you’ve read my posts on this topic, you know that I have significant concerns about the scope of the bill and its potential consequences for both employers and employees. This afternoon, the bill will be presented for vote to the Telecommunications, Internet, and Technology Committee.  I will keep you posted about the results of that hearing as soon as possible. Until then, you should consider reaching out to your State Representative and voice any concern you may have with the bill.

Pretexting Via Social Media

I wrote earlier this week about a high-school principal in Missouri, who is alleged to have created a fake Facebook account for the purpose of spying on students in her school. As I stated in that post, using deceit about your identity for the purpose of obtaining information about someone, known as pretexting, is a wholly unacceptable practice.

On her Ride the Lightning blog, Sharon Nelson writes of a story with similarly disturbing facts.  In the case that she discusses, an insurer in a dog-bite case permitted its private investigator to lie about his identity on Facebook so he could spy on the plaintiff—a 12-year-old girl.  Folks, if it’s not obvious already, this type of dishonesty is despicable and those who engage in it should not be surprised at the negative repercussions that result. 

Show Me the Numbers

The EEOC has released a new set of statistics relating to Charges of Discrimination filed in FY 2011.  What is notable about this data is that it marks the first time the EEOC has published private-sector statistics for each of the states and territories.  The statistics provide the total number of charges filed in each state and a breakdown of charge by type of discrimination.  This is the first time that state-specific information has been released and it offers helpful insight on a more granular level.

Lots of blawgers have reviewed this data as it relates to their particular states. For example, Dan Schwartz wrote about the Connecticut numbers and McAfee & Taft’s EmployerLINC blog posted about the Oklahoma stats.  And Chris DeGroff and Matthew Gagnon, of Seyfarth Shaw’s Workplace Class Action blog wrote about the significance of this data.

Another One Bites the Dust

Because I just never seem to grow weary of stories involving smart people who fail to exercise good judgment when using social media, I’ll toss this one to my loyal readers for good measure.  In this social-media saga, it’s a CFO who was terminated for improperly communicating company information through his Twitter feed and public Facebook profile. Jon Hyman and Phil Miles recap the story in more detail.

Delaware's version of a Facebook-privacy law, called the "Workplace Privacy Act" (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware's House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee's or applicant's password to his or her social-networking site.

In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.

I've outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here's the Executive Summary of what I consider are the most dangerous provisions:

No Friending, Even for Family

The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization--even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.

A supervisor whose teenaged son works for the same employer would be prohibited from "requiring or requesting" her son's Facebook password or "other related account information."

Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them

The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.

Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused--regardless of whether the individual wanted to clear his name.

The Rule, Though Too Broad, Is Swallowed By Its Exemptions--for Some Sectors

Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose--i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:

• Law Enforcement, who are altogether exempt from the provisions of the bill; and
• The Department of Corrections, . . . maybe.

The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited "from accessing an employee's social networking site for purposes of employee supervision and retention."

Pardon me? If you think you know what such purposes may include, I'd love to hear about it.

Don't Say I Haven't Tried

Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I forwarded my prior post and my comments to the sponsor for the Committee's consideration and review.

My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between "employer and employee," which is the only place I believe anything productive can be accomplished.

One of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation. Thus, the concerns raised on behalf of employees are as strong as the problems raised by the bill for employers.

Call to Action, Delaware Employers and Employees

If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.

Does Facebook cause smart people to act dumb? Stories of poor judgment via Facebook continue to make the news and continue to amaze me. But there seems to be no end in sight to the incidents of social-media stupidity. A recent story from Missouri may qualify for this category.

A high-school principal in Clayton, Missouri, is alleged to have created a fake Facebook account under the name "Suzy Harriston," reports the NY Daily News. Before you know it, she had more than 300 friends--many of whom were students at the high-school. A former quarterback outed her, posting her real identity on his Facebook page. The Suzy Harriston account disappeared and, the next day, the school announced that the principal was taking a leave of absence.

The principal resigned following a closed-session meeting of the school board. The school board stated that the district and the principal had "a fundamental dispute concerning the appropriate use of social media."

So, friends, what is the lesson to be learned here? Dishonesty is unacceptable. And dishonesty by a person in a position of trust and leadership is deeply troubling. It is, despite this principal's apparent belief, dishonest to pretend you are someone you are not for the purposes of obtaining information about another. It's called pretexting.

Don't engage in pretexting. Don't be dishonest. And don't endorse dishonest conduct by your employees or by your leaders. The rules are the same, even if the medium has changed.

Legislation, both state and federal, prohibiting employers from requesting an employee's or applicant's password continues to make progress. In Particular, the pending bills in California and New Jersey passed to the next level of their respective legislatures yesterday. The first two federal bills of this type of failed but, fear not, a new version has been introduced. Gone is SNOPA; the Password Protection Act of 2012 was introduced earlier this week. In an effort to keep up, I've put together the list below, which includes a reference to each of the states with pending legislation of which I'm aware:

California
Bill: Social Media Privacy Act
Date: May 10
Status: Unanimiously passed the State Assembly
Applies to: Employers; Post-secondar educational institutions
Other: Prohibition against "otherwise asking for access" to an account

Delaware
Bill: HB 308
Date: Apr. 26
Status: Referred to Committee
Applies to: Employers
Other: Multiple other provisions

Federal
Bill: Password Protection Act of 2012
Date: May 9
Status: Introduced
Applies to: Employers
Other: Prohibits requests for "access"

Illinois
Bill: HB 3782
Date: Mar. 29
Status: Passed House; pending in Senate
Applies to: Employers
Other: "or other account information for the purpose of gaining access"

Maryland
Bill: SB 433
Date: Apr. 9
Status: Approved by Gov.; Enacted
Applies to: Employers
Other: Prohibits: (a) any request for access to an account; (b) request for user name.

Massachusetts
Bill: HD 4323
Date: Mar. 23
Status: Filed
Applies to: Employers
Other: Prohibits any request for access to an account

Michigan
Bill: HB 5523
Date: Mar. 29
Status: Introduced; referred to Committee
Applies to: Employers; Educational Institutions
Other: Prohibition against requesting user to "disclose access information

Minnesota
Bill: HF 2963; HF 2982; SF 2565
Date: Mar. 26; Mar. 29; Mar. 27
Status: Referred to Committee
Applies to: Employers
Other: None

New Jersey
Bill: Bill A-2878
Date: May 10
Status: Approved by Committee
Applies to: Employers and Educational Institutions
Other: Prohibits asking if user has an account; law-enforcement exemption

New York
Bill: Sen. 6983
Date: Apr. 13
Status: Referred to Committee
Applies to: Employers
Other: (a) Prohibits asking for (i) log-in name, or (ii) "other means for accessing; (b) Exempts accounts owned by employer

South Carolina
Bill: HB 5105
Date: Mar. 29
Status: Referred to Committee
Applies to: Employers
Other: Prohibition against asking for "other related information" to access an account

Washington
Bill: SB 6637
Date: Apr. 11
Status: Reintroduced
Applies to: Employers
Other: Prohibition against asking for "other related information" to access an account

Delaware employers should be most interested (and concerned) with the legislation introduced by Rep. Darryl Scott (Dover). As I've written previously, I believe the proposed law goes far beyond what is necessary and would have significant negative implications for Delaware employers.

Is a public-sector employee engaging in "speech" for purposes of the First Amendment when he "likes" a post on Facebook? A recent decision from the Eastern District of Virginia concludes that the answer is "no." In Bland v. Roberts (E.D. Va. Apr. 42, 2012), the court held that employees in the Sheriff's Department did not engage in protected speech by "liking" their boss' political opponent's Facebook page. When the boss won the election, he fired six employees, who filed suit alleging 1st Amendment retaliation.

One employee claimed to have sent a "statement of support" to the losing candidate during the campaign. The only evidence presented to the court about such support was that he "liked" the candidate's Facebook page. In declining to find this expression entitled to constitutional protection, the court explained that:

merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements were within the record.

This decision has sparked a lot of fires around the blawgosphere. For example, on the Citizen Media Law blog, Arthur Bright analogizes "liking" to signing an online petition, which certainly would constitute speech. He argues that "liking" a post on Facebook relies on the same type of substantive expression. Venkat Balasubramani and Eric Goldman made this point on the Technology and Marketing Law Blog, as well.

I would not be at all surprised if the decision is appealed given the novel nature of the question (potentially, anyway), and the publicity the case has received. Until then, you may want to review other posts related to the effect of social media on the public-sector workplace. For example, this recent story about a firefighter's Facebook post about the Trayvon Martin case.

Delaware has joined several other States in proposing a Facebook privacy law, which would prohibit Delaware employers from requesting access to a candidate's Facebook or other social-networking site.

The proposed law, the "Workplace Privacy Act" (H.B. 308) is sponsored by Reps. Darryl M. Scott and William J. Carson and was introduced on Tuesday, May 1.

In some ways, the bill is similar to the Maryland law, which was the first of its kind to be passed into law, and the federal version currently pending in Congress (SNOPA). For example, the Delaware bill would prohibit employers from "requiring or requesting" that any "employee or applicant" disclose his or her social-networking-site password.

The bill goes further, though. Here are some of the more troublesome provisions of the proposed law:

1. The law prohibits employers from requiring or requesting that the user disclose "any other related account information."

This would seem to prohibit an employer from even asking whether the candidate has a Facebook account. There does not seem to be a legitimate reason for such a broad-sweeping prohibition. Moreoever, employers may have good reason to want to know whether an applicant has a Facebook or LinkedIn account. Additionally, isn't this information public in any event, even if access to the account's contents may be restricted?

2. The law also prohibits employers from requiring or requesting that a user log into a social-networking account in the empoyer's presence "so as to provide the employer access" to the user's account or profile.
This, in my opinion goes too far. Although I am not an advocate of this approach, it is not and should not be unlawful. There are certain industries and professions (i.e., the financial sector and law enforcement), that, in some cases, have a legitimate interest in a candidate's online activities. The employer should have the right to gain limited and temporary access the candidate's profile, provided the employer does so in a legitimate and responsible manner.

3. The law also prohibits employers from "accessing" a user's social-networking profile or account "indirectly" through the user's online friend or connection.
Again, this goes too far. And, in my opinion, has deeply troubling (and, likely, unintended), potential consequences. The worst-case scenario would go as follows: Employee reports to Employer that Coworker Posted on Coworker's Facebook profile that Coworker intends to cause harm to his supervisor. The employer has not just a right but a legal duty to prevent workplace violence and would be legally obligated to take stepst to prevent Coworker from carrying out this threat.

But the employer cannot simply fire Coworker based only on Employee's unverified report. It would need to first investigate the Coworker's claim. Most commonly, an employer will do this by asking the reporting Employee to pull up his own Facebook account for the purpose of showing Employer the allegedly threatening post of Coworker. But this provision of the proposed law would prohibit the employer from doing this.

Alternatively, Employer could call in Coworker and ask him whether he posted the threat as reported by Employee. But if Coworker denies making the post, Employer has no recourse and is forced to take him at his word because Employer would be prohibited from "requiring or requesting" that Employee log into the account to clear up the allegation. This, also, is an unsatisfactory result.

The scenarios go on and on. Consider, for example, a report of employee theft. Or an employee who is posting HIPPA-protected personal health information. Or an employee who is posting the employer's trade secrets? The employer would be without recourse in each scenario.

4. Anti-Retaliation
And, making it worse yet, the law would prohibit employers from "discharging, disciplining, or otherwise penalizing, or threatening to discharging, disciplining, or otherwise penalizing" an employee for his or her refusal to provide access.

Although I am not opposed to laws that prohibit employers and educational institutions from demanding an individual's password or log-on information, this bill, as currently drafted, goes far, far beyond what its sponsors likely intended.

I'll be sure to keep readers posted as developments occur.

In the meantime, you can read about what is happening around the country with regard to the issue of "Facebook-privacy laws" here:

Maryland Law Makes It Unlawful to Request Facebook Passwords
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
More States Consider Facebook-Privacy LawsShould Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords
Federal Legislation, SNOPA, Would Prohibit Employers from Facebook Snooping

Employers who request an employee's or job applicant's Facebook password continue to face pushback in legislatures across the country. As I posted last week, several states have introduced bills that would prohibit this type of coerced Facebook access. These states are following Maryland's example--Maryland was the first (and only, at the moment), to pass this type of law.

Two U.S. Senators were the first on the bandwagon, though, but their bill was unsuccessful. But a new version of the bill made its way back to the House of Representatives on Friday, courtesy of New York congressman Eliot Engel (D).

The bill, Social Networking Online Protection Act (SNOPA), which is cosponsored by Rep. Jan Schakowsky (D-IL), would restrict current or potential employers "from requiring a username, password or other access to online content," reports ZDNet.com. Specifically, the bill would prevent employers from seeking access to social networking sites "to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information."

SNOPA, like some of its state-law counterparts, would extend to colleges, universities and K-12 schools.

Stay tuned as this rapidly changing area of the law continues to develop.

See also:
Employers Who Demand Facebook Passwords from Employees. Oy Vey.
Maryland Law Makes It Unlawful to Request Facebook Passwords from Job Applicants
California Law Moves Closer to Prohibiting Employers From Requesting Facebook Passwords From Applicants
Should Cyberscreening by Employers Be Legislated?
Lawfulness of Employers' Demands for Employees' Facebook Passwords

Facebook indiscretions. Employees continue to make headlines by displaying bad judgment in circumstances ranging from the banal to the deeply disturbed. And employers continue to face difficult choices. Private-sector employers face possible claims under the NLRA. Public-sector employers face possible First Amendment claims.

Some cases, though, present a compelling case for employer action in response to Facebook comments posted during off-duty time. This is one of those case.

Miami-Dade Fire Department Captain Brian Beckmann posted a comment on his Facebook page about the Trayvon Martin case. Beckmann's post took aim at the prosecutor in the Martin case and claiming that "urban youth" are the products of "failed sh*tbag, ignorant, pathetic, welfare dependent excuses for parents."

A source who viewed the post sent a copy of it to thegrio.com, which broke the story. As you may imagine, many members of the public have raised serious doubts about Beckmann's fitness for duty as a public servant.

The racist nature of the posts also raises questions about what an employer can and should do when it learns of an employee's Facebook posts that seem to conflict with the employee's job duties.

[H/T Richard D. Tuschman at HR Defense Blog]

Maryland was the first state to pass legislation prohibiting employers from requiring an employee or applicant to turn over his or her Facebook password or log-in information for other social-networking sites.

On April 19, 2012, a similar law moved forward in the California state legislature.

And there are others. Here's a quick run-down of other states that are considering similar legislation:

• Michigan (H.B. 5523), has a bill that would restrict employers and educational institutions.
• Minnesota (H.F. 2963)
• Missouri (H.B. 2060)
• New York (S.B. 6938)
• South Carolina (H.B. 5105); and
• Washington (S.B. 6637).

See also:
Employers Who Demand Facebook Passwords From Employees. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employers' Demand for Employees' Passwords

Maryland was the first state in the country to pass legislation that would prohibit employers from requesting or requiring an applicant or employee to turn over his or her password to a social-networking account, such as Facebook. As I mentioned in the end of my post about the Maryland bill, California and Illinois had similar pieces of legislation in the works.

Yesterday, California inched closer to become the second state to adopt this new type of privacy law, reports the Sacramento Bee.

Senate Bill 1349 bans employers and educational institutions from requiring or formally requesting in writing that prospective or current employees and students to hand over their user names and passwords or provide access to the account. The bill, introduced by Sen. Leland Yee (D), was approved by the Senate Education Committee 7-0 and now heads to the Senate Labor and Industrial Relations Committee for consideration.

See also
Employers Who Ask for Applicants' Social-Media Passwords. Oy Vey.
Should Cyber-Screening Be Legislated?
Lawfulness of Employer's Demand for Applicants' Facebook Passwords

Can a Facebook friendship between an employee and her supervisor lead to a claim of disability discrimination under the Americans With Disabilities Act (ADA)? Have a look at the facts in a recent case from a federal court in Seattle, Washington and you can decide for yourself.

The plaintiff, Ms. Peer, was employed by F5 for just a month when she told the company that she was experiencing chronic pain and, as an accommodation, requested that she be permitted to work a reduced schedule. The employer obliged and Peer began working 30 hours per week, using paid and unpaid time off to cover the 10 hours per week that she needed to retain her full-time status.

After two months on a reduced schedule, Peer was diagnosed with major depression. The following month, she was released to return to her 40-hour week. A few weeks later, she was assigned to an early shift--6 am to 3 pm. She emailed her supervisor:

this shift is really stressing me out and exhausting me . . . [and] . . . the thought of having to do it for another 6 or 8 months or longer is making me really depressed.

The following day, she sent a Facebook message to her boss, apologizing for her email the day before and stating:

. . . I start crying the instant my alarm goes off in the morning and don't stop until I finally get to sleep at night. All I do all day at work for the past week is dream up practical ways to kill myself that won't require the people I love to clean up the mess. I've thought about going to the hospital, but don't think it would do me much good since I'm allergic to most psychotropic drugs, and that's really all they could do for me anyway . . .

A few days later, she posted on her Facebook page that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning."

HR met with the employee and told her that she was being placed on paid leave for two days to enable her to meet with her doctor. HR also told her that she would not be permitted to return to work until obtained a "valid work release" from her doctor. Peer provided a letter the next day from her doctor confirming that Peer was released to return to work full time. She was told she was not allowed to return to work due to her "suicidal thoughts."

Over the next three weeks, Peer attempted to return to work unsuccessfully. She spoke to HR several times in an attempt to clarify what exactly she was required to do to be cleared to return. HR's response was a confusing one (and, dare I say, sounds like it was written by a lawyer), telling Peer only that she needed to participate in the "interactive process" but not telling her how exactly she could fulfill that obligation.

Eventually, she was fired because she had failed to "address the issue of whether [she]remained a threat of harm." She filed suit under the ADA. After discovery was complete, the employer filed a motion for summary judgment. The court denied the motion, finding that there was a triable issue as to whether the employer satisfied its duty to engage in the interactive process with the employee to determine if an appropriate reasonable accommodation could be made.

So what can we learn from this case?

First, this case serves as an excellent reminder of what the ADA requires. The key to the interactive process" is that it must be interactive. Here, the employer gave vague and ambiguous answers to the plaintiff's requests for information about how she could return to work.

Second, I can't help but wonder how much of this case could have been avoided altogether if the employee had not been Facebook friends with her supervisor. Because of this online connection, she was able to send the supervisor the message that seems to have triggered the employer's actions.

In short, put this case in the column of "cons" when it comes to supervisors and their direct reports being Facebook friends.

Peer v. F5 Networks, Inc., No. C11-08790-JCC (W.D. Wash. Mar. 19, 2012)