Delaware Employment Law Blog

A decision from the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge's decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?

On May 1, 2011, Pennsylvania State Representative Cherelle Parker was arrested for drunk driving. During a hearing in November 2011, the presiding judge, the Honorable Charles Hayden suppressed the testimony of the arresting officers, finding that, due to conflicting evidence, the officers' testimony was "impossible" to believe.

After the Court issued its decision, the Attorney General became aware that Judge Hayden was Facebook "friends" with Representative Parker. Judge Hayden refused to recuse himself and the Attorney General appealed the case to the Pennsylvania Common Pleas Court. In January 2012, the Court issued an order reversing Judge Hayden's ruling and ordering that he recuse himself from the case.

The basis for the Court's order was its determination that Judge Hayden had abused his discretion by not recusing himself from the case, reports WHYY's Newsworks. (Note: As of this post, we've been unable to locate a copy of the court's order. Thus, our information is limited to the news reports. If you have a copy of the order, we'd appreciate having a look at it.)

This approach, however, seems likely to cause problems. Take this case for example: Judge Hayden has more than 1,500 Facebook "friends," and Representative Parker has more than 4,500 Facebook "friends." Moreover, Pennsylvania judges are elected, making them politicians of a sort. In this day and age, it is not unusual for politicians to have aids manage their social media accounts, especially when they are used for professional rather than personal purposes. Finally, most people with Facebook accounts will readily acknowledge that there is a real difference between a friend and a Facebook "friend." Indeed, Representative Parker's attorney asserts that she and Judge Hayden had no personal connection beyond their Facebook accounts.

Editor's Comments by Molly DiBianca

Social-media activity by judges is an issue not likely to go away any time soon. Although many, if not most, judges do not use social-media sites like Facebook for personal use, it seems inevitable that this statistic will change and the number of judges who engage in social media will increase. This raises at least two questions. First, how, if at all, does the use of social media (and, particularly, social-networking sites), by judges affect their ability and/or perceived ability to remain impartial when an online "friend" is before them in the courtroom? Second, should bar associations opine about and/or take a formal position with respect to this question?

Ethics committees in at least five states have issued advisory opinions regarding online friending of attorneys by judges. All but one of the states to have addressed the question has come out on the side that friending an attorney who may appear in the judge's courtroom is not, per se, impermissible, provided that the judge complies with the rules of ethics in all other respects, including impartiality. (Committees in Ohio South Carolina, and North Carolina have issued advisory opinions that permit judge-attorney friending; Florida's ethics body concluded that such friendships were not appropriate).

But the story addressed in Lauren's post, above, deals with a separate issue--specifically, whether the existence of a Facebook friendship between a judge and a party requires the judge recuse himself as a matter of course. Although the Pennyslvania court seems to have decided the answer to this query is "yes," I am not convinced that it is quite that simple.

We would love to hear your thoughts on the issue--can a judge who is Facebook friends with a party (plaintiff or defendant) remain impartial or should he be required to recuse himself because of that online connection?

Employers and social media--boy oh boy, new problems seem to crop up daily. One of the more recent problems is ownership of social-media accounts. The decisions are mixed. For example, one court ordered an employee to return social-media log-in and password information to his employer. But when an employee files suit against his employer for using a social-media account that the employee claims for his own, the tables can turn.

The defendants were an interior-design firm and its owner. The plaintiff, Jill Maremont, worked for the firm as its Director of Marketing, Public Relations, and E-commerce. During her employment, Maremont became well known in the local design community and developed a substantial "personal" Twitter following.

As part of the firm's social-media marketing campaign, Maremont created a blog, which was hosted on the firm's website. She also created a Twitter account using the firm's computer at the firm's office. For reasons that were not explained by the court's opinion, the parties apparently did not dispute that Maremont's "personal Twitter and Facebook accounts were not for the [firm's] benefit." The parties also did not dispute that Maremont created a "personal following on Twitter and Facebook for her own economic benefit and also because, if she left her employment at [the firm], she would promote another employer with her Facebook and Twitter followers."

Maremont filed a complaint alleging four counts: (a) Lanham Act; (b) Stored Communications Act; (c) a state statutory privacy claim; and (d) a state common-law privacy claim.

Subsequently, Maremont was seriously injured in a car accident. While hospitalized, she learned that the firm had updated Maremont's Facebook page and that some of the posts promoted the firm. She also learned that the firm had accessed her Twitter account and used it to post promotional tweets. She asked the firm's owner to refrain from posting updates to Maremont's Twitter and Facebook accounts but the updates continued. Maremont and her husband later changed the password for her Twitter account. Maremont was able to return to work but only for a brief period of time. She left work and did not return.

The court looked first at the false-association or false-endorsement claim brought under the Lanham Act. False endorsement occurs when "a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service." The court let this claim proceed.

The court then turned to the SCA claim. Maremont claimed that the defendants had accessed her personal Twitter account without her permission or authorization. The SCA provides for a cause of action for unauthorized, intentional access to communications held in electronic storage. The defendants admitted that they sent 17 tweets from Maremont's account while she was hospitalized and not at work. Therefore, the court held that the SCA claim could proceed because there were disputed issues of fact as to whether the firm was authorized to access Maremont's personal accounts.

The court dismissed the final two claims, finding that there could be no invasion of privacy for public information and that the defendant had not purported to be Maremont and, as a result, had not misappropriated Maremont's image on the firm's behalf.

Without a doubt, the key lesson from this case for employers is this: when you want to use social media for marketing or promotional purposes, do so with the same rules you would apply to any other business venture. Social-media accounts should be treated like any other company property. Implement rules for their use, just like you would for a company vehicle or credit card. Communicate those rules and enforce them when broken.

Maremont v. Susan Friedman Design Group, LTD, No. 10-07811 (N.D. Ill. Dec. 7, 2011) (PDF).

(H/T to Social Media Employment Law Blog).

See also:
Ex-Employee Must Return Social-Media Account Info to Employer
Who Owns Your Company's Twitter Account?

Continuing the theme from yesterday, here is another story of the impact social media is having on educators. This story is a follow-up to the post written last month by Michael Stafford, No First Amendment Protection for Teacher's Facebook Posts. By way of recap, Jennifer O'Brien was a first-grade teacher in a largely black and Latino school in Paterson, New Jersey, posted on Facebook that she felt like a "warden for future criminals," as reported by NPR.

O'Brien was terminated and subsequently filed suit alleging the district had violated her First Amendment rights. When the suit was later dismissed, O'Brien's lawyer defended her client's Facebook comment, syaing that it was not a reflection of how O'Brien felt about her students. Instead, claimed the lawyer, the comment had been a mere expression of frustration made at the end of a tough day.

I find that defense a bit difficult to buy, frankly. It requires us to disregard what a teacher writes because she "didn't really mean it"? In other words, "Do what I say and not what I do." That sounds like a bad idea for anyone but particularly for a teacher, who is supposed to serve as a role model for the children she teaches.

See also, Social-Media Woes for School Districts

Teachers' use of social media continues to make headlines. NPR reported on a recent incident in New Jersey, involving Union High School teacher, Viki Knox. Knox was suspended in response to outrage surrounding comments she'd posted on her Facebook page.

It started with her post that the school's gay-history exhibit should be removed. She later urged her friends to pray and called homosexuality a "perverted sin," according to NPR. After parents complained about the comments, the school district began an investigation. Later, Knox's supporters and those demanding her resignation faced off in a protest at a school-board meeting.

As I've previously explained, a three-step test is used to determine whether a public employer, including school districts, may discipline an employee due to the employee's speech. First, the court will ask whether the employee was speaking as a citizen or as an employee. Here, that question could be answered either way. Assuming the exhibit was not related to Knox's job duties, it is reasonable to conclude that her Facebook comment was made in her capacity as a citizen, in which case the speech would be protected in the first stage of the analysis.

In the second stage, the court asks whether the speech was on a matter of public concern. Let's again assume that Knox's comment meets the test. If that's the case, the court turns to the final stage of its analysis and asks whether the employer's interest in maintaing an efficient and effective workplace outweighs the employee's interest in free speech.

Here's where Knox's claim would likely fail. The school district would be able to show both actual disruption and the potential for disruption. The protests and complaints received by parents shows that the employee's speech was disruptive to the district's operations.

The school district also would be able to show that there was a potential disruption in the form of loss of trust and respect by parents and students. To the extent that Knox's comments about the "sinful" nature of homosexuality contradicts the district's stated values of tolerance and diversity and that contradiction potentially could result in the inability of Knox to effectively connect with students and parents, the district would be able to discipline her for her speech without violating the free speech protections of the First Amendment.

Some employees take their work more seriously than others. Take Grant Hill, for example. Hill worked as a cycling instructor at Life Time Fitness in Rockville, Maryland, one day a week, according to the Washington Post's Capital Business Blog. On November 6, after arriving at the gym, Hill saw a coworker preparing to eat lunch. Although a workday meal is not usually a particularly interesting event, Hill was particularly interested in this lunch because it came from fast-food restaurant, McDonald's.

Apparently perturbed by his co-worker's lunch choice, Hill tweeted a picture of the McDonald's to-go bag as it sat on his co-worker's desk. The tweet stated:

A McDonald's bag sits on an employees desk @lifetimefitness aka "the healthy way of life company." Ah the irony.

As you may have guessed, Hill's employer was about as thrilled with Hill's tweet as Hill was with his coworker's Big Mac. According to the Capital Business blog, management demanded that the tweet be deleted but Hill refused unless he was permitted to write an article about the health risks of fast food to be published in Life Time's wisely distributed magazine. Hill was fired a few weeks later.

A spokesperson for Life Time said that the termination was not a result of the tweet but for Hill's second job, which Life Time deemed to be a competing personal-fitness business.

Hill stands by his tweet and is quoted as saying that he "directed at [his employer] hoping to engage in dialogue socially." For my two cents, tweeting a sarcasm-laden comment doesn't seem like the most "social" way to go about starting a dialogue of any kind. Instead, it seems to be more like a stab in the back, or a nasty quip said just loud enough to be heard by the intended recipient.

On the other hand, because the tweet relates to the "mission" of Hill's employer, it seems like the kind of commentary that the NLRB would argue constitutes protected activity under the National Labor Relations Act.

What happens to an employer's social-media accounts when the employee tasked with managing those accounts leaves the organization? I asked that question in a recent post, Who Owns Your Company's Twitter Account? A recent case from the Southern District of New York, Ardis Health, LLC v. Nankivell, offers an answer.

Ardis, the employer, moved for a preliminary injunction against its former employee, Ashleigh Nankivell, seeking to require her to, among other things, return its log-in information for various websites. Nankivell had been employed as the company's Video and Social Media Producer, in which she was responsible for maintaining the company's websites, blogs, and social-media pages for marketing purposes. She was given and had sole control of all passwords and related information necessary to access the sites.

After her employment ended, Ardis demanded that Nankivell return the access information--since her departure, the employer had been unable to access the sites or update content.

The court found that the employer would be irreparably harmed if the access information was not returned prior to a final trial on the merits because, without that information, the employer precluded from continuously updating its profiles and pages and from reacting to online trends.

The employee argued that there was no irreparable harm because the pages had not been updated for two years prior to her termination. The Court rejected this argument, citing the fact that it was the defendant's responsibility to update the sites, so she could not use her own failure to perform her duties as a defense.

And, even if that was not the case, the Court continued, new opportunities may arise the employer would not be able to take advantage of due to the employee's withholding of the access information.

So, in short, in this case at least, the answer to the question, Who Owns the Company's Social Media Information?, is The Company.

Ardis Health, LLC v. Nankivell, 11 Civ. 50134 (NRB) (S.D.N.Y. Oct. 19, 2011).

Many employers use social media for a variety of purposes. I am currently in Las Vegas to speak at the Advanced Employment Issues Symposium, where there will be several sessions on how best utilize social media for recruiting and hiring, employee engagement, and as a corporate-communications tool. I'm looking forward to hear about the ways that employers can take advantage of sites like Twitter and LinkedIn for all of these purposes.

But what happens after you put these tools to work? In other words, if you hire a social-media specialist to use Twitter to promote your business or even if you authorize an employee to use Twitter as part of his or her job (i.e., to recruit employees), what happens when that employee leaves for a new employer? Do you own the Twitter account?

I'd bet that many of us would guess that you would--that you (the employer) authorized the employee to start the account on the organization's behalf and that you would expect the employee to return the account, so to speak, at the end of his employment.

And that's all fine and well, provided that the employee agrees. But what if he or she does not agree? What if the employee decides that he wants to take the account with him to his next job. I mean, gosh, he put so much work into building up all of those followers, right? At least that's what the employee will surely say!

According to FindLaw, that seems to be the issue in the case of one employer, PhoneDog, who has filed suit against its former employee, Noah Kravitz. During his employment with PhoneDog, Kravitz tweeted under the handle @PhoneDog_Noah. When he quit, he changed the account name to @noahkravitz and has refused the company's requests for him to relinquish his use of the account. In its suit, PhoneDog alleges that Kravitz's use of the account consitutes misappropriation of trade secrets, interference with economic advantage, and conversion (i.e., theft).

Whether the claims will succeed is almost a side issue--there are much more immediate considerations at play. For example, even if the company were to win at trial, any benefit of the account would, by that point, likely be lost. All of the followers that PhoneDog did have would either have stopped following the account or no longer be interested in the PhoneDog perspective--by that point, they'd be more interested in the Noah Kravitz version. And, in the meantime, PhoneDog would have already had to start all over trying to build a new following.

For any company considering implementing social media as a communications, PR, or HR tool, this case should serve as an excellent reminder of the importance of planning for the worst. Consider now who owns what in the social-media realm and then put it in writing and communicate it with any employee who is granted access to the social-media accounts. Letting the ownership of social-media accounts wait until a crisis arises is never a good idea.

Facebook has landed another public school teacher in hot water. An administrative law judge in New Jersey has recommended that a school district terminate Jennifer O'Brien for her Facebook posts, in which she referred to her first-grade students in Patterson, New Jersey as "future criminals" and analogizing her job to being a "warden" in a Facebook post.

According to the NSBA, parents initially discovered and reported the teacher's Facebook musings.
In the words of the ALJ, the teacher "demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone." In the ALJ's view, the district's need to operate efficiently trumped any free speech rights because "thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools."

The lesson here is clear- exercise good judgment when using social media and remember, the world is watching!

Now-former NPR host, Lisa Simeone, was terminated from her contract when she was seen at an Occupy D.C. protest. A conservative website questioned her presence, claiming that it violated NPR's ethics policy, reports the Baltimore Sun.

So, what's the problem? Image. NPR is partially subsidized with taxpayer funds and works hard to ensure that it is seen as a neutral news source. Simeone, by virtue of being a host on public radio, is a public face, or voice as it were, of NPR. An agency whose image is based on political neutrality. An agent of the agency who publicly takes a political position. It doesn't work.

Or at least that's what NPR would likely argue. Which is why Ms. Simeone is no longer a freelancer for NPR.

In April 2011, a jury awarded Shana Maron $86,000, after finding that she was paid less than her former male colleagues in Virginia Tech's Office of University Development. In June, U.S. District Court Judge James Turk threw out the verdict and ordered a new trial, reports Roanoke.com.

The plaintiff was not happy about the judge's decision. So she did exactly what we would expect--she posted about it on Facebook, writing, "What's the law really worth when you can make it up as you go?" and "Turk is a Turkey." She later added, "The jury spoke, Tech lost, Turk is a biased bully, and I will still prevail."

Sure enough, one of Maron's Facebook friends reported the posts to Virginia Tech's lawyers. And, sure enough, they sought a court order seeking to compel Maron to turn over all of her Facebook postings about the case.

Why would they want to know what the plaintiff had to say during the first trial? Maybe because they thought there could be evidence that could serve as the basis for a mistrial. Or, more likely, maybe the hope to find comments she made that could be used to impeach her during the second trial.

The judge, though, didn't buy it. He denied Virginia Tech's motion on October 20, 2011, ruling that the Facebook posts (assuming they do exist), were not material to Maron's Equal Pay Act claim.

So, what do we learn from this case? First, for individuals who are parties to a suit (and their counsel), silence is golden. And silence includes Facebook silence. I've had several interesting discussions with other attorneys about whether lawyers should monitor their clients' online activities during litigation. And several plaintiffs' lawyers I know have amended their retention agreements to reflect a promise by their clients that they will refrain from posting anything about the case in any online forum, including Facebook. Second, employers' lawyers should consider whether they should monitor plaintiffs' online activities throughout litigation.

Ashley Payne resigned from her job as a teacher at Apalachee High School after the school received a complaint about pictures Payne had posted on her Facebook page. The pictures were a long way away from the type of risqué photographs we normally expect to see in a typical "Facebook firing."

The picture showed Payne smiling while holding what appear to be two glasses and a bottle--which, it was presumed, were alcoholic drinks. Payne was on a trip in Europe when the photo was taken.

Payne claims that she was pressured by school administrators to resign after they received an email complaint about the picture. It's unclear from the news reports whether the complaint was made by a parent or whether Payne's Facebook profile was public at the time of the complaint.

Payne subsequently filed suit, claiming that her due-process rights were denied because she was not given an opportunity for a hearing. But her case sat on the docket for nearly two years before the court ruled on her motion. The motion was denied earlier this month, which came as no surprise to Payne or her lawyer. Due to the length of the delay, it was highly unlikely that a court would order that she be reinstated. Payne filed an amended complaint on October 10, in which she seeks monetary damages.

The lesson to be learned for employers from this case is a familiar one--plan ahead for social-media snafus. And the best way to plan ahead is through education. These days, I'm doing quite a bit of training for managers on the potential hazards of social media. These trainings are an incredible way to get managers thinking about what does and does not really matter when it comes to what employees are doing online--and about the potential consequences of what they do online.

Social-media issues faced by employers continue to change and develop. Your social-media policy (or guidelines, if you prefer), should do the same.  An updated social-media policy is provided via the link below for your reference as a starting point for drafting your own workplace policy addressing employees' social-media use.  There are, of course, any number of variations that may be appropriate for your specific workplace.  The sample is intended to be just that--a sample, to give you a running start when you've got your key stakeholders seated at the table ready to discuss the approach that is appropriate for your particular workforce.  You should consult with qualified employment-law counsel before implementing any new policy to ensure legal compliance.
Sample Social Media Policy YCST.pdf

Have labor unions outlived their usefulness? Yes, said nearly half of the Americans polled, according to a recent Rasmussen survey. With only 48% of U.S. workers believing that unions still serve a worthwhile purpose, there is plenty of reasons for the labor movement to market their message.  And social media has been a useful tool for doing so.  For example, see this post about the 14 Ways Unions Are Using Twitter and this AFL-CIO post from 2009 for examples of Social Media Use by Unions for some insight about labor’s efforts in the online space.

But there may be downsides to social media for unions, too.  In this Huffington Post article, Tom Hayes asks, Will Facebook Replace Labor Unions?  Hayes’ basic premise is that, with the rise of online social networking sites, like Facebook, workers don’t need a union to organize.  Instead, employees can communicate outside of the workplace, even if they work different facilities, to discuss the problems they face inside the workplace.

And that, of course, is where the National Labor Relations Act comes into play.  Employees who engage in concerted activity are protected by the NLRA against retaliation and discrimination by their employers in response to their conduct.  As the NLRB has made very clear, these protections apply online just as they do in the workplace.  So, while unions may have reason to worry about their perceived usefulness, employers should be worried, as well, if they are not familiar with how the NLRA limits the ways they can respond to an employee’s Facebook post. 

To learn more about the interplay between the NLRA and social-media

Employees’ Posts Were Protected Activity, Says ALJ

NLRB and Facebook Firings: Employer's Worst-Case Scenario

The NLRB Approves Facebook Firings

Another Day, Another NLRB Complaint Over Facebook Firing

NLRB OKs Employee Termination for Twitter Posts

Social-media policies are the hot topic in the world of employment law. Questions about the advisability of social-media policies and the legal limits on what these policies may and may not regulate continue to abound. Employers who may be considering whether they need or want a social-media policy usually appreciate helpful resources on the subject. One particularly excellent resource on social-media policies is the Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees, published last year by the Judicial Conference Committee on Codes of Conduct.

The Packet includes a brief but substantive overview of some of the ethical issues arising from the use of social media by court employees, as well as a primer for those who looking for a fundamental understanding of the tools before moving to regulate those tools.

The Packet also includes sample language for use when drafting a social-media policy for judicial employees, as well as where to find such policies already in place.

Like the rules of professional conduct, which apply to lawyers' online activities, the Code of Conduct for Judicial Employees applies to all online activities, including social medial. As explained in the Resource:

The advent of social media does not broaden ethical restrictions; rather, the existing Code extends to the use of social media.

Although directed to judicial employees, the Resource contains valuable lessons for all legal professionals, as well as for employers generally.

Social Media Policies for Judicial Employees

This is an edited version of a post originally posted on the Going Paperless Blog, where I write about technology issues affecting legal professionals. I'm reposting it here because it contains information many employers may find valuable.

See also
Our three-part series on the legal limits imposed by the First Amendment in the context of social-media policies in the public-employment context. In Part 1, we discussed the general application of the First Amendment to workplace policies and rules. In Part 2, we focused on the 3-part analysis applicable to limits on speech imposed on public employees. And in Part 3, we discussed some of the cases upholding discipline based on employees' off-duty speech, similar to the speech social-media policies attempt to address.

Vetting job candidates online, particularly with social-networking sites like Facebook, continues to be the hot topic in the world of employment law. I recently wrote about a new SHRM survey, which reports that fewer employers are checking Facebook before hiring employees. And now it seems that Congress is concerned about the potential effects of social-media background checks, reports Kashmir Hill at Forbes. Jon Hyman’s comments about this news from our Nation’s Capital mirror my own, so I’ll point you towards his blog instead of saying the same thing twice.

Instead, what I will point out as something new is Nielsen’s Social Media Report, recently released for Q3 2011. The report is full of interesting statistics regarding our use of social media. Here are just a few:

• Americans spend more time on Facebook than on any other U.S. website.
• Nearly 4 in 5 active Internet users visit social networks and blogs
• Close to 40% of social-media users access social-media content from their mobile phone.

What I also found particularly interesting was the information about who is using social media. According to the survey, females and visit more often than males. The highest concentration of visitors are those in the 18-34-years-old range. Asian/Pacific Islander was the Race/Ethnicity with the most users.

I will be interested to see whether these statistics have any effect on those who argue that social-media hiring efforts do or may have a discriminatory impact on candidates.