1 LE.201 Employee Privacy Rights in the Electronic/Social Media Age INSTRUCTORS Tony Puckett Dara Wanzer
2 Welcome to the Electronic Age The Internet age has resulted in a host of new types of communications, devices and methods New forms of communications: blogs, texting, microblogs (i.e., Twitter), social networking sites, digital cameras, YouTube, cell phones with cameras and videos, GPS tracking on vehicles and phones The increase in the popularity of social networking is on the constant rise Facebook alone currently boasts a membership of 250,000,000
3 Welcome to the Electronic Age Cont. Ironically, employees claim to want privacy while posting more and more information about every aspect of their lives on the Internet The relative freedom afforded by social networking services has caused concern regarding the potential of its misuse by individual patrons
4 Welcome to the Electronic Age Cont. Impersonal communication leads people to say or do things they wouldn t necessarily say or do in person
5 Issues Illuminated by the Electronic Age Enforcement of workplace policies Workplace productivity Confidentiality of information Injury to business reputation Unlike phone calls or even letters, digital information lasts forever and can show up as evidence years later
6 Along with the Benefits of New Technology Comes Certain Risks and Liabilities Can you guarantee that your employees aren t using their computers to access and distribute inappropriate material to other employees, or worse, to your customers or competitors? Have you protected confidential company and employee information? Have you protected yourself against unauthorized file sharing or downloading?
7 Along with the Benefits of New Technology Comes Unexpected Risks and Liabilities How do you control work time spent surfing the Internet, texting, blogging, etc? Do you have policies in place to legally monitor employee activity and discipline accordingly?
8 Rule to Remember Electronic behavior is a means, not an end if behavior is prohibited, it is prohibited via computer as well And its corollary Thoughtful, well-communicated policies will set employee expectations regarding all types of workplace behavior
9 Basic Legal Analysis Balance Reasonable expectation of privacy With Legitimate business purpose and scope
10 A Variety of Laws and Legal Authorities Govern Workplace Monitoring Programs The Constitution The Federal Electronic Communications Privacy Act Title II, The Stored Communications Act The National Labor Relations Act Case law Oklahoma laws protecting invasions of privacy
11 Recent Case Law: Workplace Hidden Camera is Not an Invasion of Employees Privacy Rights Two plaintiffs in the suit were clerical employees at a private, non-profit residential facility for abused and neglected children Hidden video equipment set up in shared office in effort to catch individual who had been viewing porn in the wee hours Plaintiffs sued for invasion of privacy and intentional and negligent infliction of emotional distress Employees have a reasonable expectation of privacy in the workplace, but that right has limits Court concluded that equipment was installed for legitimate business concerns
12 Recent Case Law: Employee s demotion over blog comments is not a 1 st Amendment Violation Federal appeals court ruled that a Washington state teacher s blog attacking co-workers, the union and the school district was not protected speech Court concluded that teacher s speech was not a matter of "public concern" but rather was "racist, sexist, and bordered on vulgar," and, in part, "salacious" and "mean spirited"
13 Electronic Communications Privacy Act of 1986 Title I of the ECPA protects wire, oral, and electronic communications while in transit. Title II of the ECPA, the Stored Communications Act (SCA) protects communication held in electronic storage, most notably messages stored on computers.
14 ECPA: General Provisions Protects wire, oral, and electronic communications from interception, access, and disclosure. May not: Intercept a communication (e.g., tap a phone) Disclose or use the contents of an illegally intercepted communication Use an electronic, mechanical, or other device to intercept oral communications (e.g., hide a tape recorder) But, there are important exceptions: Employee consent, express or implied Business extension or business use Provider exception Oklahoma law allows one party to a telephone conversation to record the conversation
15 Deciding Whether to Monitor According to a June 2009 study of 220 decisionmakers at companies with over 1000 employees 43% reported investigating an based leak in the past twelve months 33% of employers employ staff whose exclusive job is to monitor the content of outbound (up from 24% in 2008) 31% reported firing workers for misuse of . 8% reported terminating an employees for use of social media (up from 4% in 2008)
16 Reasons for Monitoring Quality and reputation control Risk of defamation or invasion of privacy claims by other employees or other outside parties Within scope of employment Angry employee sending confidential information to customer criticizing competitor s product Misappropriation of trade secrets or confidential information
17 Reasons for Monitoring Cont. Copyright and trademark infringement and unauthorized downloading Peer to peer file sharing sites Exceeding licensed use Security issues and virus threats Discrimination/harassment Porn, stalking, hostile or sexually offensive messages
18 Reasons for Monitoring Cont. Alert employer to suspicious activity Intern at bank who missed work due to family emergency appeared on Facebook in Halloween costume, drinking a beer; spotted by co-worker Personal photos discovered on company cell phone GPS chip in work-issued cell phone revealed falsified time Undermine public confidence in, and reputation of, employer Two students created a false MySpace page for a high school assistant principal filled with lewd, defamatory and obscene comments, pictures and graphics Microsoft fired an employee who published photos of Apple computers being loaded into a Microsoft research facility
19 Computer Use and Monitoring Policy Adopt polices that are transparent and evenly enforced Employees feel less violated when they know what will be happening, and continuation of employment with knowledge of policy = implied consent Avoid selective enforcement of such a policy
20 Computer Use and Monitoring Policy Cont. Use of company electronics limited to legitimate business purposes and reasonable and lawful personal use May be monitored, searched, recorded and stored without notice Information limited to those with business need to know Do not exceed scope of business necessity Abuse may lead to discipline up-to and including termination Signed acknowledgement and acceptance for personnel file Periodic reminders Lock out terminated employees
21 Computer Use and Monitoring Policy Cont. A policy addressing workplace monitoring should establish that the employer owns the computers or other equipment, and expressly inform employees that they will have no expectation of privacy in communications sent with the equipment, even if the employee marks a file as private or attaches a password to a computer file Do not expect privacy in company communications Use of the computer system = consent Passwords are for external security only, not for the privacy of the user, and must be disclosed upon request
22 Discipline Policy All employees are at will and may be terminated at any time, for any reason, without notice Progressive discipline is solely at the discretion of the employer May monitor the Internet, including blogs and social networking sites, as well as company electronic property Use of or the Internet to engage in behavior that is otherwise grounds for discipline
23 Discipline Policy Cont. Grounds for termination include: Discrimination or harassment Transfer of sexually explicit content Misuse/abuse of company resources Gross lack of productivity Illegal or unauthorized downloading Running a side business from your work computer Disclosure of confidential or proprietary information Actions tending to cause harm to the company s reputation or injury to public confidence
24 Confidentiality Agreements Best to sign when hired All information generated by the company is company property Employee will not disclose any information about the company that is not publicly available without written consent from specified position Also list specifics particular to company: trade secrets, customer lists and requirements, pricing, technical data, plans and strategies, personnel information, etc.
25 Confidentiality Agreements Cont. Logos and trademarks Particularly important for publicly-traded companies to protect against insider trading Survives termination of employment relationship Must return all information May include non-disparagement provisions, waiving right to speak Consent to suit in jurisdiction chosen by employer
26 Policy: Document Retention and Destruction Must have system and policies in place for storage, backup, and retrieval of electronic documents, including s Federal Rules now require production of all electronic evidence, unless cost is prohibitive Plan ahead consult with your computer personnel Do not destroy documents related to pending or known claims or litigation Anything can be retrieved if you re willing to pay enough $$$
27 NLRA: Section 7 Issues Employee Internet speech that focuses on wages, hours, working conditions, and other matters of concern common to employees could be considered protected activity under the National Labor Relations Act Section 7 of the NLRA makes it unlawful to interfere with employee concerted activity in pursuit of mutual aid or protection
28 NLRA: Section 7 Issues Cont. Section 7 has been applied to an employee who sent an that the company s change in its vacation policy was not good for employees Section 7 rights apply to both unionized and non-unionized workplaces Speech that is otherwise protected can lose the protection if it is so violent or of such serious character as to render the employee unfit for further service.
29 Use of Internet in Pre- Employment Screening: Due Diligence or Dangerous? 77% of employers use the Internet as part of their background checking process Google, YouTube, Facebook, MySpace
30 Use of Internet in Hiring Process: Pros It's a critical decision You may gain invaluable information about character It's far easier to avoid a bad hire than to get rid of a bad hire "Failure to hire" suits are much less likely than suits over termination It may help to avoid a negligent hiring claim
31 Use of Internet in Hiring Process: Cons Sites are rife with information impermissible to consider Possession of information may taint an otherwise well-based decision There is the possibility of making a decision based on incorrect information You may increase the likelihood of litigation You may generate bad publicity
32 Employers Must Bear in Mind the Following: Special rules for consumer reporting agencies Define who is an applicant when recruiting online, particularly if you file an EEO-1 Be mindful of potential discrimination claims, both direct and disparate impact If you engage a third party to conduct the searches, you must comply with the Fair Credit Reporting Act