Internet & Technology Usage in the Networked Workplace: Legal Implications

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1 Internet & Technology Usage in the Networked Workplace: Legal Implications EDDY D. VENTOSE PROFESSOR OF LAW UNIVERSITY OF THE WEST INDIES, CAVE HILL CAMPUS

2 The Employment Process 2 Recruitment Process Onboarding and Employment Offboarding and termination

3 Legal Issues 3 Discrimination Negligent Hiring Duty to Monitor Internet Activity Breach of Privacy Termination of Employment Social Media Policies

4 4

5 The Recruitment Process 5 Privacy difficult to sustain because the information is disclosed voluntarily and available in the public domain Questions: Is the information accurate? Did the applicant post the information?

6 The Recruitment Process 6 What about the effect of this information on discrimination laws? Employer might get information about applicant s: disability, religion, age, national origin, race, sexual preference, or membership or other protected class. Job applicants are now aware of this

7 The Recruitment Process 7 Employers routinely Google their prospective employees Applicants might lose employment opportunities based on negative online information Employers usually conduct online searches as part of their preemployment screening processes

8 Microsoft Study Online Reputation in a Connected World The recruiters and HR professionals surveyed are not only checking online sources to learn about potential candidates, but they also report that their companies have made online screening a formal requirement of the hiring process.

9 2010 Microsoft Study Online Reputation in a Connected World 9 Of U.S. recruiters and HR professionals surveyed, 70% say they have rejected candidates based on information they found online. Though not as frequently, respondents from the U.K. and Germany report the same trend.

10 2010 Microsoft Study Online Reputation in a Connected World 10 Recruiters and HR professionals surveyed report being very or somewhat concerned about the authenticity of the content they find In all countries, recruiters and HR professionals say they believe the use of online reputational information will significantly increase over the next five years

11 Discrimination 11

12 Discrimination 12 There is no constitutional right to freedom from discrimination in the private sector The constitutional right exists to prevent discrimination against the State or a public authority In the absence of any specific statutory basis which prevents such discrimination, it seemingly is lawful

13 Discrimination 13 Trinidad and Tobago Equal Opportunity Act 2000 Discrimination against applicants 8. An employer or a prospective employer shall not discriminate against a person (a) in the arrangements he makes for the purpose of determining who should be offered employment; (b) in the terms or conditions on which employment is offered; or (c) by refusing or deliberately omitting to offer employment.

14 Discrimination 14 Discrimination against employees 9. An employer shall not discriminate against a person employed by him (a) in the terms or conditions of employment that the employer affords the person; (b) in the way the employer affords the person access to opportunities for promotion, transfer or training or to any other benefit, facility or service associated with employment, or by refusing or deliberately omitting to afford the person access to them; or (c) by dismissing the person or subjecting the person to any other detriment.

15 15 Discrimination Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin

16 Discrimination 16 Gaskell v. Univ. of Kentucky (2010) G was rejected for employment as a scientist An employee circulated an to members of hiring Committee This detailed the G s religious views It was visible on G s personal website The Court held the G raised a triable issue of fact as to whether G s religious beliefs were a motivating factor in the University s decision not to hire him.

17 Discrimination 17 Point to Note Accessing impermissible information may infer improper motive even if it is not actually used used in making the employment decision.

18 Negligent Hiring 18

19 Negligent Hiring 19 An employer can be liable for negligent hiring if it plac[es] a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others. Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983).

20 Negligent Hiring 20 Employers have a duty to exercise reasonable care in view of all the circumstances in hiring individuals who, because of the employment, may pose a threat of injury to members of the public. Ponticas, 331 N.W.2d at 911

21 Negligent Hiring 21 Burnett v. C.B.A. Sec. Serv., Inc. (1991) ( The tort of negligent hiring imposes a general duty on the employer to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position. ).

22 Duty to Monitor Internet Activity 22

23 Duty to Monitor Internet 23 Activity Does the employer have a duty to monitor employee s internet activity? In Doe v. XYC Corporation A negligence action was started by a mother against her husband s employer The action was brought on behalf of her 10-year old daughter. The husband used the workplace computer to send nude photographs of the girl to pornographic websites.

24 Duty to Monitor Internet 24 Activity The employer knew that the husband improperly used his company computer to view pornographic websites. The husband was asked by the employer to stop visiting inappropriate websites. The husband failed to do so, and notwithstanding other complaints by workers, the employer took no further action against the employee.

25 Duty to Monitor Internet 25 Activity The New Jersey court allowed the mother s claim for damages to proceed. The court noted that the employer was aware that the husband used the company computer to access pornographic websites Therefore, it was under a legal duty to investigate his activities to determine if they constituted illegal acts, such as viewing child pornography.

26 Duty to Monitor Internet 26 Activity Upon being put on notice of the employee s improper behavior, the employer had a duty to: Investigate his activities; Take prompt action to stop any unauthorized acts; Report it to the proper authorities; No privacy interest of the employee stood in the way of the employer s duty to investigate and take action.

27 Duty to Monitor Internet 27 Activity Pietrylo v. Hillstone Rest. Grp., (2009) Restaurant managers pressured an employee into providing her MySpace password This enabled them to access a private, invitation-only chat room They continued to access the chat room after realizing the employee had reservations about providing her password

28 Duty to Monitor Internet 28 Activity The employee felt that something bad might happen to her if she did not provide access The court held that this was not proper authorization Consequently, it concluded that the restaurant managers violated the SCA

29 Duty to Monitor Internet 29 Activity Palleschi v. Cassano, (2010) A fire department fired a lieutenant for a posting on Facebook He posted a photo of a computer screen containing confidential information about a 911 caller s complaint This contained the caller s name, address and phone number Dismissal lawful (fundamental term)

30 Duty to Monitor Internet Activity 30 City of San Diego v. Roe (2004) Plantiff was dismissed as a police officer Caught selling online videos with him stripping out of a police uniform and masturbating This took place while the plaintiff was off-duty They related to his employment because he depicted himself as a police officer in his uniform These off-duty actions exploited the employer s image and compromised the employer s legitimate and substantial interests.

31 Breach of Privacy 31

32 Breach of Privacy 32 There is no constitutional right to privacy in the private sector. The constitutional right exists to prevent the State or a public authority from invading the privacy of citizens In the absence of any specific statutory basis which prevents such breaches of privacy, it seemingly is lawful in the private sector

33 Breach of Privacy 33 To reduce the likelihood of liability for invasion of privacy, the social media policy should state that computer access may be monitored, searched, or blocked The policy should prohibit the disclosure of confidential information regarding the company, its customers, and its employees, as well as the use of company logos and trademarks without written consent.

34 Breach of Privacy 34 Ehling v. Monmouth-Ocean Hosp. Service Corp., (2012) Plaintiff (P) alleged employer gained access to her Facebook account This was done when a supervisor asked a coworker who was Facebook friends with plaintiff to access the account on a work computer in the supervisor s presence

35 Breach of Privacy 35 P argued that she had a reasonable expectation of privacy in her Facebook posting P claimed that her posts were limited to her friends That while some friends were co-workers, none were management employees The court held that, given the open-ended nature of the case law, the plaintiff had stated a plausible claim for invasion of privacy.

36 Termination of Employment 36

37 Termination of Employment 37 There may be termination by performance, by expiry of a fixed term, by agreement of the parties or by breach. An employer has the right to dismiss an employee for just cause. The Common Law on summary and constructive dismissal also applies.

38 Termination of Employment 38 There are circumstances in which a dismissal arising from an employee s use of social media sites can be lawful. However, an employee who has one or more years continuous service with an employer has a statutory right not to be unfairly dismissed, where such legislation exists.

39 Termination of Employment 39 There is no case law in the Commonwealth Caribbean on whether a dismissal arising from an employee s use of social media sites is likely to be fair This will change given the increasing use by employees of social media sites to comment on and address work-related issues.

40 Termination of Employment 40 For an employer s dismissal of an employee who has posted disparaging comments about his or her colleagues (including superiors) to be considered fair, the employer would have to be able to show that the decision to dismiss was a reasonable response in the circumstances.

41 Termination of Employment 41 Depending on the seriousness of the employee s misconduct, a lesser sanction than dismissal may be appropriate, such as a formal warning. In determining whether or not the dismissal was fair, a court would most likely take into account the following factors:

42 Termination of Employment 42 The nature of the information posted by the employee (e.g., the confidentiality of the information); The actual or potential harm to the business; and Whether any such conduct has been clearly prohibited by the employee s contract or a company policy (e.g., a breach of the company s anti-harassment policy).

43 Social Media Policy Template 43 Policy statement Who is covered by the policy The scope of the policy Responsibility for implementation of the policy Using social media sites in employer s name Using work related social media

44 Social Media Policy Template 44 Personal use of social media sites Rules for use of social media Monitoring use of social media websites Monitoring and reviewing existing social medial policy

45 Acknowledgments 45 Template Social Media Policy (Beachcroft) Common law invasion of Privacy Claims in Social Media (S. Taylor) Social Media and Employment Law (Morgan and Davis) Legal Implication of Employee Social Media Use (S. Dennis) National labour law profile: Trinidad and Tobago (A. Rahim) Negligent Hiring and the Information Age (K. Peebles)