R U Looking @ My Cookies? Sexual Harassment In The Age Of Technology

R U Looking @ My Cookies? Sexual Harassment In The Age Of Technology

R U LOOKING @ MY COOKIES? SEXUAL HARASSMENT IN THE AGE OF TECHNOLOGY MODERATOR: Mercedes Colwin, Esq. - Managing Partner - New York Office, Gordon & Rees LLP PANELISTS: Adeola Adele - Senior Vice President, EPL Product Leader, Marsh, Inc. Sarah K. Goldstein, Esq. - Director of Employment Practices, Los Angeles Office, Kaufman Dolowich & Voluck LLP Edward R. Quinn, Jr. - Chief Executive Officer, Rockville Quinn Management Martin Schnabel - Associate Vice President, Freedom Specialty Insurance Company

Workplace Surveillance

Litigation Today: The Cyber World and Employment Claims Collide Road Map: The What and How of Information Available to Employers in Today s Cyber World Employers Potential Liability: What is Legal and What is Not Litigation: Ethics and E-Discovery Insurance Coverage for Social Media Claims How Today s Employer Can Avoid Litigation

Information Employers Can Discover Employers Themselves Can Obtain Social Intelligence On Employees and Prospective Employees Facebook A Look Into Prospective Employee s Social Life; Facebook Groups, i.e., racist remarks; LinkedIn Employment History Google Information From Past 7 Years Craigslist Sordid Listings, i.e, oxycontin case. Instagram Naked photo sharing Tumblr, user groups, e-commerce sites, bulletin boards Blogs; comments on postings. Twitter Online comments and locations Vine Posts 6 second videos

How Employers Can Discover Cyber Information Employers Can Use an Investigator to Obtain Information Investigator s Use of Spyware Software based Domestic vs. Commercial Spyware» i.e., investigation of internet footprint; email tracing Hardware based Actual devices placed on computer» i.e., Flash drives pull deleted data, search chat logs, obtain emails, texts and internet browsing history

How Employers Can Discover Cyber Information Types of Spyware Used by Investigators Internet URL loggers track websites Screen recorders Take snapshot images of screen and store or transmit them Chat loggers and email recorders make text copy of all incoming and outgoing chat and email sessions Key loggers record key strokes Password recorders track typed passwords

Obtaining Cyber Information: What is Legal and What is Illegal Can you spy on your employees?? Employer Phones Generally, yes Personal Phones Generally, no Employer Computers Generally, yes Personal Accounts Depends on whether use is at work and on employer s equipment Wifi-Warnings to employees

Social Media: What is Legal and What is Illegal Types of Social Media Claims: Invasion of Privacy Harassment Discrimination Libel Retaliation

Social Media Legislation

Social Media: What is Legal and What is Illegal Invasion of Privacy California Law made it illegal for employers to request that employees or applicants disclose social media log in information, access or content Reasonable Belief exception to investigations Maryland Law made it illegal to ask current and prospective employees for their user names and passwords to social media websites 2012 14 States introduced legislation 2013 Thus far, 7 States enacted legislation

Social Media: What is Legal and What is Illegal Invasion of Privacy Continued: New York currently has pending legislation that would: Prohibit an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service Protect the privacy of social media accounts Prohibit an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices

Social Media: What is Legal and What is Illegal Invasion of Privacy Continued: New Jersey currently has legislation that : Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers. Prohibits requirement to provide information for access to account on social networking website by employer. Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

Social Media: What is Legal and What is Illegal Harassment A message posted on an employee s Facebook page or tweeted by an employee has the potential to create a harassment claim Employers should treat all conduct similarly, whether it be person to person or through some digital medium

Social Media: What is Legal and What is Illegal Libel Employees can vent about their co-workers, supervisors, and employers. Employers must protect their companies and their managers reputations from being damaged by inappropriate postings. Employers must ensure that their corporate officers and managers do not post material that could create a claim against them.

Social Media: What is Legal and What is Illegal Retaliation Employer Social Media Postings Can Result in Retaliation Claims by Employees i.e., president of a chain of bar and restaurants blogged and posted on Facebook calling an employee a "b**ch" and asking for the strength to not kill another employee after a wage and employment lawsuit was filed. Court allowed employee to amend her FLSA claim to add a claim for retaliation. i.e., employee tweeted her displeasure at off color jokes and was subsequently terminated.

Social Media: What is Legal and What is Illegal Why is social media dangerous for employers?? Encourages social interaction in casual sphere between supervisors and subordinates.

Facebook and Your Supervisor

Social Media: What is Legal and What is Illegal Recent Court Decisions Vance v. Ball State University The Supreme Court held that an individual or employee is deemed a supervisor only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits Cherry v. Shaw Coastal, Inc. Employer vicariously liable for harassment by supervisor consisting of sexually explicit text messages sent to plaintiff s personal cell phone

Social Media: What is Legal and What is Illegal Recent Court Decisions continued Hollis v. Town of Mt. Vernon Employer s motion for summary judgment denied with regard to sexual harassment claim arising out of sexually charged texts and emails Court noted that coworker sent plaintiff text messages and emails to her personal cell phone and email account, while she was on duty, thereby finding sufficient grounds to warrant the conclusion that the texts and emails affected the terms and conditions of plaintiff s employment Garvin v. Sioxland Mental Health Services Court was unfazed by the fact that some of the alleged sexually harassing communications at issue occurred over media that were not used for work purposes (i.e., Facebook), or the fact that some of the communications did not occur during business hours

Litigating in Today s Cyber World Ethical Considerations Hostile use of friend request puts New Jersey lawyers in ethics trouble San Diego County Bar prohibits misleading a party into online friendships Private Facebook pages are generally off limits

Litigating in Today s Cyber World Electronic Discovery Parameters: NYSBA allows a lawyer who represents a client and who has access to social media used by another party to access and review that party s social media for potential impeachment material Lawyers can not communicate with represented parties through social media without consent of the other lawyer or by court order

Litigating in Today s Cyber World Electronic Discovery Tips: Instruct client to enhance privacy settings Conduct internet searches on principal target, key witnesses, expert witnesses, your client Refrain from negative blogs about Judges that may preside over your case Circumvent court-imposed restrictions on voir dire through social media and internet databases

Employment Practices Liability Insurance and Social Media Most EPLI Policies require that an alleged wrongful employment act to occur within the insured s capacity as such Questions may arise as to whether the employee was acting is his or her capacity as an insured employee Was the conduct within the course and scope of employment The answer is often very fact specific Coverage Some insurers have attempted to exclude coverage Some have attempted to impose a sublimit EPL Claims arising from the use of social media should be evaluated for coverage in the same manner as other EPL claims

Cyber Liability: Insurance Coverage How Employers Can Protect Themselves: General Liability Policy Typically Does not Cover Social Media Claims Professional, Communications, Data Privacy & Media Liability policies, in many forms, are available as endorsements or stand alone products and will compliment your enterprise wide risk management program

Risk Management: How to Avoid Social Media Claims Employers Options: Monitor employees computer and internet usage to extent permitted by law Electronic Communications Privacy Act of 1986 Consent Forms Key logging programs Recording Conversations Audio and Video Unilateral Consent in New York Employer Policies Internet usage and access Social Media Training

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