EMPLOYEE PRIVACY IN THE DIGITAL WORKPLACE Presented by Risa B. Boerner, Scott M. Waldman and Brent A. Cossrow http://delvacca.acc.com
Today s Discussion Best Practices When Investigating Employees Electronic Communications The Use of Personal Devices by Employees Policies Regarding Social Media Usage The Use of Social Media in Hiring, Disciplining and Terminating Employees
Are Employees Concerned About Digital Privacy in the Workplace? In a Recent Survey of Employees, Key Findings Included: 75% of employees accept employer computer monitoring 16% of employees are glad employers monitor computer activities 9% of employees were mad about being monitored Survey Conducted by Spectrosoft, May 23, 2013
Are Employees Concerned About Digital Privacy in the Workplace? In a Recent Survey of Employees, Key Findings Included: 49% of employees said employers monitored their computer activities 69% of employers that have Internet policies that allow monitoring 15% of employers do not have Internet monitoring policies Survey Conducted by Spectrosoft, May 23, 2013
Searching Your Employee s Workplace Computer Alamar Ranch, LLC v. County of Boise No. CV-09-004-S-BLW, 2009 U.S. Dist. LEXIS 101866 (D. Idaho, Nov. 2, 2009) It is unreasonable for any employee in this technological age to believe her communications via work-issued equipment and email addresses would be confidential and not subject to monitoring.
Searching Your Employee s Workplace Computer Information Technology Policy and Notice The systems provided by Fox and Roach/Trident ( Company ) for your use, including but not limited to computer equipment, software, operating systems, storage media, network accounts, electronic mail, worldwide web browsing, file transfer protocol, and all other Internet/Intranet/Extranet-related systems (collectively, Network ), are the sole property of the Company. For security and network maintenance purposes, authorized individuals within the Company continually monitor traffic, as set forth in the Company's Audit Policy. This includes monitoring of any internet usage/access including personal or password-protected activity.
Searching Your Employee s Workplace Computer Stengart v. Loving Care Agency 201 N.J. 300, 990 A.2d 650 (2010) On the Employer s computer, the Employer found.html files of Yahoo! account emails exchanged between a former employee and her attorney regarding the former employee s lawsuit against her Employer Emphasizing importance of privacy concerns inherent in attorney-client communications, the New Jersey Supreme Court held that such communications were privileged even though on employer s computer
Searching Your Employee s Workplace Computer Holmes v. Petrovich Dev t. Co., LLC 191 Cal. App. 4 th 1047, 119 Cal Rptr. 3d 878 (Cal. App. 2011) Employer found emails exchanged between employee and her attorney regarding suit against employer exchanged using the employer s email and computer systems California appellate court held that such communications were not protected by the privilege
Searching Your Employee s Workplace Computer Stored Communications Act Federal statute prohibiting intentional, unauthorized access to private electronic communications (i.e., Facebook or Hotmail) Creates privacy expectation in private electronic communications
Searching Your Employee s Workplace Computer Pietrylo, et al. v. Hillstone Rest. Group No. 06-5754, 2009 U.S. Dist. LEXIS 88702 (D. N.J., Sept. 25, 2009) Password-protected chat forum and blog for employees Management requested access to the blog Employees terminated based on content found on blog Jury found in favor of employees and a violation of the Stored Communications Act
Searching Your Employee s Workplace Computer Pure Power Bootcamp, Inc., et. al. v. Warrior Fitness Boot Camp, LLC 759 F. Supp. 2d 417 (S.D.N.Y. 2010) Employer logged into employee s Hotmail account employee had used during work hours and on work computer Employee left username and password on the workplace computer Court found violation of the Stored Communications Act
Best Practices for Searching Your Employee s Workplace Computer Issues With Employee Policy Manuals Expectation of Privacy in Use of Computers? Searchable for Legitimate Business Reasons? No Notice Required for Searches? Define.html Files and Internet Usage? Define Computers and Systems?
Best Practices for Searching Your Employee s Workplace Computer Issues With Employee Policy Manuals Bring Your Own Device Policies: State that Personal Digital Devices Are Searchable? Restrict, Prohibit or Limit Usage of Workplace Computers for Personal Purposes?
Bring Your Own Device Policies Authorize Your Employees to Use Personal Electronic Devices in the Workplace in Order to Conduct Business for the Employer Risks to Consider: Employers Might Need to Preserve Data on Such Devices in the Event of Litigation Protecting Confidential Information
How Many of Your Company s Employees Perform Work at Home? on a personal computer? on a work-issued laptop? via remote access OWA or VPN?
Working on Personal Computers and Personal Electronic Devices Between the Employer and Employee, Who: Owns the Data on the Personal Device? Has a Right to Inspect Data on these Devices? Has an Obligation to Preserve Data on these Devices that Is Relevant to a Lawsuit?
Best Practices for Searching Your Employee s Workplace Computer If Litigation Is Likely, Consider External Computer Forensic Professionals Hired as Expert or Consultant? Licensure Requirements in Jurisdiction Witness Caliber?
Stat VOIPGet Best Practices for Searching Your Employee s Workplace Computer If Litigation Is Likely, Consider Stipulated Protective Orders for ESI Analysis That: Have Claw-Back Provisions Allow for Pre-Production Review of Hits Privacy Protections in the Exchanges
Best Practices for Searching Your Employee s Workplace Computer If, during an investigation of your former or current employee s workplace computer, you find communications between the employee and his or her attorney, what should you do?
Best Practices for Searching Your Employee s Workplace Computer You Found a Privileged Email -- Options: A.Based on Holmes v. Petrovich Dev t Co., the company can keep the communications and review them. B.Based on Stengart v. Loving Care, the company needs to stop any review of the emails and alert opposing counsel. C.Save the email for a highly satisfying impeachment of your former employee, which will have your business department high-fiving you for years to come. D.None of the above.
Best Practices for Searching Your Employee s Workplace Computer Voice Operated Internet Phone System May Record Phone Conversations Perhaps No Notice Before or During Call Conversations Occur Over Computer What Steps Should You Take?
Social Media Privacy Legislation Federal Password Protection Act of 2013 Social Networking Online Protection Act of 2012 (failed) Eleven State Statutes
Social Media Privacy Legislation State law variations: Prohibitions on seeking applicants and current employees social media log-in information Prohibitions on shoulder surfing Private right of action Exceptions for investigations Protections for inadvertent discovery of employee s login information (but not for use of that information)
Use of Social Media By Employees Sometimes employees make derogatory, off-color or discriminatory statements or simply use poor judgment in portraying themselves or fellow employees online. "Four people in a meeting, three of us hear one thing, the other person hears lalalalalalalala and forgot to take her medication." (Facebook post). Scenarios -- employee is bi-polar and on medication Manager is poster s Facebook friend and was unaware of bi-polar until he asked on Facebook what meds did she forget? Poster is a manager. Poster is making comment about manager on a private employees only blog. Manager finds out and retaliates.
Claims From a Wall Post Derrick v. Met. Gov t of Nashville, (M. D. Tenn., Dec. 29, 2005) Plaintiff tried to show discriminatory animus through manager s web page What s wrong with women these days? & Chicks seem to have more issues these days than Jet Magazine and keep up more drama than daytime TV and Jerry Springer combined.
Claims from a Wall Post Caution managers on pitfalls of becoming friends with employees on social networking sites Could become part of harassment or discrimination claim even though personal page
Employment Screening Tool? One study showed that: 70% of recruiters and hiring managers in the United States have rejected an applicant based upon information they found online 79% of hiring managers have used the Internet to better assess applicants Dynastar Employment Solutions August 2011
Employment Screening Tool? Risk May Outweigh Possible Gain Legal hazards for employers using preemployment social media screening: Federal, state and at times local anti-discrimination laws Invasion of privacy State law prohibitions on credit and criminal checks State lifestyle discrimination laws
Employment Screening Tool? Race Age Marital Status Political Views Religion
Employment Screening Tool? Employers that rely on information gathered from social media websites should be sure to obtain this information in a lawful manner Fair Credit Reporting Act Background Check Requirements Stored Communications Act
Employment Screening Tool? Consumer reporting agencies have given companies a new option in screening out job candidates based on their online presence. Social media background checks These agencies must comply with the Fair Credit Reporting Act (FCRA).
Employment Screening Tool? Use a Neutral Have an employee who is not in a decision-making role conduct the social media screening. Save copies of the information provided to you.
Disciplining Employees Based on Social Media Posts All discipline based on online content must be handled in a consistent, non-discriminatory and non-retaliatory manner.
Can Private Employers Discipline or Terminate Employees for Social Media Posts? Usual caveats apply: Can t use information that relates to employee s inclusion in a protected class as basis for termination. Can t terminate for protected activity, such as union organizing. Be cautious about acting on any statements that could relate to whistle-blowing. Be mindful of off-duty laws.
Double-Edged Sword of Social Media Guardian Civic League v. Phila. Police Dep t No. 09-CV-03148 (E.D. Pa. filed July 15, 2009) Ignoring employees social network sites can result in legal liability but improperly utilizing social network sites to make employment decisions can also lead to litigation Allegations of racially hostile work environment based upon white police officers purported operation of a racist website and posting of racially offensive comments while off and on duty Complainant alleged that supervisors ignored complaints about the website
Social Media & the NLRA Employees statutory rights have not changed since 1935 7 Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. 8(a)(1) It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in 7 of this act.
Social Media & the NLRA: What s Concerted Group action; or Individual action one person acting to: Initiate Induce Prepare for group action Bring group complaints to the employer s attention
Social Media & the NLRA: What s Protected Solicitation/distribution Wearing insignia Complaints about pay, benefits and working conditions Work stoppages Discussion of pay and benefits with peers Disclosure of information to third parties Enlisting support of third parties Promoting legislation contrary to employer s interest Filing charges/lawsuits
Social Media & the NLRA: Termination Based on Social Media Posts Firing an employee for exercising the right to discuss their wages, benefits, supervisors, and other terms and conditions of employment is unlawful. But what if the discussion occurs on Facebook or Twitter? General Counsel says that social media is the 21st century equivalent of the water cooler.
Social Media & the NLRA Policy Provision No. 1: Employees are prohibited from disclosing or communicating information of a confidential or sensitive nature, or non-public information concerning the company, on or through company property to anyone outside the company without prior approval of senior management or the law department. Lawful or unlawful under the NLRA?
Social Media & the NLRA Outcome: Unlawful
Social Media & the NLRA Policy Provision No. 2: Employees are prohibited from using the company s name or service marks outside the course of business without prior approval of the law department. Lawful or unlawful under NLRA?
Social Media & the NLRA Outcome: Unlawful
Social Media & the NLRA Policy Provision No. 3: Employees are prohibited from publishing any representation about company without prior approval by senior management and the law department. This prohibition includes statements to the media, media advertisements, electronic bulletin boards, weblogs, and voice mail. Lawful or unlawful under NLRA?
Social Media & the NLRA Outcome: Unlawful
Social Media & the NLRA Policy Provision No. 4: Social networking communications must be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comment regarding the employer, its subsidiaries, their shareholders, officers, employees, customers, suppliers, contractors, and patients. Lawful or unlawful under NLRA?
Social Media & the NLRA Outcome: Unlawful
Social Media & the NLRA Policy Provision No. 5: Employees should not make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or the Company s vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. Lawful or unlawful under NLRA?
Social Media & the NLRA Outcome: Lawful
Social Media & the NLRA: Legal Termination Based on Social Media Post October 19, 2012 Division of Advice Memo: Cox Communications, Inc., Case 17-CA-087612 Employee terminated for posting lewd and vulgar comment about customer Division of Advice found termination lawful
Disclaimer Today s presentation, this power point deck, the speakers comments and answers to questions should not be construed as legal advice and should not be used as the basis of any employment decision unless or until you have consulted with an attorney in order to obtain legal advice pertaining your situation.
Thank You Risa B. Boerner, Scott M. Waldman and Brent A. Cossrow