New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

In an earlier post, we reported that the National Labor Relations Board issued a complaint in a case involving the discharge of several employees for posting Facebook messages related to a co-worker’s criticism of their work performance. The case subsequently went to trial before an Administrative Law Judge. On September 2, the ALJ issued an opinion finding that the firings violated the NLRA by interfering with the employees’ right to engage in “concerted activity for the purpose of … mutual aid or protection.”

The Facebook postings occurred after one of the discharged employees learned that a co-worker had complained about the job performance of several employees and had expressed her intent to take the complaints to management. The employee who learned of the criticism posted a message on her Facebook page soliciting comments from other employees about the complaining co-worker’s criticism, and used the co-worker’s name. Predictably, several employees responded expressing various negative opinions about the criticism, the complaining co-worker, and the difficulty of various aspects of their jobs. None of the employees made the posts during work time, and none of them used a work computer. The employer’s Executive Director subsequently met with the five employees and fired all of them for harassment and bullying in violation of the employer’s anti-harassment policy.
 

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An appellate court in California recently held that an employee’s email exchanges with an attorney via the employee’s work email account were not protected by the attorney-client privilege, Holmes v. Petrovich Development Co. According to the Court’s opinion, when Gina Holmes began working for Petrovich Development Co., she read and signed the company’s employee handbook, which contained a policy regarding use of the company’s technology resources. The policy advised employees that: (1) the company’s technology resources, such as computers and email accounts, were for business purposes only; (2) employees had no expectation of privacy in the information or messages “created or maintained” on the company’s technology resources, including any emails sent or received on a company email account; and (3) the company could “inspect all files or messages … at any time for any reason at its discretion” and would periodically monitor files and messages. When Holmes got into an argument with the CEO about becoming pregnant a month after being hired, she exchanged two emails with an attorney via her company email account in which she explained her situation and asked about her rights. The next day, and after meeting with the attorney, Holmes quit her job claiming a hostile work environment and constructive discharge.

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The National Labor Relations Board (“NLRB”) recently filed a complaint against American Medical Response of Connecticut, Inc. (“AMR”), alleging that AMR violated the National Labor Relations Act (“NLRA”) by discharging an employee for posting comments on her Facebook page that were critical of her supervisor. In addition, the NLRB’s complaint alleges that AMR’s social networking policy constituted an unlawful restriction on employees’ rights to communicate with one another about their terms and conditions of employment and otherwise engage in protected concerted activity under the NLRA. A hearing before an Administrative Law Judge is scheduled with respect to the NLRB’s allegations on January 25, 2011.

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The courts have begun to address the question of whether an employee’s social network profile and postings, including sections only accessible to “friends,” are “private.” Most recently, the New York State Supreme Court for Suffolk County decided that the non-public portions of a plaintiff’s social networking sites are discoverable in litigation when they may contain information relevant to the plaintiff’s claims for damages for loss of enjoyment of life, Romano v. Steelcase Inc.

Ms. Romano sued her employer for, among other things, injuries she sustained that she alleged rendered her permanently disabled. According to the Court’s opinion, the publicly accessible parts of Ms. Romano’s Facebook and MySpace pages contained information which her employer “believed to be inconsistent with her claims” of permanent disability, “especially her claims for loss of enjoyment of life.” For example, publicly accessible photographs showed that Ms. Romano had an “active lifestyle” and traveled from New York to Florida and Pennsylvania during the time she was allegedly home and bed bound due to her injuries. The defendant employer made a discovery demand for access to all of her “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”—both the publicly accessible parts of such pages and those parts which Ms. Romano had marked as “private” and made accessible to only her social networking “friends.”
 

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The United States Court of Appeals for the Seventh Circuit’s recent decision in United States v. Szymuszkiewicz is yet another reminder that the law governing monitoring of electronic communications in the workplace is a rapidly evolving, and requires employers to regularly revisit their technology use policies. Szymuszkiewicz was an IRS agent in Wisconsin who was convicted under the federal Wiretap Act for intentionally intercepting an electronic communication. A jury found that he secretly activated the auto-forward “rule” on his supervisor’s Microsoft Outlook e-mail account. As a result, a copy of every e-mail the supervisor received was also sent to the agent. The Wiretap Act makes it unlawful for any person to intercept an oral, wire or electronic communication without authority or the consent of at least one party to the communication.

In challenging the conviction, the agent argued that a communication is only “intercepted” under the Act if it is caught “in flight” (before it reaches its destination). Because he merely forwarded e-mails that had already arrived at his supervisor’s computer, he argued, no “interception” occurred. The only crime he could have been charged with, he contended, was a violation of the Stored Communications Act. Noting the risk in “defend[ing] against one crime by admitting another,” the Seventh Circuit rejected the agent’s argument.

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On June 17, 2010, the U.S. Supreme Court issued a decision in a closely watched case involving discipline of an employee for improper text messaging, City of Ontario v. Quon. Although the Court’s ruling is narrow in scope, finding that the public employer’s search of the text messages was a reasonable search within the meaning of the Fourth Amendment, the Court clearly implied that an employee’s reasonable expectation of privacy will be shaped by a clearly communicated employer policy governing the use of each particular type of employer-provided technology.

The case involved the Ontario Police Department’s review of text messages sent and received by one of its officers on a department-owned electronic pager. The Department had a “Computer Usage, Internet and E-mail Policy” that gave the department the right to monitor employee Internet and e-mail use and all network activity. Although the policy did not explicitly cover text messaging, the department had officially stated that text messages on department owned pagers would be treated the same as e-mails under that policy.
 

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Social networking sites (e.g., Facebook, MySpace, LinkedIn, Twitter, etc.) are fast becoming a popular tool for employers seeking information about job applicants. It has been reported that the number of employers currently using social media during the recruitment and hiring process has more than doubled in the past two years. According to the same source, 45 percent of employers currently use social networking sites to screen potential job candidates and 35 percent of those employers have rejected an applicant because of information they discovered, such as inappropriate pictures, information regarding alcohol or drug use, and postings in which the applicant “bad-mouthed” a former employer, bragged about prior acts of misconduct or made discriminatory remarks.

The incentives for an employer to use a social networking site are clear: It is fast, free and easy. There can be little doubt that social networking sites contain a potential treasure trove of information about an applicant’s character. Employers want the best fit for the organization and the particular position, and online information may help in making that determination. However, employers should be aware that online profiles often contain inaccurate information and information that may be easily taken out of context or misunderstood. An individual may have little control over the information on his or her “wall” or message board.
 

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Last week, the New Jersey Supreme Court ruled that an employee has a reasonable expectation of privacy in communications with her lawyer via a personal, password-protected e-mail account, even if accessed on company-issued computer equipment. In Stengart v. Loving Care Agency, Inc., a forensic expert was hired by Loving Care to image Stengart’s laptop after she left her position and filed a lawsuit against the company. In the process, several e-mails exchanged between Stengart and her lawyer through her personal Yahoo e-mail account, were retrieved. The e-mails were reviewed by Loving Care’s counsel, and at least one was utilized in responding to discovery demands. The trial court found no violation of the attorney-client privilege, ruling that Loving Care’s electronic communications policy placed Stengart on sufficient notice that her e-mails were considered company property. However, an intermediate appellate court reversed. It found that the attorney-client privilege applied to the e-mails and ordered the return of the e-mails. In addition, it sent the case back to the trial court for a hearing on potential sanctions against counsel.

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Social networking and blogging sites, such as Facebook and Twitter, continue to grow in popularity. The number of participants is staggering. Facebook alone recently reported that it now has more than 400 million active users.

Given the rise in use of social networking sites, employers should consider implementing  a policy governing employee use of such sites. A well-drafted social networking policy is essential because an employer’s existing policies, such as those governing confidentiality or the use of the employer’s computer systems, may not be broad enough to protect against employee misuse of these sites. This post covers some of the issues to consider in drafting an effective social networking policy, and also discusses the practicalities of investigating alleged violations of such a policy.
 

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Under guidelines recently issued by the Federal Trade Commission (“FTC”)—Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255—an employer may now face liability for employee endorsements of its products and services, if the employment relationship is not disclosed. The guidelines, which took effect on December 1, 2009, require that employees who endorse their employer’s products or services, must “clearly disclose” the employment relationship within the endorsement.

Although the new guidelines are primarily concerned with celebrity endorsements, they also apply to more routine comments ordinary employees may make on social media outlets such as personal blogs, Facebook and Twitter. The FTC has stated, for example, that where an on-line blogger discusses a product manufactured by her employer, she “should clearly disclose her relationship to the manufacturer to members and readers of the message board” because knowledge of that relationship “likely would affect the weight of credibility of her endorsement” in the eyes of the public. If the employment relationship is not disclosed, both the employer and employee may face liability under Section 5 of the Federal Trade Commission Act (15 USC § 45 et seq.), which prohibits unfair or deceptive acts or practices in the marketplace. This is so even if the employee’s endorsement was not authorized or sponsored by the employer, and even where the actual endorsing statement is not misleading.
 

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Being at work apparently poses no obstacle to checking the Facebook or MySpace status of friends and keeping up-to-date with the continuous “tweets” on Twitter.  According to a recent study  conducted by Nucleus Research, 61% of all employees access their Facebook profiles at work. While the length of time employees are plugged-in varies from one to 120 minutes per employee per day, according to the same study employers lose an average of 15 minutes of productivity per day from each social networking employee.

What is an employer to do?

An employer can prohibit accessing social networking sites during working hours.  But this approach may have its own detrimental side effects on employee productivity.  According to one university study, employees who surf the Internet at work, including accessing Facebook and YouTube, are 9% more productive than their non-Internet surfing counterparts.  A ban on employee access to social networking sites can also limit the potential benefits an employer might receive from such sites.  For example, the networking site LinkedIn can serve as a valuable tool for businesses looking to build relationships with potential clients/customers.  And, as one researcher has noted, sites like Facebook can assist employees in building relationships with professional acquaintances which can benefit their employers in the long run.

 Monitoring employees’ use of Twitter, Facebook, MySpace, and other social networking sites is another option.  But monitoring employee use of such sites raises several legal issues, including, in particular, whether an employer that accesses an employee’s social networking page without the employee’s consent violates federal law.

Social networking sites offer subscribers a variety of protections to keep their posts private or semi-private.  If a subscriber sets his profile to “private/friends only,” he can reasonably expect that his employer will not have access to his profile posts or pictures unless he accepts the employer as a Facebook “friend.”  But picture this scenario: Co-workers engage in a dialogue critical of their employer on a MySpace page that can only be accessed by individuals invited and authorized by the page creator to view it.  The employer then terminates these employees after learning about the page and its posts from an authorized viewer. Legal? According to the court in Pietrylo v. Hillstone Restaurant Group d/b/a/ Houston’s, (D.N.J. 2008) , the answer to that question depends, in part, on whether the employer violated a federal statute, the Stored Communications Act (“SCA”) (18 U.S.C. § 2701 et seq.).

The SCA applies to communications stored on Internet sites (such as Facebook, MySpace, Twitter, etc.). It imposes criminal penalties on individuals who gain unauthorized access to such stored communications. Employers can run afoul of the SCA by covertly monitoring their employees’ private social networking postings by, for example, using spyware to track keystrokes to gain log-in information. But the Act’s protections extend beyond such covert measures. “Unauthorized access” also encompasses situations where authorized access is exceeded.  The Act excepts from liability “conduct authorized … by a user of that service with respect to a communication of or intended for that user.”  So long as the information is freely provided by someone who is authorized to and has accessed the private website, the Act permits an authorized user to allow a third party to gain access to the same information the authorized user has access to.

In Pietrylo, the employer gained access to an employee’s password-protected, “by invitation only,” MySpace page when an invited member of the page (also an employee) showed it to a manager at a dinner party. The manager thereafter asked the invited member for her log-in name and password, and used that information to repeatedly access the page and its postings. The court held that a jury could find this means of access not “authorized” under the SCA, if the invited member’s consent was given under duress (the invited member thought that she could get in trouble with the company if she did not provide the information). The jury ultimately returned a verdict against the employer, and found that the employer had, in fact, gained unauthorized access to the MySpace page in violation of the SCA.

The Pietrylo decision and verdict does not mean that every request for log-in information will violate the SCA. Had the invited member in Pietrylo freely given the employer her log-in information, the employer would likely have faced no liability. But whether consent is freely given will often be a difficult question to answer, so employers should be cautious when making requests.

Moreover, the potential legal issues raised by accessing a social networking site do not end with the question of authorized access. Once access is lawfully gained, the issue then becomes, what, if anything, employers can do with the information that is discovered. For an overview discussion of those potential legal issues, see Employers: ‘Keep out!’ Beware intruding in employee web sites by Louis P. DiLorenzo.  

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