GETTING A LEGAL GRASP ON SOCIAL MEDIA Presented by: Jeffrey D. Litts Kegel Kelin Almy & Grimm LLP...

GETTING A LEGAL GRASPON SOCIAL MEDIA

Presented by:

Jeffrey D. LittsKegel Kelin Almy & Grimm LLP

PASBO 57th ANNUAL CONFERENCEMarch 7, 2012________________________________________________________________________________________

24 North Lime Street, Lancaster, PA 17602 TEL: 717-392-1100 FAX: 717-392-4385 www.kkaglaw.com

Social Media Creates New Twists

on Old Issues in the Workplace

• Productivity• Hiring• Discipline/Firing• Selective Policy Enforcement• Unauthorized Access to Accounts • First Amendment• Fourth Amendment

Social Media

Is it a productivity killer?

Social Media

Is it a productivity killer? YES• 25% of employees visit social media sites

while at work and on employer’s computer (Trend Micro)

• 30-75 minutes per day on non-business on-line activity (Insight Express, Digital Manufacturing Research)

Social Media

Is it a productivity killer? NO• University of Melbourne. Study showed

employees who spend up to 20% of time surfing the web were 9% more productive than those who did not.

• 2009 Ball State University Study – employees spent 9 times more time on cigarette breaks than on Facebook.

Social Media

Is it a productivity killer?

REGARDLESS: Employers have the right to limit personal social media use during work time and on company technology.

SOCIAL NETWORKING AND EMPLOYMENT LAW

• Use of Social Networking Site and Internet Searches in Hiring Practices

• Disparate Treatment When Disciplining Employees for Violations of School District’s Technology Policies.

• Supervisors’ unauthorized access of employees’ electronic accounts, files, etc.

Hiring: Social Media

as Screening Tool

It’s Effective• 70% of recruiters and HR professionals reported

rejecting candidates based on information discovered on-line:

→ Inaccurate resume information→ Character flaws or values that do not

match company’s→ Ability/inability to exercise discretion→ Writing/grammar skills→ Etc.

Source: Young job-seekers hiding their Facebook pages, CNN.com 3/29/10).

Hiring: Social Media as Screening Tool

Use In Hiring Practices

What you can’t ask an applicant: How old are you?

What’s your maiden name? What church do you attend? Do you have any children?

What is your national origin? Are you disabled?


Use In Hiring Practices

What Did We Discover?• Gender• Marital status• Religion• Political views• Children/pregnant• Age• Race


Use In Hiring PracticesWhat Else Could You Discover?• Photos or posts of employee behaving badly• Disparaging remarks about former employer, co-

workers or clients• Statements reflecting general character and

judgment of candidate• Inconsistencies and inaccuracies in qualifications• Poor communication/writing skills

Hiring

Inability to Exercise Discretion?

Hiring

Evidence of an Applicant’s Writing Skills (or lack thereof)

Hiring: Social Media

as Screening Tool

Beware of the “failure to hire” claim!!You may discover information you otherwise would not be entitled to as an employer and upon which you cannot base a refusal to hire, e.g., any “protected category”

Hiring Continued

Can you require applicants to provide access to their Facebook page, identify user name and passwords for Twitter, or other online memberships, etc? Should you?

Discipline and Firing

Can you discipline an employee for on-line posts, tweets, blogs, videos, etc.?

Does it make a difference if the posts are made on the employee’s own time and posted from employee’s personal computer versus the employer’s technology?

Professor Venting = Suspension and Psych Evaluation


What is Google’s Social Media Policy?

“Don’t be stupid”

Can You Fire an Employee

For Being Stupid?


Continued

School Code provides most school employees with job protections

ISSUES TO CONSIDER BEFORE YOU DISCIPLINE:•Protected concerted activityAmerican Medical Responders (a/k/a “NLRB Case”)•Selective policy enforcement•Potential retaliation claim•Protected categories


Continued

ISSUES TO CONSIDER BEFORE YOU DISCIPLINE:

•How was the information obtained ? (remember the SCA)•Is the discipline consistent?•Content and Context

Facebook Firing Finally

Challenged

American Medical Resp. of Conn., Inc., et al., Case No. 34-CA-12576

• Employee requested and was denied union representation after report of a customer complaint

• Employee subsequently posted a negative comment about her supervisor on her Facebook page;

co-workers added supportive comments; employee further disparaged Employer

• Employee is fired• Were the Facebook postings and comments “protected

concerted activity?”


Employees: Selective Policy Enforcement

• Employer denied summary judgment on discrimination case because jury could find employer selectively enforced its e-mail policies and used more severe discipline with employees in certain protected class. Williams v. Wells Fargo Financial Acceptance Corp., 864 F. Supp. 2d 441 (2008).


Employees: Selective Policy Enforcement

• Employee did not suffer discrimination as a result of being fired for visiting gun Websites in violation of employer’s computer-use policy, when other employer not disciplined for accessing social networking sites. Jackson v. Planco, 660 F.Supp.2d. 562 (E.D. Pa. 2009).


Unauthorized Access to Electronic Accounts

• Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s – Jury concluded that the managers violated Stored Communication Act by coercing a subordinate employee into allowing them access to a MySpace chat room to monitor plaintiffs’ postings.


Electronic Communications Privacy Act (“ECPA”)• Makes it unlawfully for any “person” to

intentionally intercept “electronic communications.”

• ECPA creates private right of relief for violations, which include equitable relief, punitive damages and attorneys’ fees.


Stored Communication Act• Makes it a crime for any “person” to either:– intentionally access without authorization a “facility”

through which an “electronic communication service” is provided; or

– intentionally exceed an authorization to access the facility, and to obtain, alter or prevent authorized access to electronic communication while it is electronically stored.

• Section 2707 of the SCA provides for a civil remedy whereby aggrieved persons may seek injunctive relief, actual and/or punitive damages and attorney’s fees.


Pennsylvania Wiretapping and Electronic Surveillance Control Act

• State Law equivalent of ECPA and SCA• Com. v. Cruttenden, 976 A.2d 1176 (2009) – police officer’s

warrantless intercept of text messages violated PA wiretap law.• Police officer’s unauthorized use of another officer’s password

to access digital data in violation of department policy did not constitute “unauthorized access” under state’s computer crime law. State of N.J. v. Riley, 988 A.2d 1252 (N.J. Super. 2009).

FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES

• Newspaper headlines regarding employee Facebook gaffes:– teacher forced to resign after students discovered her

Facebook with photos of her drinking alcohol and a reference to “Bitch Bingo.”

– teacher placed on administrative leave for posting a photograph of herself with a gun on her Facebook page.

– teacher suspended after someone posted photos of her with a male stripper on a Facebook page.

– professor placed on administrative leave for making a joke on her Facebook page about hiring a hitman.


SUPREME COURT JURISPRUDENCE• Pickering v. Board of Education, 391 U.S. 563

(1968)– School employees have First Amendment rights to

speak on matters of “public concern.”– If speaking on matters of “public concern,” school

employees face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.


Connick v. Myers, 461 U.S. 138 (1983)• What is a matter of public concern?• Connick held “speech on matters of political, social

or other concern to the community” is protected by the First Amendment

• However, when an employees speaks “upon matters only of personal interest, absent the most unusual circumstances” a court is not the appropriate forum to review personnel decisions


• Rankin v. McPherson, 483 U.S. 378 (1987)– Relevant considerations when balancing

employee’s 1st Amendment rights against government interestStatements impair discipline by superiors;Impact harmony among co-workers;Have detrimental impact on close working relationship

for which personal loyalty and confidence are necessary; or

Speech impedes employee’s performance of duties.

FIRST AMENDMENT AND SOCIAL MEDIA - EMPLOYEES

Garcetti v. Ceballos, 547 U.S. 410 (2006)• When public employees make statements pursuant to their

official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

• Expressive conduct is protected by the First Amendment, if:– the public employee spoke as a citizen;– on a matter of public concern;– the employee’s interests in disseminating the particular

ideas expressed outweigh those of the public employer in restricting them.


Snyder v. Millersville University, 2009 WL 5093140 (E.D. Pa. December 3, 2008)• A student teacher did not have her First

Amendment free speech rights violated when she was removed from student teaching program and denied education degree due to MySpace web pages about her found on the Internet.

• Student’s website posting was not speech touching on matters of public concern.


Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. 2009) • A special education due process hearing officer did not

have her First Amendment free speech rights violated when her employment contract was not renewed due to her advocacy in blog posting regarding special education issues.

• The hearing officer’s conduct potentially undermined the integrity of the due process hearing system to resolve special education issues based upon specific parties raising concerns regarding her impartiality.


Richerson v. Beckon, 2009 WL 195436 (9th Cir. 2009) • A school district administrator’s First Amendment free

speech rights were not violated after she was demoted to a classroom teaching position as a result of posting on her personal internet blog.

• The administrator’s public blog contained highly negative comments regarding school employees, which severely impaired her ability to work with them. Thus, legitimate administrative interests of the school district outweighed the administrator’s First Amendment interests in not being transferred because of her speech.


Spanierman v. Hughes, 576 F. Supp.2d 292 (D. Conn. 2008)• Non-renewal of high school teacher’s contract

following the discovery of his MySpace profile and activity did not violate First Amendment.

• Court found teacher’s MySpace activity with students was disruptive to school activities


School District Advice• School Districts may want to adopt written

social media policies for employees.• School District employees should understand

pitfalls of “friending” students on social networking sites.

• School Districts should investigate alleged employee of social media abuses.

Employee’s Use of Social Media

Other Issues

• Can you monitor employee’s online activity?– YOU BET! Smyth v. Pillsbury Co., 914 F. Supp. 97

(E.D. Pa. 1996) (Employees have no expectation of privacy in e-mails sent, stored or received at work)

• Must you monitor?– MAYBE – Doe v. XYZ Corp., 887 A.2d 1156 (N.J.

Super. App. Div. 2005) (when put on notice, employers have a duty to investigate and stop unlawful conduct)


Advice for School Districts• SD social media rules or protocols should be

consistently enforced on a district-wide basis.• SD administrators must know that monitoring

employee social media usage can create problems; they cannot use passwords without the proper authorization to gain access to employees’ electronic accounts, files, etc.

FOURTH AMENDMENT AND SOCIAL MEDIA

• School District searches of student’s personal electronic media.

• School District searches of employees’ workplace technology

• State and federal laws protecting electronic communications.

FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS

New Jersey v. T.L.O., 469 U.S. 325 (1985)• Supreme Court held that school officials may search students

as long as the search is reasonable; the search must be justified at its inception and reasonable in scope.– Search is justified when there are reasonable grounds for

suspecting that the search will turn up evidence of student wrongdoing; and

– Scope of search is permissible when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive.


Klump v. Nazareth Area School District, 425 F. Supp. 2d 622 (E.D. Pa. 2006).

• Court found the confiscation of the cell phone was justified because the student violated the school policy.

• However, search was unreasonable in its scope because school officials “had no reason to suspect at the outset that such a search would reveal that the student was violating another school policy.”


Robbins v. Lower Merion School District, et al., • Class action suit against SD for issuing students

laptop computers equipped with web cameras, which were allegedly used to unlawfully acquire and export personal data and communications.

• The lawsuit alleges SD personnel unlawfully spied on students by remotely activating the laptop webcams in violation of the Fourth Amendment.


N.N. v. Tunkhannock Area School District• Student’s cell phone confiscated for violating school

rules, principal alleged searched through cell phone and uncovered nude images the student had taken of herself.

• ACLU filed suit “because many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one.”


High School officials investigated for mishandling images in ‘sexting’ case

• Parent alleged that pornographic images from confiscated student cell phones were “passed around” by school officials.

• DA said that school employees could be charged with displaying child pornography, if they showed the images to people not involved in the school investigation.


Advice for School Districts• School administrators must understand and

follow T.L.O. standards before searching students’ PEDs.

• School officials should seek solicitor advise before performing searches to avoid potential legal problems.

FOURTH AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES

Employee Privacy Rights in Workplace Technology

• Public employers must consider Fourth Amendment privacy rights when employees use workplace communication technology.

• Supreme Court Jurisprudence– O’Connor v. Ortega– City of Ontario, et al. v. Quon, et al.


O’Connor v. Ortega, 480 U.S. 709 (1987), four judge plurality established a two-step analysis for public employees’ Fourth Amendment claims:– consider the “operational realities of the workplace” to

determine if an employee’s constitutional rights are violated.

– a public employer’s intrusion on legitimate privacy expectation for “noninvestigatory, work-related purposes” and investigations of work-related misconduct, should be reasonableness standard.

FOURTH AMENDMENT AND SOCIAL MEDIA - EMPLOYEES

O’Connor concurrence• Justice Scalia disagreed with the “operational

realities” inquiry assuming a privacy expectation exists, but held that “government searches to retrieve work-related materials or to investigate violations of workplace rules – searches of the sort that are regarded as reasonable and normal in the private-employer context – do not violate the...Amendment.”


City of Ontario, et al. v. Quon, et al., Case No. 08-1332 (U.S. S.Ct. June 17, 2010)

– The city issued pagers, which are able to send and receive text messages, to its police officers.

– The city’s service contract had monthly limit on the number of characters each pager could send and receive, and usage in excess of the limit resulted in additional fees.

– The department initially allowed its officers to pay the additional fee when they exceeded their monthly character limit, but the department chief became “tired of being a bill collector.”


Quon (facts cont’d)— The department sought to determine whether the monthly

character limit was too low after some officers exceeded their limit for several months.

— The department obtained text message transcripts which showed many of Quon’s messages were not work related, and some were sexually explicit.

— An investigation of Quon’s on-duty text messages showed that few were related to police business.

— Department disciplined Quon and sued the department alleging it violated the Fourth Amendment and Stored Communication Act by obtaining and reviewing the transcripts of his text messages.

FOURTH AMENDMENT AND SOCIAL MEDIA - EMPLOYEES

City of Ontario v. Quon• The Court decided not to resolve the issue regarding

Quon’s privacy expectation in the text messages.• Court explained for its reason for caution...“The Court

must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear....Prudence counsels caution before the facts in the instance case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.”


City of Ontario v. Quon (cont’d)• The Court held that the warrantless review of Quon’s text

message transcripts was reasonable because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope.– Department’s audit to determine if the city’s contractual

character limit was sufficient to meet its needs provided reasonable grounds to justify an intrusion on employee privacy;

– Transcript review was a reasonable means to determine if the monthly character limit was too low, and a “least instructive” means approach was not required.


City of Ontario v. Quon (cont’d)• The Court also dismissed the Fourth Amendment claims of

individuals who sent text messages to Officer Quon, because they made no corollary argument that if search was reasonable as to Quon, it could still be unreasonable as to them.

• Scalia’s concurrence noted his displeasure for the majority’s “additional explanation for declining to decide” the privacy issue; he cautioned that the majority’s commentary will invite judges and lawyers to try to apply what they think the Court said on the broader constitutional issue of privacy expectations.


Advice for School Districts• School Districts should continue to enforce policies

telling employees they have no expectation of privacy when using district-issued technology, i.e., cell phones, computers, e-mails, internet service, etc.

• School Districts should discourage employees from using district technology to store or send personal e-mails, electronic files, digital images, etc.

• Understand RTK implication of electronic communications.


Advice for School Districts

• School Districts must still comply with the following when disciplining employees for social media issues:– School Code– Collective Bargaining Agreement (if applicable)– SD policies and procedures

Employee’s Use of Social Media

Other Issues

A New Method of Communication?

• Status updates to call out of work?• Facebook message to report tardiness• Intentional and unintentional use of social

media to report supervisor/colleague misconduct

If You Are Confused, You Are Not Alone!

• Although 58% of business executives surveyed believe social networking risks should be addressed on a company level, only 15% are actually discussing ways to do so.

• 60% of business executives believe they have a right to know how their employees portray themselves online.

• However, 53% of employees say their social networking pages are not their employer’s business.

Source: Social Networking & Reputational Risks in the Workplace, Deloitte LLP 2009 Ethics & Workplace Survey Results

What is an Employer to Do?

BLOCK IT?

What is an Employer to Do?

You Can’t Ignore It

Social Media Policy

Policy Checklist:

□ NO EXPECTATION OF PRIVACY

□ No non-work related on-line activity during working time.

□ No “friending” of subordinates

□ May not use social media in or out of workplace to violate any other employer policy or law [e.g., sexual harassment policy, or confidential information policy or HIPAA]

Policy Checklist - continued

□ Usage of all employer-owned technology

is subject to monitoring.

□ Employer access to employee’s social media sites, Twitter accounts, blogs, etc.

□ Employee off-duty conduct, social media activity which is contrary to the

employer’s best interests and/or reputation may be grounds for discipline up to and including discharge.

Policy Checklist - continued

□ “Friending” of students is not permitted.

□ Use in recruiting/hiring (separate internal policy)

QUESTIONS?

GETTING A LEGAL GRASP ON SOCIAL MEDIA Presented by: Jeffrey D. Litts Kegel Kelin Almy & Grimm LLP...

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