Social Media, Washington Employment Law, and the Electronic Workplace
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What’s Yours, What’s Mine – Questions About Professional and Personal Social Media Presences

April 2, 2012 | Author: Sarah Evans

An employer hires a marketing director, “Sue.”  Sue implements a company blog (hosted on the company’s website), Facebook page and Twitter account.  She posts to all of these on behalf of the company, and in furtherance of the Company’s social media marketing campaigns. 

Sue also has a personal Facebook page and a personal Twitter account.  These are indisputably in furtherance of her own personal “brand,” although she entered and stored all of her access information for both the personal and company accounts on company computers and the company server.

One day, Sue is in a debilitating automobile accident.  While she is out, the company posts entries to Sue’s personal Facebook page promoting the company, accepts several “friend” requests, and sends out more than a dozen “tweets” which also promote the company and link back to the company’s blog or website.

After Sue recovers, she brings a lawsuit alleging, among others, violation of the Lanham Act, Stored Communications Act, and a common law privacy claim.

These are the issues the Court faced in Maremont v. Susan Fredman Design Group, Ltd, et al., a December 2011 case decided in the Northern District of Illinois.  The Court held that the plaintiff had standing to bring her Lanham Act claim because she had:

a protected, commercial interest in her name and identity within the Chicago design community” because it was “undisputed that [Plaintiff] created a personal following on Twitter and Facebook for her own economic benefit and also because if she left her employment at [Defendant], she would promote another employer with her Facebook and Twitter followers.

The Court also held that it was disputed as to whether Defendant had exceeded its authority in obtaining access to the plaintiff’s persona Facebook and Twitter accounts in violation of the Stored Communications Act.  The undisputed evidence showed that Defendant “accessed [Plaintiff’s] persona Facebook account and accepted friend requests at least five times … [and that Defendant] posted seventeen Tweets to [Plaintiff’s] personal twitter account.

For both the Stored Communications Act and Lanham Act claims, the remaining issue to be decided at trial was damages.  In other words, could the plaintiff demonstrate “actual damages” or “actual injury” sufficient to prevail?

On the right to privacy claim, the Court stated that the plaintiff’s Facebook and twitter posts were not private, and that the plaintiff did not try to keep any such facts private.  This was based on the plaintiff’s use of Facebook and Twitter as a marketing tool targeted to the design community, and her frequent links from her personal Facebook and Twitter accounts to the Company’s blog and website.  On this basis, the Court stated that plaintiff’s privacy claim failed because she failed “to point to any private information upon which Defendants intruded.”

What can we learn from this case?  An employee’s personal Facebook and Twitter accounts, even if they are utilized as marketing tools in the industry, are not open for access and use by the employer – even if the employee leaves the passwords at the office.  And what is the employee’s and what is the employer’s when it comes to social media campaigning can be confusing, so check with counsel first!

The Relevancy of Facebook Posts in Litigation

March 28, 2012 | Author: Sarah Evans

In a January 2012 case out of the Sixth Circuit, Tompkins v. Detroit Metropolitan Airport, et al, the Court denied Defendant Northwest Airlines’s request for a plaintiff’s entire Facebook account in discovery.  The plaintiff was suing for back and other injuries arising from a slip and fall.  In holding that the information sought, which included “private” posts, i.e., posts only available to the select group of “friends” plaintiff designated, was not sufficiently relevant to the lawsuit, the Court stated:

… Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.  Rather, consistent with Rule 26(b) … there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.  Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

In this case, the Defendant argued that the public postings of photos of the Plaintiff “holding a very small dog and smiling, and standing with two other people at a birthday party in Florida” demonstrated that the private postings would likely contain relevant information to Plaintiff’s claims of injury.  The Court said this was not enough because Plaintiff did not allege she was “bed-ridden, or that she is incapable of leaving her house or participating in modest social activities.  The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.”

In addition to finding that Defendant had failed to demonstrate the relevancy of the “private” postings, the Court also stated that the request for the entire account was overly broad:

Moreover, the request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad. 

What is the lesson from this case?  If you are going to seek plaintiff Facebook postings in discovery, make sure you have a strong argument for relevancy.  In Washington employment cases, employers may pursue Facebook posts in order to respond to plaintiff allegations of emotional distress damages, for example.

Facebook Firing – in Canada

January 18, 2011 | Author: Sarah Evans

Ask any Washington employment law defense attorney about our fair friends in Canada and the attorney will likely provide you with an extensive explanation of how in Canada, in many circumstances, employees get severance when they are terminated, and how Canadian employment law makes the employee-friendly West Coast look positively draconian.  However, even Canadian employers have their limits, and apparently slurs based upon sexual orientation and threats against bosses will do it. 

In what is being called Canada’s first Facebook firing, two West Coast Mazda employees were terminated after they made comments on the social networking site including references to stabbing someone in the face “14 or 16 times” and admiration for the “top five kills” from TV’s fictitious vigilante Dexter.  Interestingly, none of the comments were made during work hours or from work computers.  And even though the employees cried foul and said the real reason they were terminated was because of their union organizing activity a few months earlier, the B.C. Labour Relations Board didn’t buy it. 

The Board agreed with the employer when it said the private time comments amounted to insubordination and led to a hostile work environment.  Of course, this was particularly compelling given the fact that the employees’ bosses were among the Facebook friends who received the posts. 

This case, while it is certainly not precedential for U.S. employers, does set forth reasoning which may be helpful for establishing that there are limits to what may be acceptable conduct among union employees – even in this age of increased union activity.

 

What is Retaliation Anyway?

December 7, 2010 | Author: Sarah Evans

Retaliation claims in employment lawsuits are exceedingly common.  Hardly a case gets filed that doesn’t allege retaliation.  Employment law attorneys know these claims are harder to dismiss on summary judgment, and now the U.S. Supreme Court will take up the question of whether to expand the class of persons who have standing to bring such a claim. 

In Erle M. Thompson v. North American Stainless, LP, which is before the High Court this term, Thompson alleges that his termination was in retaliation for his fiancee’s filing of a gender discrimination claim.  While the Equal Employment Opportunity Commission and a panel of the U.S. Court of Appeals for the 6th Circuit agreed that Thompson could pursue a lawsuit, the full appeals court held otherwise.  Instead, it agreed with North American Stainless that only the person who had filed a complaint against a company – in this case, Thompson’s fiancee - was protected from retaliation. The company said its reasons for firing Thompson had nothing to do with his fiancee.

If the Court agrees with the EEOC and the 6th Circuit Court of Appeals panel, it will expand the class of people who may bring a retaliation claim to include not just those who actively participate in discrimination claims as a witness or a plaintiff, but also those who are merely associated with such individuals.  If this becomes the rule, expect even more employment law claims – including stand-alone retaliation claims based on mere association.  Stay tuned!

In the Age of the Internet, Customer Lists May Not Be Trade Secrets

November 11, 2010 | Author: Sarah Evans

Employment law attorneys are familiar with the refrain – my customer contact lists are trade secrets!  A recent case coming out of the Eastern District of New York, Sasqua Group, Inc. v. Lori Courtney, 2o10 U.S. Dist. Lexis 93442, disagreed, holding that the employer’s database of client information, including contact information, descriptions of previous interactions with clients, resumes and other information was not a protectable trade secret.  One reason?  The fact that Sasqua’s former employee testified that anyone could re-create much of the same information doing a simple search on Google, LinkedIn, Facebook, and other similar websites.   Another chief factor was the lack of any security measures to keep the database confidential.  No employees had confidentiality agreements, the database was not password protected (in fact, company computers were not even password protected), and even temporary workers had access to the database. 

What does this mean for businesses who desire to protect their customer contacts?  First, put basic measures in place to ensure the best chance for the information to qualify for trade secret protection:  have employees sign confidentiality agreements, password-protect your computer systems and restrict access to customer information to only those with a business need.  Second, employees who will have access to this type of information should be subject to a non-competition agreement.  And third, the information you seek to protect should not be something anyone with a little internet research savvy can pull together in five minutes, which was the case here.

Harnessing Social Media to Stop Harassment

October 28, 2010 | Author: Sarah Evans

A new website called Harassmap is in the planning stages.  According to the Associated Press, the website plans to help women in Cairo report harassment by text message or Twitter, which will then be loaded onto a map of the city.  The idea is to help women avoid areas which might be dangerous for women to walk alone.  Apparently, Cairo is unfortunately a hotbed of sexual harassment.  A 2008 survey by the Egyptian Centre for Women’s Rights found that 83% of Egyptian women and 98% of foreign women living in Cairo said they had been harassed in some way – and 62% of men admitted to harassing.  For women in the United States, Hollaback.com provides similar services.

Just goes to show, the power of social media is not all gloom and doom.     And for this Seattle employment law attorney, that is good news indeed.

In a School District with No Social Media Policy, Teachers Fired for Flirting with Students on Facebook

October 19, 2010 | Author: Sarah Evans

At least three teachers in the New York City public schools have been fired in the last several months for engaging in inappropriate flirtatious, and let’s be honest here, creepy behavior with students on Facebook.  The New York Post reports that one teacher wrote “this is sexy” comments to student photos.  Another teacher told a young girl she was “pretty” and that he had tried to visit her during her weekend classes.  A third teacher is under investigation for apparently giving extra credit to students who friended him on Facebook.  Whatever happened to writing reports for extra credit?

What was surprising about the school’s comments to the New York Post was the administrator stated there is still no official social networking policy in place.  While this district is quite the opposite from the restrictive environment that almost ended up in a lawsuit from teachers in Florida – when the District tried to implement a too-restrictive social media policy – the lack of any policy is obviously leading to some irresponsible behavior that might not otherwise take place.  At the end of the day, it’s probably better to have too restrictive of a policy than none at all, as this employer demonstrates.

Work at Porsche? No Facebook for You – On your Work Computer, at Least

October 12, 2010 | Author: Sarah Evans

Motortrend magazine reports that employees at Porsche have no access to Facebook through their workplace computers.  As any social media employment law attorney will tell you, this is not necessarily uncommon.  What makes the ban newsworthy is Porsche’s explanation:  Apparently Porsche wants to protect its employees from spying by ”foreign intelligence services.”  Interesting.  More likely, however, is its concern with employee disclosure of confidential business information that would harm its competitive edge with other car manufacturers. 

And, of course, this ban does nothing about the employee’s ability to access Facebook from mobile devices.  To be more safe from industrial espionage and the possibility of employees posting company information on Facebook or other similar sites, Porsche should consider banning the use of camera phones at work.  Hard to enforce but high security employers do it all the time.  And, of course, have a strong social media policy in place specifically prohibiting any disclosure of confidential business information. 

All good things to protect that competitive edge on the social media autobahn.

New Facebook Groups Function Puts Connecting Over Your Privacy

October 7, 2010 | Author: Sarah Evans

In an insightful article, PC Magazine analyzes Facebooks’ new group function where users can create small groups to discuss matters in private that they do not wish to have broadcast to the world at large.

One small gliche.  Apparently anyone who is your Facebook friend can add you to any group they create – and the fact of your membership in the group itself is not private either.  According to the article, the parade of horribles has already been demonstrated:

About that invite function. The people you invite to an open Group are automatically members; they don’t have to accept. That’s fine if you are creating Groups in good faith, but what about the inevitable pranksters who create questionable Groups and automatically enroll some of their (sometimes famous) friends?

That trick was outlined in a recent blog post from Sophos’ Chester Wisniewski, who found that someone had created a Group for NAMBLA (essentially a pro-pedophile group), and added their “friend,” TechCrunch editor Michael Arrington. Arrington then allegedly added Facebook chief executive Mark Zuckerberg. And the whole thing showed up in the public news feed.

Facebook’s response?  If you have friends who are going to add you to groups you find offensive, perhaps you should un-friend that person.  Thanks for that sage advice, captain obvious.

What does this mean for employment attorneys?  More concern for business clients who use Facebook for professional purposes as they can suffer significant damage if some poorly-chosen friend decides to create a “group” and add them to it which negatively impacts their reputation.

And for companies facing union certification votes, this groups function may make it even easier to unionize given the fact that people have to actively opt out of the group.  A very quick and easy way for a well-connected employee on Facebook to get the word out on a union campaign.  This is not mere speculation, as The National Law Journal points out, it’s a reality.  The NLRB is already seeing and ruling on grievances arising from social media policies, and in today’s more liberal climate for labor relations, it is likely that the Board will begin ruling more in favor of unions on such issues.  After all, the NLRB has its own Twitter feed, YouTube channel and Facebook page.   

Food for thought as Facebook and social media continue to evolve.

Social Media Re-Cap

October 7, 2010 | Author: Sarah Evans
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