1. SPEAKERS: Patrick H. Flanagan (704) 940-3419 pflanagan@cshlaw.com Norwood P. Blanchard (910) 332-0944 nblanchard@cshlaw.com Ryan D. Bolick (704) 940-3416 rbolick@cshlaw.com SPEAKERS: Patricia L. Holland (919) 424-8608 Patricia.holland@jacksonlewis.com M. Robin Davis (919) 424-8609 Robin.davis@jacksonlewis.com Ann H. Smith (919) 424-8610 Ann.smith@jacksonlewis.com

2. Blogging, Facebook, T[sex]ting and Twitter in the Work Place

3. What Has Been the Positive Impact of Technology on the Workplace?  Instant transmittal of information  Rapid business transaction  Improved work flow  Increased practicality of the multi-office workplace  Increased practically, desirability and usage of alternative working arrangements

4. What Has Been the Negative Impact of Technology on the Workplace?  Blogs have been used to criticize and disparage employers.  Confidential or embarrassing information can be “leaked.”  Social Networks are prime locales for sexual harassment.  Internet use can reduce the productivity of the employees if left unmonitored.

5. Social Networking Sites: All the Rage  Two-thirds of the world’s internet population visit social networking or sites  Facebook has more than 400 million users  Use of Twitter has soared more than 1,200 percent  In February 2009, time spent on social networks surpassed email for the first time (Source: Teddy Wayne, “Social Networks Eclipse E-Mail,” The New York Times, May 18, 2009)

6. Some Interesting Statistics  25% have shared personal information  MySpace currently has over 200 million registered users.  Facebook has over 300 million active users.  Largest growth not by teenagers but by 25 to 54-year-olds

7. Social Networking Sites: All the Rage

10. What’s all the ‘Twitter’ at Work?  22% of employees visit SNS 5 or more times per week; 23% visit 1-4 times per week  53% of employees say their SNS are none of their employer’s business  61% of employees say that even if employers are monitoring their social networking profiles or activities, they won’t change what they’re doing online  74% of employees say it’s a way to damage a company’s reputation on social media Source: 2009 Deloitte Ethics Workplace Survey

11. The Variety of Electronic Forums Increases the Importance of Employer Vigilance  E-mail  Blogging  YouTube  Host sites  Social Networking Sites

12. Is this the Image You Want for Your Employer?

13. What about this?

14. It’s Amazing What Folks Put on the Internet for Everyone to See

17. WHAT??

18.  Can you discipline or terminate an employee for what they say or do on the Internet?  Can you base a hiring decision on content about the candidate on the Internet?  Do employees have an expectation of privacy regarding employer email and computers?  What are the risks of defamation claims from electronic employee postings?  What are the risks of sexual harassment claims arising from internet use and what defenses are available?  How does electronic communication effect e-discovery when claims or lawsuits are brought? Employment Issues Raised by the Internet

19. HIRING DECISIONS

20. Would You Hire Him as an Employee?

21. Would You Still Hire Him as an Employee?

22. What about this candidate?

23. How About Her?

24. Common Risks of Internet Searches Problem: A search may identify an applicant’s protected characteristics such as medical information prohibited under the ADA, race, age, sexual orientation or marital status  Solution: Have a non-decision maker conduct the search and filter out protected information

25. Problem: Internet information may be inaccurate or misleading.  Solution: Carefully vet not only the candidate but the source of information. Try to confirm information obtained from the web. Common Risks of Internet Searches

26. Problem: You learn about an applicant’s bankruptcy.  Solution Do not use information regarding prior bankruptcies. Common Risks of Internet Searches

27. Problem: You learn about an applicant’s arrest history.  Solution Do not use information regarding arrests. Common Risks of Internet Searches

28. Problem: You learn about an applicant’s conviction.  Solution Use a background check that complies with the Fair Credit Reporting Act and state law. Common Risks of Internet Searches

29. Problem: You learn about an applicant’s workers’ compensation claim information.  Solution Do not use information regarding prior workers’ compensation claims. *Many states prohibit “retaliation” against current employees or applicants on the basis of a current or prior workers’ compensation claim. Common Risks of Internet Searches

30. Legal, Off-Duty Conduct  § 95 ‑ 28.2. Discrimination against persons for lawful use of lawful products during nonworking hours prohibited

31. Can an Employer Legally Decide not to Hire a Candidate Based on a Review of Social Networking Sites? Yes, but beware.

32. Tips  If you are going to use SNS for hiring decisions: (i)do so consistently (ii)rely on objective criteria (preferably from a job description) (iii)make sure to comply with all third-party terms of use agreements (iv)make sure candidates are notified in writing of the scope of the company’s screening practices

33.  www.jobvent.com www.jobvent.com  www.hateboss.com www.hateboss.com  www.workrant.com www.workrant.com  www.fthisjob.com www.fthisjob.com  www.rantasaurus-rex.com www.rantasaurus-rex.com And, remember, candidates may be using SNS to investigate you:

34. EXISTING LAWS

35. Current Federal Law Wiretap Act Prohibits “interception” of electronic communications Ordinary course of business exception One party consent Electronic Communications Privacy Act Prohibits interception of electronic communication

36. Stored Communications Act Prohibits unauthorized intrusions of stored electronic information Provider exception with notice to users National Labor Relations Act: Protected Speech Affords employees (even those who are not unionized) the right to engage in “concerted activity” Current Federal Law

37. Fourth Amendment Prohibits unreasonable searches and seizures First Amendment retaliation for speaking matters of public concern Current Federal Law

38. The Developing Case Law  In Van Alstyne v. Elec. Scriptorium Ltd., 560 F.3d 199 (4 th Cir. 2009), the company president accessed the Plaintiff’s personal AOL email account for more than a year after her termination  At the time, the company was pursuing several business torts against the Plaintiff  The Plaintiff filed suit, alleging a violation of the federal Stored Communications Act  The Fourth Circuit Court of Appeals held she could recover punitive damages and attorneys’ fees, even in the absence of actual damages

39. The Developing Case Law  In Pietrylo v. Hillstone Rest. Group d/b/a Houston’s (D.N.J., No. 06-5754, jury verdict 6/16/09) two New Jersey waiters were fired after their managers took offense to comments they posted on a password protected MySpace Account  A third employee claimed she was coerced to give the managers the password  The federal Stored Communications Act makes it unlawful to intentionally access stored electronic communications without authorization  The jury awarded $17,003 in damages  Defendant also liable for Plaintiff’s attorneys’ fees

40. The Developing Case Law In Konop v. Hawaiian Airlines Inc., 302 F.3d 868 (9th Cir. 2002), the employee created a website in which he posted various bulletins critical of his employer, its officers and the incumbent union. Through usernames and passwords, he enabled other employees, but not supervisors to have access to the site. A vice president discovered the website and obtained permission from an employee to log on. The president of the company threatened to sue the employee for defamation based on statements contained in the website.

41. The employee sued the employer alleging, among other things, violations of the Railway Labor Act. The court held that the objectionable statements, which included calling for other pilots to consider another union, did make the website a protected concerted activity. The Developing Case Law

42.  In Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (June 26, 2009), email letters were sent by the Plaintiff to her attorney using the company computer, but from her personal email account  After the Plaintiff filed suit, the Defendant obtained a forensic image of the hard drive from her computer and found the letters  The Defendant had clear policies that permitted it to do so  The court nonetheless held the attorney-client privilege substantially outweighed the Defendant’s argument the emails were company property because they were sent from a company laptop

43. The Developing Case Law  In Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441 (D. Conn. 2009), a school principal sued the Superintendent of Schools claiming the Superintendant had engaged in an improper search of her emails in violation of the Fourth Amendment as well as other claims under State and Federal Law  The principal had some concerns about how the Superintendent was administering special educational programs; as the dispute appeared to escalate, the principal took an extended medical leave, and she was temporarily replaced  While she was on leave, the Superintendent accessed her e-mail account and found attached a letter she had prepared to her attorney outlining her concerns about how the District was handling special education programs; this e-mail was forwarded and opened by the Superintendent

44. The Developing Case Law (Wolfe cont’d)  The school district had a policy which granted a “limited expectation of privacy” to the contents of employees’ personal files on the system; the district’s policies also referred to monitoring the system to determine if “disciplinary or legal violations occurred.”  The district’s policies also provided for “[r]outine maintenance and monitoring of the system may lead to discovery that the user has or is violating” the district’s rules  The court concluded the principal had a reasonable expectation of privacy in the emails because, among other things, the district did not “routinely monitor” the e-mail accounts of employees, and the policy provided that employees have a limited expectation of privacy

45. The Developing Case Law  In Quon v. Arch Wireless Operating Co. Inc., 554 F.3d 769 (9 th Cir. 2008) cert. granted (Dec. 14, 2009), police officers sued a wireless provider who provided texting services, when the wireless provider gave the employer transcripts of their text massages.  The text messages were sent via department issued equipment, and the employer had a policy requiring the City’s equipment to be used only for business purposes. The policy also stated the use of City computers would be monitored and use was restricted to business purposes.  Nevertheless, the department had never previously monitored the officers’ text messages prior to conducting this audit. Thus, even if the City had an applicable “business use” policy, as to the officers and the use of this equipment, it was largely unenforced.

46. The Developing Case Law (Quon cont’d)  The department instead adopted a practice of requiring each officer to pay a portion of the bill, over a set amount, without performing any audit as to whether the use of these devices was strictly for business  Despite the language of the policy covering City issued equipment and specifically stating “the user should have no expectation of privacy or confidentiality when using these resources;” the court ruled the practice of not previously auditing the messages created an impression text communications were private  The court also ruled the scope of the search was unreasonable, because less intrusive alternatives were available  This case is now on appeal to the U.S. Supreme Court

47. What can employers do? Employers have the right to monitor how their employees use their computer networks. Employers should ensure monitoring is based on legitimate needs and limited in scope to achieve those needs. Does the employee have a reasonable expectation of privacy and what has the employer done to limit that expectation? Give your employees notice of monitoring

48. ELECTRONIC COMMUNICATION/ TECHNOLOGY POLICIES

49. Many Employers are Still Behind the Policy Curve  45% of employers do not have a social media policy  28% are working on developing one  27% have a policy in place Source: The Buck Consultants/ IABC 2009 Employee Engagement Survey

50. So How Are Employers Dealing With These Risks? Visiting SNS During Work Hours: Prohibited completely 54% Permitted for business purposes only19% Permitted for limited personal use16% Permitted for any type of personal use10% Don't know/no answer 1% 100%

51. The Basics of a Policy Business use only/limited personal use Information created by or stored on the Company’s systems is the Company’s property Company reserves the right to monitor the use of electronic resources Remind employees that it expects employees to comport themselves professionally both on and off duty Remind employees of the company’s harassment and discrimination policy The storing of electronic information on portable devices without prior approval is prohibited Forwarding of Company information to personal e-mail accounts is prohibited No one may access, or attempt to obtain access to, another’s electronic communications without appropriate authorization

52. Other Elements of Policy The Company’s systems may not be used for any illegal activity, including downloading or distributing pirated software or data The Company’s policies governing the use of company logos, and other branding and identity apply to electronic communications The Company reserves the right to take disciplinary action if the employee’s electronic communications violate company policy Employees must abide by non-disclosure and confidentiality agreements/policies Employees prohibited from making defamatory or discriminatory comments when discussing the employer, superiors, co-workers and/or competitors Employees must comply with all other company policies with respect to their electronic communications (rules against conduct may result in harassment) Employees bear full responsibility for the material they post on personal blogs, social networks, Web sites, etc.

53. What about texting?  N.C. Gen. Stat. § 20-137.4A makes it illegal to text while driving.

54. Publish Your Policies  Employee Handbooks  Policy Manuals (as a stand alone policy)  Paycheck reminders  Annual or more frequent e-mail reminders  Post on Bulletin Boards

55. PRIVACY CONCERNS

56. What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites? In Fischer v. Mt. Olive Lutheran Church, 207 F. Supp 2d. 914 (W.D. Wis. 2002), co-workers overheard a children’s pastor discussing lewd acts over the church telephone. The head pastor hired a technology expert to examine the church’s computer and access a personal email account. The children’s pastor was terminated and sued the church for violating his The court found issues of material fact as to whether: (1) accessing the employee’s personal account would be highly offensive to a reasonable person; and (2) whether an employee’s email account is a place a reasonable person would consider private.

57. What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites? In Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15 2004), the court held an employee had no reasonable expectation of privacy in the internet websites he accessed while using his work computer. The plaintiff was fired for excessive internet use and storing sexually inappropriate emails, from his web account, on the company network. The plaintiff sued, claiming the company invaded his privacy by monitoring the internet sites he visited. The court rejected the plaintiff’s claim, distinguishing the facts in the Fischer case: The church accessed the contents of emails on the plaintiff’s personal email account by guessing at his password, but in this case, the company accessed the record of the addresses of the web pages the employee had visited.

58. What About Privacy in Personal Emails, Instant Messages, Blogs, and Websites?  Neither Fischer nor Thygeson resolved the issue of whether there is a reasonable expectation of privacy in content contained on third-party servers accessed through an employer’s computers. Arguably, an employer will be less likely to be found to have invaded an employee’s privacy if the employer:  monitors only its own networks;  does not monitor website content;  has an electronic communications policy in place which provides the employer may access emails at any time, and there is no expectation of privacy in such communications; and  requires employee acknowledgement of the policy.

59. Employee Privacy vs. Employer Monitoring How far can employers go in monitoring employees’ electronic communications? It depends. Private sector employees have no inherent constitutional right to privacy. However, employer conduct is limited by common law principles and federal and state privacy laws. The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures by the government. This protection does not apply to private sector employees. However, the right to privacy has been expanded to protect individuals from unreasonable searches by private parties, which can form the basis for other types of claims.

60. Employee Privacy vs. Employer Monitoring In Smyth v. Pillsbury Co., 914 F. Supp 97 (E.D. Pa. 1996), an employee was discharged for sending “inappropriate and unprofessional comments ” to a supervisor via the employer’s email system. The employer had assured its employees that all email communications would remain confidential and would not be reviewed and used as a basis for termination. Nonetheless, the employee’s communications were reviewed and used as the basis for termination. The employee sued the company for wrongful termination, claiming the employer violated “public policy” by invading his privacy. The court rejected the claim, reasoning that once the employee voluntarily communicated the comments to a second person (his supervisor) over the company email system utilized by the entire company, any reasonable expectation of privacy was lost.

61. Employee Privacy vs. Employer Monitoring Other courts have reached similar results: McLaren v. Microsoft Corp., 1999 Tex. App. LEXIS 4103 (Tex. App. May 28, 1999) – no reasonable expectation of privacy for password protected personal folders on company network accessed through a company computer. TBG Insurance Services Corp. v. Superior Ct., 96 Cal. App. 4th 443 (Cal Ct. App. 2002) – no reasonable expectation of privacy in an employer-owned computer located at employee’s home Garrity v. John Hancock Mutual Life Insurance Co., 2002 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) – no reasonable expectation of privacy in personal folders on company network and accessed Internet sites

62. Privacy in e-mails Courts more inclined to rule in favor of an employer if: Employer owns the computer and the e-mail system Employee voluntarily uses an employer’s network Employee consented to be monitored (usually based in written personnel policy)

63. MISUSE OF ELECTRONIC COMMUNICATION

64. Note to Self: Don’t friend your boss on facebook and then complain about your job:

65. Fired for Facebook in Philly! In March 2009, the Philadelphia Eagles fired a six year employee for posting a critical message about the team on his Facebook page. The employee wrote, “I am f---ing devastated about [Brian] Dawkins signing with Denver… Dam Eagles R Retarded!!” Despite removing the message and apologizing, the Eagles fired him in a telephone call.

66. On Company Time: Taxpayers’ Dime is Facebook and Twitter Time On October 29, 2009, the Boston Herald ran a series of articles on the Facebook and Twitter exploits of Amy Derjue, an employee working for City Council President, Michael Ross. Ms. Derjue was exposed for posting 40 Facebook postings from October 12th through the 28th during working hours. Only two postings were related to her job as Ross’ Communications Director. Perhaps most damaging, Ms. Derjue posted that she was going to sleep at the latest the City Council meeting.

67. How to get fired in 140 characters or less: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”

68. How to get fired in 140 characters or less: Connor Riley, a 22 year old college student sent out the tweet and received this tweeted response from Time Levad, “channel partner advocate” for Cisco Alert: “Who is the manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.”

69. Dealing with employees who misuse electronic communications  Considerations: Could the employee be protected under a whistleblower statute? Was the communication a “legal off-duty activity” which may protected by state law? Was the communication related to political activities or affiliations? Is the speech protected by the First Amendment? Was the communication protected Section 7 activity under the National Labor Relations Act? Would discipline of the employee violate any anti- discrimination or anti-retaliation laws?

70. Advice from an Employee Terminated for Blogging Terminations based on employee blogging have been termed being “dooced” after the blog, www.dooce.com.www.dooce.com “I started this website in February 2001. A year later I was fired from my job for this website because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET. If you are the boss, however, you should be aware that when you order Prada online and then talk about it out loud that you are making it very hard for those around you to take you seriously”

71. Follow-Up Questions? Contact Us.

72. SPEAKERS: Patricia L. Holland (919) 424-8608 Patricia.holland@jacksonlewis.com M. Robin Davis (919) 424-8609 Robin.davis@jacksonlewis.com Ann H. Smith (919) 424-8610 Ann.smith@jacksonlewis.com SPEAKERS: Patrick H. Flanagan (704) 940-3419 pflanagan@cshlaw.com Norwood P. Blanchard (910) 332-0944 nblanchard@cshlaw.com Ryan D. Bolick (704) 940-3416 rbolick@cshlaw.com