SPEAKERS: Patrick H. Flanagan (704) 940-3419 pflanagan@cshlaw Norwood P. Blanchard

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

8. Social Networking Sites: All the Rage

9. 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

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

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

17. WHAT??

18. Employment Issues Raised by the Internet • 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?

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. Common Risks of Internet Searches • 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.

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

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

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

29. Common Risks of Internet Searches • Problem:You learn about an applicant’s workers’ compensation claim information. • SolutionDo 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.

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

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

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

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

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. Current Federal Law • 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”

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

38. The Developing Case Law • In Van Alstyne v. Elec. Scriptorium Ltd., 560 F.3d 199 (4th 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 Developing Case Law • 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.

42. The Developing Case Law • 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 (9th 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 DealingWith These Risks? Visiting SNS During Work Hours: Prohibited completely54% Permitted for business purposes only 19% Permitted for limited personal use 16% Permitted for any type of personal use 10% Don't know/no answer     1% 100%