Social Media Archives - Page 2 of 4

Employee’s Deactivation Of Facebook Account Leads To Sanctions

The latest Facebook case highlights how courts now intend to hold parties accountable when it comes to preserving their personal social media accounts during litigation. Recently, a federal court ruled that a plaintiff’s deletion of his Facebook account during discovery constituted spoliation of evidence and warranted an “adverse inference” instruction against him at trial. Gatto v. United Airlines and Allied Aviation Servs., et al. , No. 10-CV-1090 (D.N.J. March 25, 2013).

The plaintiff, a ground operations supervisor at JFK Airport, allegedly suffered permanent disabling injuries from an accident at work which he claimed limited his physical and social activities. Defendants sought discovery related to Plaintiff’s damages, including documents related to his social media accounts.

Although Plaintiff provided Defendants with the signed authorization for release of information from certain social networking sites and other online services such as eBay, he failed to provide an authorization for his Facebook account. The magistrate judge ultimately ordered Plaintiff to execute the Facebook authorization, and Plaintiff agreed to change his Facebook password and to disclose the password to defense counsel for the purpose of accessing documents and information from Facebook. Defense counsel briefly accessed the account and printed some portion of the Facebook home page. Facebook then notified Plaintiff that an unfamiliar IP address had accessed his account. Shortly thereafter, Plaintiff “deactivated” his account, causing Facebook to permanently delete the account 14 days later in accordance with its policy.

Defendants moved for spoliation of evidence sanctions, claiming that the lost Facebook postings contradicted Plaintiff’s claims about his restricted social activities. In response, Plaintiff argued that he had acted reasonably in deactivating his account because he did know it was defense counsel accessing his page. Moreover, the permanent deletion was the result of Facebook’s “automatically” deleting it. The court, however, found that the Facebook account was within Plaintiff’s control, and that “[e]ven if Plaintiff did not intend to deprive the defendants of the information associated with his Facebook account, there is no dispute that plaintiff intentionally deactivated the account,” which resulted in the permanent loss of relevant evidence. Thus, the court granted Defendants’ request for an “adverse inference” instruction (but declined to award legal fees as a further sanction).

The Gatto decision not only affirms that social media is discoverable by employers, but also teaches that plaintiffs who fail to preserve relevant social media data will face harsh penalties. Employers are reminded to specifically seek relevant social media (Facebook, Twitter, blogs, LinkedIn accounts) in their discovery requests since such sources may provide employers with sufficient evidence to rebut an employee’s claims. This case also serves as a reminder and a warning to employers that the principles of evidence preservation apply to social media, and employers should take steps very early in the litigation to preserve its own social media content as it pertains to the matter.

Facebook Firings – An Old Approach to the New Issue of the Virtual Water Cooler

The National Labor Relations Board (“Board”) issued its second decision on a firing over Facebook posts on Wednesday, December 19, 2012. The Board, avowing its commitment to the idea that speech on a personal, non-work-related social media outlet should be treated the same way as discussions on work premises, ordered a non-profit organization to reinstate five employees who were fired over Facebook posts. In a 3-1 decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, 12/14/12 [released 12/19/12], the Board affirmed the administrative law judge’s ruling that the employer violated the National Labor Relations Act (“NLRA”) when it terminated five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance.

While noting that at issue was a novel mode of employee communication, the Board agreed with the ALJ that the appropriate analytical framework for resolving the discharge dispute had long been settled under Meyers Industries and its progeny.[1] Under the Meyers Industries analysis, an employee’s discipline or discharge is unlawful if it is motivated by an employee’s concerted, NLRA-protected activity and if the employer knows the activity was concerted. The underlying ALJ ruling in Ortiz v. Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (NLRB Sept. 2, 2011) issued a landmark decision when it marked the first time a Board judge had ruled on a social media-related employment decision.

Member Brian E. Hayes, the sole dissenter and Republican board member, disagreed with the majority view that the employees’ comments were made for mutual aid and protection. However, writing shortly before his term on the board ended Dec. 16, he agreed that the Meyers Industries framework was the right analysis to use for evaluating whether the activity on Facebook is protected and concerted. In light of this decision, it is clear that concerted activity is protected whether spoken in the workplace or via the virtual water cooler. Even with the difference in type and style of communication used in social media outlets, the Board is not adopting any new rules or framework within which to evaluate the speech.

Additionally, this decision serves as a warning to employers who have been using their policies to justify adverse employment actions when faced with potentially protected activity. The Board majority in this case rejected the employer’s defense that these five employees had violated its zero-tolerance policy on bullying and harassment when they disagreed with another co-worker that the company was not doing enough to help its clients. The Board held that the employees were taking a first step toward group action to defend themselves against another co-worker’s accusations made to management and hence, was protected, concerted activity. Employers who seek to discipline an employee for comments he or she makes on social media sources must therefore not merely rely on their policy, but they must also ensure that their policy is valid in that, among other things, it does not discourage protected, concerted activity.

[1] Meyers Industries, 268 NLRB 493 (1983), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

New Year, New Laws for California Employers – Employer Access to Social Media

California employers received more attention in 2012 with 554 bills introduced in the legislature mentioning “employer,” compared to 346 in 2011. Fortunately, most bills do not become law. However, those that do bring with them new challenges for California employers. As 2013 draws near we begin our series, “New Year, New Laws for California Employers. Prepared by Mark Terman, partner in the Los Angeles office, this series will take a look at some of the significant new regulations affecting private employers doing business in California.

Employer Access to Social Media

Social media is everywhere. Facebook, for example, claims 1 billion users with more than 140 billion friend connections among them. For some employers, this may be too attractive a source of information about employees and job applicants. Balancing employee expectations of privacy against employer business protection needs, AB 1844 prohibits employers from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing personal social media or to access personal social media in the presence of the employer or to divulge any personal social media.

It also prohibits employers from discharging, disciplining (or threatening to do so) or retaliating against an employee or applicant for refusing a demand or request by the employer that violates this law.

Excepted from this new law are employer requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

Nothing in this law limits an employer from requiring or requesting an employee to disclose a username, password or other method for the purpose of accessing an employer-issued electronic device.

At the same time, the National Labor Relations Board and its counsel continue to opine on when an employer’s policies

or actions regarding employee use of social media interfere with the protection of concerted activity of employees to, for example, discuss wages and working conditions, whether it involves union activity.

The NLRB general counsel’s third and most recent report, which may surprise nonunion employers, is at www.calcpa.org/ NLRBsocialmediapolicies.

Deconstructing Costco

Much has been written about the NLRB’s recent holding in the seminal Costco case that the company’s facially neutral social media policy prohibiting postings on the Internet that damage the Company or any person’s reputation violates Section 8(a)(1) of the Act. But it is also important to understand how the Board came to decide that case in order to better evaluate the appropriate employer response.

The controlling law concerning the validity of facially neutral work rules was established in the 2004 decision in Lutheran Heritage Village in which the Board held that in evaluating such rules it must determine whether employees “would reasonably construe” the language as restricting their Section 7 to engage in protected discussions of their terms and conditions of employment, and recognized that the mere fact that a rule could be read as inhibiting employee rights is insufficient to support a finding that the rule is unlawful. The Board also observed that it should apply a “reasonable” interpretation to such rules without “reading particular phrases in isolation” and without assuming the employer intended to interfere with protected rights.

When the Costco case was tried before an Administrative Law Judge in 2010, the Acting General Counsel charged the employer with violating Section 8(a)(1) with respect to a number of provisions in its Electronic Communications and Technology Policy, including the requirement that employees use “appropriate business decorum” on social media sites and the prohibition of postings that “damage” the company or anyone’s reputation, because there was no limiting disclaimer to advise the employees that the rule was not intended to restrict their protected rights. In this respect, the Acting General Counsel argued that the ALJ should reject the Lutheran Heritage Village “would reasonably construe” standard and apply instead the standard from the dissenting opinion in that case by former Members Liebman and Walsh – that an ambiguous rule that does not include a disclaimer is unlawful if it could be perceived as inhibiting Section 7 rights – because the dissenting opinion would likely be accepted by the majority of the newly composed Board. The ALJ rightly rejected that proposition, and specifically recognized that under the controlling Lutheran Heritage Village standard the Board “will not conclude that a reasonable employee would read the rule to [prohibit protected] activity simply because the rule could be interpreted that way . . . [or] could conceivably be read to” encompass protected conduct. The ALJ then determined that neither Costco rule was unlawful under the applicable “would reasonably construe” standard because reasonable employees would understand that the rules were intended to promote civility rather than restrict Section 7 activity.

In its decision on appeal, the newly composed Board majority adopted the ALJ’s reasoning that Costco’s “appropriate business decorum” rule was lawful, but found the rule prohibiting comments damaging to the company to be unlawful. In so finding, the Board purports to recognize the continued validity of Lutheran Heritage Village, and gives lip service to the “would reasonably construe” standard, but tacitly applied the “could be read” standard advocated by the Acting General Counsel. In this regard, the Board adopted the approach of the Liebman-Walsh dissent by holding that in the absence of a limiting disclaimer the rule “allows employees to reasonably assume that it pertains to” protected comments critical of the company’s management. It is significant that the Board did not engage in any analysis to determine whether the company’s employees “would reasonably construe” the language of the rule as restricting or prohibiting protected communications, but held the rule to be unlawful only because employees could assume it would in the absence of a limiting disclosure.

The Board has applied the “could be” read standard in two more recent cases. First, in Flex Frac Logistics, LLC, the Board specifically referred to ambiguous work rules as “rules that reasonably could be read to” inhibit Section 7 rights. Then in Karl Knauz Motors, Inc., the Board rejected the employer’s Courtesy Rule, which required employees to be courteous in their interactions with customers and coworkers, because it also prohibited employees from being disrespectful or using profanity. Again giving lip service to Lutheran Heritage Village but applying the standard of the Liebman-Walsh dissent, the Board focused on the “disrespectful” language in isolation and held that in the absence of a limiting disclaimer the rule was unlawful because employees “would reasonably assume” that the employer would punish them for being disrespectful if they raised questions about their terms or conditions of employment. That approach ignores the requirement that rules should be looked at from the perspective of whether employees would reasonably read the entire rule, in context, as restricting their right to discuss terms and conditions of employment, not whether someone – members of the Acting General Counsel’s staff or Board Members – could theoretically reach that conclusion as an academic legal exercise.

In light of these opinions and the Acting General Counsel’s continued focus on non-union social media policies, employers should expect that the Board will continue to take an expansive approach in holding such policies unlawful if they could be read as restricting protected communications. Because the Costco majority adopted the Liebman-Walsh reasoning that it is the absence of an accompanying disclaimer that permits employees to assume that facially neutral rules could be applied to restrict their right to engage in protected activity, employers should at a minimum consider including specific limiting disclaimers in those sections of their policies to make clear that the prohibitions are not intended to restrict or interfere with protected communications.

Who Owns a Social Media Account? Court Rules that Employer Did Not Violate the Computer Fraud and Abuse Act (CFAA) by Taking Over a LinkedIn Account

A recent summary judgment ruling issued out of the Eastern District of Pennsylvania, Eagle v. Morgan, et al., CIV-No. 11-4303, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012), highlights the need for employers to have clear policies regarding social media accounts established and used on the employer’s behalf. While plaintiff Dr. Eagle was president of defendant Edcomm, a banking education company, she created a LinkedIn account and used that account to promote Edcomm’s banking education services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships. Edcomm contended that it had an unwritten informal policy of “owning” the LinkedIn accounts of its former employees after they left the company. Dr. Eagle was terminated and subsequently denied access to her LinkedIn account by Edcomm, which had accessed her account, changed her password and altered her LinkedIn profile to display the company’s new president’s name and photograph while retaining some elements of Dr. Eagle’s profile.　 Dr. Eagle ultimately regained control of her LinkedIn account but nonetheless sued Edcomm and its employees, alleging, among other things, violations of the Computer Fraud and Abuse Act and the Lanham Act, and invasion of privacy by misappropriation of her identity.

On October 4, 2012, the district court granted Edcomm’s motion for summary judgment to dismiss Dr. Eagle’s federal claims. Holding that a reasonable jury could not find that Dr. Eagle had suffered a “legally cognizable loss or damage in the brief period in which her LinkedIn Account was accessed and controlled by Edcomm,” the district dismissed her CFAA claim. The district court concluded that Dr. Eagle’s claim of lost business opportunities and damage to her reputation were “speculative” at best and “not compensable under the CFAA,” and that even if types of damages were recoverable, she failed to present any evidence to quantify these damages. The district court also dismissed Dr. Eagle’s claims under the Lanham Act, finding that she had failed to produce any evidence of a likelihood of confusion to the public by switching her name and photo with that of her successor. However, the district court retained jurisdiction over Dr. Eagle’s remaining state law claims as well as Edcomm’s counterclaims (a conversion claim over a laptop and a misappropriation claim that asserts that Edcomm was the rightful owner of the LinkedIn account).

Given the rapidly evolving standards regarding employee/employer use of social media websites for marketing and business development (both for the employer’s business and the employee’s reputation), employers should take a proactive role in developing clear guidelines regarding the creation, control and ownership of business-related social media accounts.　 Policies stating, for example, that the company owns the social media site can help employers avoid disputes with departing employees. In addition, during exit interviews with departing employees, employers should consider inquiring generally about the employee’s social networking activities as they relate to his or her employment. Ask employees whether any client or customer information exists on their social networking accounts. If it does, request that this information be removed immediately. If an employer learns of an employee’s social networking activity that it believes violates a non-solicitation or other restrictive covenant, consider sending a cease and desist notice, including a specific request for the removal of any and all offending information. Finally, be prepared to adapt to changing norms, laws, rules and regulations affecting or regulating the use of social media sites.