As we have previously mentioned, an employer’s use of social media content has its risks and legal limitations. However, under certain circumstances, an employee’s social media activity may prove relevant to and warrant disciplinary action. A recent FMLA decision illustrates how. Continue reading this entry
A recent decision by the NLRB provides insight and guidance to employers who are struggling to deal with the ever-expanding issues arising from employees’ use of social media. The Karl Knauz Motors case involved a BMW dealer that held an event called the BMW Ultimate Driving Experience, in an attempt to stimulate car sales. One of the dealership’s sales representatives was unhappy that his bosses were only serving hot dogs and chips at the event. Apparently, this sales representative believed that the target audience of potential BMW customers deserved better. In protest, the sales representative posted critical comments about the event on his Facebook page. Continue reading this entry
Recently, the National Labor Relations Board (NLRB) has renewed its scrutiny of retaliatory activity by employers based upon employees’ usage of social media. On January 24, 2012, the Associate General Counsel of the NLRB issued a second report on social media cases, which discusses common features of companies’ social media policies that, in the NLRB’s view, are overbroad under the National Labor Relations Act (NLRA). According to the NLRB, improper social media policies include, among others, prohibitions on employees making “disparaging comments about the company” using social media or otherwise casting an employer or fellow employees in a “defamatory” light, prohibiting “inappropriate conversation” by employees on social media, and requiring that employees first bring any “work-related concerns” to their employer before raising those concerns in a social media platform.Continue reading this entry
Employers are increasing the review of applicants’ social media sites as part of their standard hiring processes. A 2009 poll revealed that as many as 45 percent of employers regularly screen applicants through social media sites such as Facebook and Twitter, and many of these employers have declined to hire candidates because the sites contained provocative or inappropriate photographs, drinking or drug use, negative comments about prior employers, discriminatory comments, and so forth. While laws like the Electronic Communications Privacy Act require permission to access sites and government organizations such as the NLRB have policed discipline based upon social media activity, no state has banned the review of applicants’ social media sites until now.Continue reading this entry
Increasingly, employers are wrestling with how best to monitor and limit employees’ use of the Internet to conduct non-work-related activities. The issue may become more pressing in an FLSA overtime case, when an employer suspects (or an employee admits) that he or she spent a considerable amount of time during the work day using the Internet to conduct non-work-related activities. In such instances, the employer must decide how best to obtain proof of the employee’s conduct. One option may be issuing third-party subpoenas to the various Web sites and online services utilized by the employee, but that path is not without difficulty.
Social media and blogging are quickly becoming areas of focus and concern for employers. In the past, we have encouraged employers to create social media and blogging policies and to be watchful of the content employees are submitting through these avenues, given concerns, among others, about protecting the status of confidential and trade secret information. We also have discussed concerns arising from the potential for use of social media as evidence. See Labor and Employment Law Weekly Update. A recent case shows another risk associated with social media and blogging — the potential waiver of the attorney-client privilege.
Everything you say, post, IM, tweet, or text may be used against you, or your employee.
Social media evidence has changed the landscape of discovery in employment law cases. If an employer suspects an employee is lying, engaging in FMLA abuse, or hunting for a new job, the admission might be in cyberspace. With more than 500 million users on Facebook alone, chances are that the employee has a social media account. Whether Facebook, Twitter, MySpace, LinkedIn, or plain old texting, social media users are uninhibited when it comes to broadcasting their thoughts, pictures, and videos to the world. Those broadcasts can get the unscrupulous worker in big trouble.
The evidence comes with dates, time stamps, and even embedded information that users may not even know about. For example, many cell phone cameras now digitally stamp each photo taken with precise geographical data (“geotagging”). As discussed at a UC Davis Panel, this content is being used as evidence, and the evidence lasts virtually forever.
According to a discovery order in EEOC v. Simply Storage Mgmt., LLC, even if the account is “private,” the information on a litigant’s social media Web sites can be used in a lawsuit.
Simply Storage, a sexual harassment case, included a claim for severe emotional distress. The judge reasoned that social media, whether written text or pictures, might reveal information about the emotional state of the claimants. Therefore, the judge allowed discovery of social media content that revealed “emotions.” The allowable discovery was not limited to content that directly mentioned emotions, but also included communication that referred or related to events that normally “produce a significant emotion, feeling or mental state.” Specifically, that includes relevant “verbal communications” (wall posts, status update, comments, groups or causes joined, activity streams, and blog entries), third-party communication, photos, and videos. To preserve the privacy of the parties, the court issued a protective order limiting the disclosure of the information only to those involved in the lawsuit.
Social media is now used as evidence in all areas of law. People have posted pictures resulting in gun possession charges, updated statuses confirming drug use, and tweeted their way to divorce. The door to this new area of discovery is open, and employers can take advantage of it.