Title: Laws affecting the monitoring of company information systems (Ann Smith Presentation)
1SPEAKERS Patrick H. Flanagan (704)
940-3419 pflanagan_at_cshlaw.com Norwood P.
Blanchard (910) 332-0944 nblanchard_at_cshlaw.com Ry
an D. Bolick (704) 940-3416 rbolick_at_cshlaw.com
SPEAKERS Patricia L. Holland (919)
424-8608 Patricia.holland_at_jacksonlewis.com M.
Robin Davis (919) 424-8609 Robin.davis_at_jacksonlewi
s.com Ann H. Smith (919) 424-8610 Ann.smith_at_jacks
onlewis.com
2Blogging, Facebook, Tsexting and Twitter in
the Work Place
3What 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
4What 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.
5Social Networking Sites All the Rage
- Two-thirds of the worlds 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)
6Some 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
7Social Networking SitesAll the Rage
8Social Networking Sites All the Rage
9Social Networking Sites All the Rage
10Whats 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
employers business - 61 of employees say that even if employers are
monitoring their social networking profiles or
activities, they wont change what theyre doing
online - 74 of employees say its a way to damage a
companys reputation on social media - Source 2009 Deloitte Ethics Workplace Survey
11The Variety of Electronic Forums Increases the
Importance of Employer Vigilance
- E-mail
- Blogging
- YouTube
- Host sites
- Social Networking Sites
12Is this the Image You Want for Your Employer?
13What about this?
14Its Amazing What Folks Put on the Internet for
Everyone to See
15Its Amazing What Folks Put on the Internet for
Everyone to See
16Its Amazing What Folks Put on the Internet for
Everyone to See
17WHAT??
18Employment 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?
19HIRING DECISIONS
20Would You Hire Him as an Employee?
21Would You Still Hire Him as an Employee?
22What about this candidate?
23How About Her?
24Common Risks of Internet Searches
- Problem A search may identify an applicants
protected characteristics such as medical
information prohibited under the ADA, race, age,
sexual orientation or marital status - SolutionHave a non-decision maker conduct the
search and filter out protected information
25Common Risks of Internet Searches
- ProblemInternet information may be inaccurate
or misleading. - SolutionCarefully vet not only the candidate
but the source of information. Try to confirm
information obtained from the web.
26Common Risks of Internet Searches
- ProblemYou learn about an applicants
bankruptcy. - SolutionDo not use information regarding prior
bankruptcies.
27Common Risks of Internet Searches
- ProblemYou learn about an applicants arrest
history. - SolutionDo not use information regarding arrests.
28Common Risks of Internet Searches
- ProblemYou learn about an applicants
conviction. - SolutionUse a background check that complies
with the Fair Credit Reporting Act and state law.
29Common Risks of Internet Searches
- ProblemYou learn about an applicants 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.
30Legal, Off-Duty Conduct
- 95-28.2. Discrimination against persons for
lawful use of lawful products during nonworking
hours prohibited
31Can an Employer Legally Decide not to Hire a
Candidate Based on a Review of Social Networking
Sites?
32Tips
- 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 companys screening practices
33And, 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
34EXISTING LAWS
35Current 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
36Current 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
37Current Federal Law
- Fourth Amendment
- Prohibits unreasonable searches and seizures
- First Amendment
- retaliation for speaking matters of public
concern
38The Developing Case Law
- In Van Alstyne v. Elec. Scriptorium Ltd., 560
F.3d 199 (4th Cir. 2009), the company president
accessed the Plaintiffs 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
39The Developing Case Law
- In Pietrylo v. Hillstone Rest. Group d/b/a
Houstons (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 Plaintiffs attorneys
fees
40The 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.
41The 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.
42The 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
Defendants argument the emails were company
property because they were sent from a company
laptop
43The 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
44The Developing Case Law (Wolfe contd)
- The school district had a policy which granted a
limited expectation of privacy to the contents
of employees personal files on the system the
districts policies also referred to monitoring
the system to determine if disciplinary or legal
violations occurred. - The districts policies also provided for
routine maintenance and monitoring of the
system may lead to discovery that the user has or
is violating the districts 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
45The 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 Citys 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.
46The Developing Case Law (Quon contd)
- 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
47What 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
48ELECTRONIC COMMUNICATION/TECHNOLOGY POLICIES
49Many 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
50So How Are Employers DealingWith These Risks?
- Visiting SNS During Work Hours
- Prohibited completely 54
- 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
51The Basics of a Policy
- Business use only/limited personal use
- Information created by or stored on the Companys
systems is the Companys 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 companys 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, anothers electronic communications without
appropriate authorization
52Other Elements of Policy
- The Companys systems may not be used for any
illegal activity, including downloading or
distributing pirated software or data - The Companys 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 employees 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.
53What about texting?
- N.C. Gen. Stat. 20-137.4A makes it illegal to
text while driving.
54Publish Your Policies
- Employee Handbooks
- Policy Manuals (as a stand alone policy)
- Paycheck reminders
- Annual or more frequent e-mail reminders
- Post on Bulletin Boards
55PRIVACY CONCERNS
56What 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 childrens pastor discussing lewd
acts over the church telephone. The head pastor
hired a technology expert to examine the churchs
computer and access a personal email account. The
childrens pastor was terminated and sued the
church for violating his - The court found issues of material fact as to
whether - (1) accessing the employees personal account
would be highly offensive to a reasonable person - and (2) whether an employees email account is a
place a reasonable person would consider private.
57What 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 plaintiffs claim,
distinguishing the facts in the Fischer case
The church accessed the contents of emails on the
plaintiffs 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.
58What 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 employers computers.
Arguably, an employer will be less likely to be
found to have invaded an employees 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.
59Employee 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.
60Employee 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 employers 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 employees
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.
61Employee 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 employees
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
62Privacy 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 employers network
- Employee consented to be monitored (usually based
in written personnel policy)
63MISUSE OF ELECTRONIC COMMUNICATION
64Note to Self
- Dont friend your boss on facebook and then
complain about your job
65Fired 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.
66On 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.
67How 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.
68How 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. Im sure they would love to
know that you will hate the work. We here at
Cisco are versed in the web.
69Dealing 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?
70Advice from an Employee Terminated for Blogging
- Terminations based on employee blogging have been
termed being dooced after the blog,
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
71Follow-Up Questions? Contact Us.
72SPEAKERS Patrick H. Flanagan (704)
940-3419 pflanagan_at_cshlaw.com Norwood P.
Blanchard (910) 332-0944 nblanchard_at_cshlaw.com Ry
an D. Bolick (704) 940-3416 rbolick_at_cshlaw.com
SPEAKERS Patricia L. Holland (919)
424-8608 Patricia.holland_at_jacksonlewis.com M.
Robin Davis (919) 424-8609 Robin.davis_at_jacksonlewi
s.com Ann H. Smith (919) 424-8610 Ann.smith_at_jacks
onlewis.com