Employment Law Commentary
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Employment Law
Commentary
Volume 22, No. 1 January 2010
Social Media and the Workplace
By John R. Lanham
Social media has undergone exponential an employee could inadvertently share
growth over the past few years, with confidential business information, such
profound consequences for employers. as a pending acquisition, that harms the
Social media – characterized by employer or raises securities law issues.
accessibility, interactivity, and Management increasingly recognizes
technology – includes blogs, wikis these risks. One recent survey revealed
(interlinked collaborative web sites), that sixty percent of executives say
photo-sharing sites, and Internet forums they have “‘a right to know’ how their
and extends to social networking utilities employees portray themselves and their
like MySpace and Facebook. The public organizations online.”3 Only seventeen
has turned to these information outlets percent of the executives, however,
with surprising speed. For example, said their company has a program for
Facebook had approximately 5.5 million “monitoring and mitigating risks related
active members in December 2005.1 In to social networks.”4 Such an approach
December 2009, it reached in excess to employees’ online conduct, combined
2
of 350 million active members. In with the ever-increasing presence of
addition to access via computers, many social media, creates a significant liability
social media sites are accessible using risk for employers.
mobile phone–based applications or,
like Twitter, through mobile phone SMS This alert provides a sampling of U.S.
messaging. This allows for immediate, state and federal laws that may affect a
and often public, broadcasting of users’ company’s monitoring of its employees’
opinions or conduct. involvement in social media. These
laws can vary significantly between
Social media technology has a significant jurisdictions, so it is important that
impact on the workplace. Employees an employer discuss this subject
may upload personal information that an with counsel. 5 Employees’ online
organization believes is inconsistent with communications may gain legal
its image or mission. Social media also protection based on either the privacy or
provides a venue for groups of employees the substance of the communications. In
to discuss work-related issues outside order to avoid exposure to considerable
of management oversight. Moreover, liability, employers should develop anemploy me nt law co mme ntary
approach to personal online conduct content they post to a public site. For the issue of whether the manager’s
and apply that approach in both example, a California court of appeal informal promises created a
policy and practice. held that a MySpace user had no reasonable expectation of privacy.
reasonable expectation of privacy for a
I. Privacy Issues post she made on her page, despite the Employers should check with
Social media and electronic fact that her MySpace page identified counsel to determine the parameters
communications raise unique issues her by first name only and that she of protection of the common law
for workplace privacy. Employees in deleted the post after six days.6 Some and state constitutions where they
the U.S. may derive privacy rights social media sites, however, allow do business. In addition, some
from an array of federal and state users to restrict access to information states require employers to provide
laws. This section provides examples to a select group of individuals or use notice to employees who are under
of these laws, which include common- password protection. Under these electronic monitoring.10 Employers
law privacy rights, state constitutional circumstances, at least one court has should therefore have a clear policy
rights, and statutory restrictions. suggested that an employee may have a about electronic monitoring.
reasonable expectation of the privacy of
A. Common Law and State B. Statutory Privacy Protections
the communications or information.7
Constitutional Privacy Protections
Employees’ electronic
Most states permit common-law Second, a court is likely to give
communications may also trigger
claims for invasion of privacy, and employee handbooks and company
statutory privacy protections.
some states, such as California, also policies weight in determining
Electronic and wire communications
provide constitutional privacy rights whether an employee had a
are subject to a variety of laws,
that may apply to private-sector reasonable expectation of privacy.
This is particularly the case when including the Federal Wiretap Act,
employers. These legal theories
a handbook clearly states that the Stored Communications Act
consider whether the individual
had a reasonable expectation of company property is not for private (“SCA”),11 and state surveillance
privacy and whether there was a use, and that the company may and wiretap statutes. The most
serious or offensive invasion of that monitor employee e-mail and common cause of action for social
expectation of privacy. From an computer usage. 8 These decisions media–related claims has been the
employer’s perspective in monitoring underscore the importance of Stored Communications Act (SCA).
social media use, a key factor is adopting a social media and The SCA prohibits the knowing or
whether employees have a reasonable electronic communications intentional unauthorized access to “a
expectation of privacy in their social policy. Employers should note, facility through which an electronic
media communications. Employees’ however, that a court may consider
communication service is provided.”12
reasonable expectations of privacy management’s practices as well
Practically speaking, this includes
may be affected by both the nature as company policy. In Quon v.
unauthorized access to a password-
of the social media communication City of Ontario, the Ninth Circuit
protected e-mail account or social
found that a manager’s informal
and the employer’s electronic networking group. State statutes
promise about privacy created a
communications policy.
reasonable expectation of privacy, covering electronic communications
First, many social media sites make notwithstanding a written policy and wiretaps also exist, so employers
user content available to the public. that reserved the employer’s rights should consult with counsel
Typically, employees do not have a to monitor.9 The U.S. Supreme concerning all of the surveillance laws
reasonable expectation of privacy for Court recently granted certiorari on to which they may be subject.
morrison & foerster llp — page 2employme nt law co mme ntary
The SCA permits a person to access to a website because, while he so employers should consult with
authorize a third party’s access to was on a list of people allowed access, counsel if they operate in a state
stored electronic communications if there was no evidence that he had with an off-duty conduct statute.
(i) the person is the provider of the actually logged in to the website.16 Generally, however, these statutes
service, or (ii) the person is a user of Moreover, the consequences of a restrict an employer’s ability to
the service and the communication SCA violation can be serious. The discipline employees for engaging
is from or intended for that user. 13 statute creates criminal liability for in legal activities while not at work.
Accordingly, the SCA usually intentional unauthorized access and In the social media context, these
allows an employer to access stored courts may allow recovery of punitive statutes may, for example, limit an
communications located on its damages and attorney fees without employer’s ability to terminate an
own systems. In comparison, the a showing of actual damages.17 employee who posts photographs
SCA limits an employer’s ability to State statutes may contain similar of himself drinking alcohol and
access stored communications that restrictions and penalties. smoking tobacco.
are maintained by a third-party
II. Protections Based New York’s off-duty conduct
service provider, without the user’s on the Substance of the restricts employers’ ability to
authorization.14 In theory, therefore, Communication
take adverse employment action
an employee could authorize a In addition to privacy (including hiring, pay, workplace
supervisor to access a password- considerations, employers setting conditions, and termination) against
protected third-party social media a social media policy should also employees engaged in recreational
site, such as by providing his or consider laws that protect the activities.19 The statute contains
her login information. In practice, substance of employees’ online exceptions, such as restrictions based
however, employers must exercise conduct. It will surprise some on conflicts with the employer’s
caution with this exception. A jury employers to learn that, even in a business interests. In application,
recently found that an employer state with at-will employment, there courts have taken a fairly limited
violated the SCA by accessing a may be restrictions on disciplining view of what constitutes a
restricted-access employee chat group employees for their comments and “recreational activity.” For example,
on MySpace, using an employee’s actions. For example, in some courts have found romantic
login information. The jury states employers are restricted in relationships 20 and picketing 21 not
rejected the employer’s argument disciplining employees for their legal entitled to protection.
that the employee had authorized conduct outside the workplace. In
her managers to access the chat addition, employers need to carefully Colorado’s off-duty conduct statute
group, following the employee’s approach statements regarding is slightly narrower than New
testimony that she felt she “had” to workplace conditions or the terms of York’s version, as the Colorado
give management her password to a employment, even if they are critical statute only protects employees from
private MySpace group and that she of the company. termination. The Colorado statute
thought she “probably would have also provides three exceptions for:
gotten in trouble” if she did not turn A. Off-Duty Conduct Statutes (i) restrictions relating to a bona
over the password. 15
Additionally, Some states, including Colorado and fide occupational qualification; (ii)
courts have interpreted this exception New York, have enacted legislation restrictions relating to employment
narrowly. For example, the Ninth to protect employees’ conduct activities of a particular employee
Circuit concluded that an employee outside the workplace.18 These or group of employees rather than
was not a “user” who could authorize statutes vary in scope and effect, all employees; and (iii) restrictions
morrison & foerster llp — page 3employ me nt law co mme ntary
necessary to avoid a conflict of B. National Labor Relations Act report wrongdoing within their
interest or the appearance of a In addition to legal off-site conduct, employer company. For example,
conflict of interest with employees’ employees’ communications both the Sarbanes-Oxley Act and
responsibilities. 22 In Marsh v. Delta regarding the terms and conditions OSHA protect whistleblowing
Air Lines, a Colorado U.S. District of employment may enjoy legal employees.29 Many states have
Court found that an implied duty protection. The National Labor also enacted protections for
of loyalty with regard to public Relations Act (“NLR A”) protects whistleblowers. Courts have not
communications was a bona fide employees involved in unions and clearly established that whistleblower
occupational qualification under collective bargaining. In addition, protections apply to social media,
the statute. 23 The court then the NLR A gives employees the and it is not certain that a social
concluded that an employee’s letter media communication satisfies some
right to “engage in other concerted
in a local newspaper, criticizing statutes’ requirements to assist in an
activities for the purpose of
Delta’s customer service, breached investigation. Nonetheless, employers
collective bargaining or other
his duty of loyalty and that the should take whistleblower protections
mutual aid or protection.”25 This
off-duty conduct statute did not into account when creating a social
does not mean, however, that
protect him from termination. But media policy. This will also provide
employees have carte blanche to
it is insufficient to assume that an a good opportunity for assessing
criticize an employer under the
employee may be terminated for internal reporting systems and
NLR A. Generally, the independent
off-site comments that relate to his reminding employees about the
actions of a single employee are
or her employment. A Colorado proper ways to raise their concerns.
not considered concerted activity,
appellate court recently questioned
unless he or she is attempting to Additionally, federal and state anti-
Marsh’s precedential value and
enlist other employees, or is acting discrimination laws may restrict
read the off-duty conduct statute
based on prior concerted activity. 26 an employer’s ability to discipline
to protect an employee complaint
The employee’s actions must also employees for communications
about workplace safety made to
relate to the terms and conditions that could be viewed as complaints
OSHA on the employee’s personal
of employment. 27 Additionally, of discrimination. For instance,
time. 24 Colorado employers could
egregious or profane statements not Title VII of the Civil Rights Act
try to avoid this uncertainty by
made “in the heat of discussion” may of 1964 makes it “an unlawful
establishing a handbook policy that
not be protected, even if the conduct employment practice for an employer
employees owe the company a duty
occurred in the course of otherwise to discriminate against any of his
of loyalty.
protected activity. 28 Even with these employees . . . (1) because he has
If an employer does business in qualifications, it is conceivable that opposed any practice made an
a state with an off-duty conduct an employee’s communications about unlawful employment practice by
statute, it should work with working conditions or a difficult this subchapter, or (2) because he
counsel to ensure its approach manager could become concerted has made a charge, testified, assisted,
to social media and electronic activity, particularly if the employee or participated in any manner in
communications does not conflict directs these communications at an investigation, proceeding, or
with applicable law. It should other employees. hearing under this subchapter.”30
also discuss any specific concerns The Supreme Court recently
about off-site conduct in order to C. Whistleblowing and Retaliation construed “oppose” broadly to
determine if statutory exceptions A patchwork of federal and state include actions beyond active or
could apply. statutes protects employees who consistent behavior.31 Under this
morrison & foerster llp — page 4employme nt law co mme ntary
broad definition, it is possible that policy.34 The court found that the employers should clearly delineate
making a complaint through social attorney-client privilege outweighed what type of conduct is permitted.
media could constitute opposition. It the company’s stated policy that An effective social media program
is therefore important that employers e-mail is not private. The court then will take a two-pronged approach
take seriously any comments related concluded the law firm’s review of that covers both written policy and
to the treatment of a protected the e-mail was “inconsistent with” management training.
class, regardless of the form of the state ethical rules and remanded
First, employers should adopt
communication. for consideration of sanctions and
written policies governing electronic
disqualification. Stengart is in
D. Wrongful Termination communications and ensure that
the process of appeal to the New
employees and management observe
Similar to Fourth Amendment Jersey Supreme Court, and has been
the policies in practice. Having a
unreasonable search concerns, private distinguished by the employee’s use
written policy is important not only
employers typically do not confront of a personal, rather than corporate, because it can help shape employee
First Amendment freedom of speech e-mail service.35 It serves, however, as conduct, but also because courts
issues. Some courts, however, an important reminder that attorneys afford employer policies weight in
have considered whether the First should be familiar with applicable a common-law privacy analysis.
Amendment, or similar rights in ethical rules, particularly for new The substance of an electronic
state constitutions, might create a issues like electronic communications. communications or social media
clear mandate of public policy for
policy should take the employer’s
wrongful termination torts against III. Employer Policies
organization needs into account. For
private employers. 32 In addition, state In order to mitigate the risk of liability employers that value confidentiality,
statutes may specifically create a cause under the laws discussed above, it is adopting a bright-line prohibition
of action against private employers important that an employer adopt of social media communications
for disciplining employees’ exercise of a cohesive approach to social media related to the employer’s business may
First Amendment rights.33 communications. This approach will sound appealing. This approach,
need to be tailored to the applicable however, could run afoul of the
E. Attorney-Client Privilege laws and the nature of the employer’s National Labor Relations Act, state
If a dispute over an employee’s online organization, as well as the employer’s off-duty conduct statutes, and
activities ends in litigation, counsel specific concerns about social media. whistleblower or anti-retaliation
should exercise caution in reviewing For example, some organizations may protections. The better approach is
employee electronic communications. be concerned about their public image, to urge employees to separate their
An employee’s communications with while others will want to prevent the personal and professional digital
a personal attorney may be privileged inadvertent disclosure of confidential lives. For example, an employer
even if they were made using company information. Additionally, social could consider restricting the use of
property. In Stengart v. Loving Care media may be an asset to sales and personally-owned technology at work
Agency, Inc., a New Jersey appellate client-oriented businesses, as it and prohibiting the use of company-
court recently held that an employee’s allows employees to keep in contact owned equipment for social media.
e-mails with her attorney, made with potential customers. For such Employers should also clearly explain
using a web-based e-mail account employees, companies can encourage that employees are prohibited from
on a company computer, remained the use of social networking sites with sharing any confidential information,
privileged even in the presence of a a professional, rather than social, whether through social media or
company electronic communications emphasis. Even in these situations, otherwise. Additionally, an electronic
morrison & foerster llp — page 5employ me nt law co mme ntary
communications and social media communications, companies that Local%20Assets/Documents/us_2009_
ethics_workplace_survey_220509.pdf.
policy should explain that the involve themselves or their employees
4
Id. at 5.
employer reserves and exercises the in social media face additional 5
Laws regulating this area also vary
right to monitor all communications considerations. Notably, the Federal significantly in foreign jurisdictions, such as
made using company property. The Trade Commission recently updated European Union Member States.
policy should also remind employees
6
See, e.g., Moreno v. Hartford Sentinel, Inc.,
its Guides Concerning the Use of
172 Cal. App. 4th 1125 (Cal. Ct. App.
that they are subject to discipline Endorsements and Testimonials. 2009).
for inappropriate electronic The updated standards provide 7
See Pietrylo v. Hillstone Rest. Group, 2008
communications. Importantly, U.S. Dist. LEXIS 108834, at *17-20
that material connections between (D.N.J. Jul. 24, 2008).
employers should offer training to endorsers and advertisers must be 8
The Seventh Circuit held that when an
employees on the appropriate use of disclosed, and specifically apply this employer “announced that it could inspect
the laptops that it furnished for the use of
social media under this policy. rule to social media.36 This rule may its employees,” an employee could have no
affect employees’ personal social reasonable expectation of privacy under the
Second, employers should train Fourth Amendment for files on the laptop.
media use, such as blogs. Among Muick v. Glenayre Elecs., 280 F.3d 741,
supervisors and managers on how
other safeguards, employers should 743 (7th Cir. 2002). Some district courts
to handle social media issues. To reached a similar conclusion for common-
be clear that employees must identify law invasion of privacy claims. See, e.g.,
date, the bulk of litigation over
themselves as such if they comment Thygeson v. U.S. Bancorp, 2004 U.S. Dist.
employee social media use has LEXIS 18863, at *68-70 (D. Or. Sept. 15,
on a company-related issue and state 2004).
focused on management’s conduct,
that they are expressing only their 9
See Quon v. City of Ontario, 529 F.3d 892,
rather than the substance of the 897 (9th Cir. 2008), cert. granted, 2009
own views. Employers involved in
employees’ communications. This U.S. LEXIS 9058 (U.S. Dec. 14, 2009).
social media should also consider
training should include instruction 10
For example, some states like Delaware
on handling privacy issues related to compliance with securities laws, and Connecticut require employers to give
notice to employees who will be subject to
employee use of technology. While including Regulation Fair Disclosure, electronic monitoring. See Conn. Gen. Stat.
a written social media and electronic which governs disclosure of material § 31-48d; 19 Del. C. § 705.
nonpublic information, and the
11
The Wiretap Act, 18 U.S.C. § 2510 et seq.,
communications policy may change is more formally referred to as the Electronic
employees’ reasonable expectations of applicability of safe harbor protections Communications Privacy Act (“ECPA”).
for forward-looking information. The Stored Communications Act is codified
privacy, it may not affect less flexible at 18 U.S.C. § 2701 et seq. A violation
laws like the Stored Communications of the ECPA, unlike an SCA violation,
Though the law in this area may be requires “interception” of the contents of a
Act. Employers should therefore communication contemporaneous with the
unsettled, there are no signs that the
instruct managers to contact human communication. See Konop v. Hawaiian
growth of social media is waning. Airlines, Inc., 302 F.3d 868, 878-79 (9th
resources or legal counsel before Cir. 2002). The ECPA is therefore a
By adopting a plan for handling
attempting to gain access to non- less likely cause of action for employer
social media, employers will be able monitoring of social media, which typically
public employee communications. involves accessing stored information.
to handle emerging personnel issues
Employers should also consider However, if the employer is engaged in
efficiently, consistently, and legally. “real-time” interception or monitoring of
training management to treat an employee’s postings or other electronic
employees’ work-related social media communications, employers must consider
------------------
limitations under the ECPA as well.
comments with the same seriousness 1
Facebook, Facebook: Timeline, http://www. 12
18 U.S.C. §§ 2701, 2707.
facebook.com/press/info.php?statistics#/
as workplace complaints.
press/info.php?timeline. 13
18 U.S.C. § 2701(c)(2).
Finally, while this alert addresses
2
Id. 14
This issue arose in Quon v. Arch Wireless,
in which the Ninth Circuit determined
3
Deloitte LLP, 2009 Ethics & Workplace
employer monitoring of that the SCA did not allow an employer to
Survey Results at 2 (2009), http://www.
employees’ personal social media receive the content of text messages sent by
deloitte.com/assets/Dcom-UnitedStates/
morrison & foerster llp — page 6employme nt law co mme ntary
its employees through a third-party pager service—even though the employer paid for that service. See
592 F.3d 892.
This newsletter addresses recent employment law devel- 15
See Pietrylo v. Hillstone Rest. Group, 2008 U.S. Dist. LEXIS 108834, at *8-10 (D.N.J. Jul. 24, 2008).
opments. Because of its generality, the information
provided herein may not be applicable in all situations
16
Konop, 302 F.3d at 880.
and should not be acted upon without specific legal
advice based on particular situations.
17
Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199, 209 (4th Cir. 2009).
18
California has also enacted an off-duty conduct statute. The statute is broadly worded and authorizes
Editor: Lloyd W. Aubry, Jr., (415) 268-6558
the Labor Commissioner to assert “[c]laims for loss of wages as the result of demotion, suspension, or
San Francisco discharge from employment for lawful conduct occurring during nonworking hours away from the
------------------------------------------------------------
Lloyd W. Aubry, Jr. (415) 268-6558 employer’s premises.” Cal. Lab. Code § 96(k). California courts, however, have limited this provision
laubry@mofo.com to “recognized constitutional rights,” in essence concluding that it does not contain substantive
James E. Boddy, Jr. (415) 268-7081 protection beyond existing law. Barbee v. Household Auto. Fin. Corp., 113 Cal. App. 4th 525, 534 (Cal.
jboddy@mofo.com Ct. App. 2003).
Karen Kubin (415) 268-6168
kkubin@mofo.com 19
N.Y. Lab. Law § 201-d.
Linda E. Shostak (415) 268-7202
lshostak@mofo.com
20
State v. Wal-Mart Stores, 207 A.D.2d 150 (N.Y. App. Div. 3d Dep’t 1995).
Eric A. Tate (415) 268-6915 21
Kolb v. Camilleri, 2008 U.S. Dist. LEXIS 59549 (W.D.N.Y. Aug. 1, 2008) (decision of magistrate
etate@mofo.com
judge).
Palo Alto
----------------------------------------------------------- 22
C.R.S. 24-34-402.5(1).
Christine E. Lyon (650) 813-5770
clyon@mofo.com 23
Marsh v. Delta Airlines, 952 F. Supp. 1458, 1462-63 (D. Colo. 1997); but see Watson v. Pub. Serv. Co.,
Joshua Gordon (650) 813-5671 207 P.3d 860, 864 (Colo. Ct. App. 2008) (noting no Colorado court of appeals has adopted Marsh),
jgordon@mofo.com cert. denied, 2009 Colo. LEXIS 436 (Colo. 2009).
David J. Murphy (650) 813-5945
dmurphy@mofo.com 24
Watson, 207 P.3d at 864.
Raymond L. Wheeler (650) 813-5656
rwheeler@mofo.om
25
29 U.S.C. § 157.
Tom E. Wilson (650) 813-5604 26
See generally NLRB v. Mike Yurosek & Son, 53 F.3d 261, 264-66 (9th Cir. 1995).
twilson@mofo.com
27
Id. at 266-67.
Los Angeles
------------------------------------------------------------
Timothy F. Ryan (213) 892-5388
28
See Media Gen. Operations, Inc. v. NLRB, 560 F.3d 181, 186 (4th Cir. 2009); see also Timpte, Inc. v.
tryan@mofo.com NLRB, 590 F.2d 871 (10th Cir. 1979).
Janie F. Schulman (213) 892-5393
jschulman@mofo.com
29
18 U.S.C. § 1514A; 29 U.S.C. § 660.
New York 30
42 U.S.C. § 2000e-3(a).
------------------------------------------------------------
Miriam H. Wugmeister (212) 506-7213 31
Crawford v. Metro. Gov’t of Nashville & Davidson County, 129 S. Ct. 846, 851 (U.S. 2009).
mwugmeister@mofo.com
Washington, D.C./Northern Virginia
32
Courts in California and some other states have rejected private-sector wrongful discharge claims based
------------------------------------------------------------ on public policy of the First Amendment. See, e.g., Grinzi v. San Diego Hospice Corp., 120 Cal. App.
Daniel P. Westman (703) 760-7795
dwestman@mofo.com 4th 72, 83 (Cal. Ct. App. 2004). The Third Circuit, however, recognized a tort for wrongful discharge
in violation of public policy set by the First Amendment of the U.S. Constitution and the Pennsylvania
San Diego Constitution. Novosel v. Nationwide Ins. Co., 721 F.2d 894, 900 (3d Cir. 1983). Other courts have
------------------------------------------------------------
Craig A. Schloss (858) 720-5134 questioned whether Novosel remains good law. See, e.g., Tiernan v. Charleston Area Med. Ctr., Inc., 506
cschloss@mofo.com
S.E.2d 578, 588-90 (W. Va. 1998); Grinzi, 120 Cal. App. 4th at 83.
Denver
------------------------------------------------------------ 33
See Conn. Gen. Stat. Ann. § 31-51q.
Steven M. Kaufmann (303) 592-2236
skaufmann@mofo.com 34
Stengart v. Loving Care Agency, 408 N.J. Super. 54, 61 (App. Div. 2009).
London 35
Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2,
------------------------------------------------------------
Ann Bevitt 44-20-7896-5841 2009) (finding attorney-client communications made using company e-mail, with an electronic
abevitt@mofo.com
communications policy in place, not privileged).
36
For more information on the updated Guides Concerning the Use of Endorsements and Testimonials,
see our legal update at http://www.mofo.com/news/updates/files/16050.html.
------------------
If you wish to change an address, add a subscriber, or
comment on this newsletter, please write to:
Wende Arrollado
Morrison & Foerster LLP
12531 High Bluff Drive, Suite 100 John R. Lanham is an associate in our
San Diego, California 92130
warrollado@mofo.com Denver office and can be reached at
www.mofo.com (303) 592-2278 and jlanham@mofo.com.
©2010 Morrison & Foerster LLP. All Rights Reserved.
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