EMPLOYERS & LAWYERS, WORKING TOGETHER
BLOGS, SOCIAL NETWORKING &
VIRTUAL WORLDS:
A BRAVE NEW WORKPLACE
Presented By:
Tom Farr
Ogletree Deakins
tom.farr@ogletreedeakins.com
www.ogletreedeakins.com
What’s Out There?
EMPLOYERS & LAWYERS, WORKING TOGETHER

Social Networking Sites:
 Facebook, MySpace, Friendster
 Twitter, Spokeo, MyLife
 Classmates.com, YouTube

Web Logs – “Blogs”
 a personal online journal that is frequently updated,
intended for general public consumption and often
encourages comments or discussions

Professional Networking Sites:
 Plaxo
 LinkedIn
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Just How Big is Social Networking?
EMPLOYERS & LAWYERS, WORKING TOGETHER

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Facebook now has 500 million active users worldwide
who spend, on average, more than 55 minutes on
Facebook each day
MySpace has 100 million active users, although it is in
decline, losing ground to Facebook
Twitter claims to have 175 million users
Linkedin has 100 million users
70 Million Blogs, 175,000 Blogs Created Daily
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Headline News – Diary of a Fired
Flight Attendant


Ellen Simonetti, a Delta Airlines flight attendant,
was fired for her blog, Diary of a Flight
Attendant (now called Diary of a Fired Flight
Attendant).
Delta became aware of her blog with
“inappropriate” pictures, including two of her in
a Delta uniform.
www.ogletreedeakins.com
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EMPLOYERS & LAWYERS, WORKING TOGETHER
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Simonetti Strikes Back!
EMPLOYERS & LAWYERS, WORKING TOGETHER
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After Delta terminated her employment,
Simonetti learned that other male employees
posted similar pictures of themselves on social
media sites in uniform
She filed suit against Delta alleging disparate
treatment based on sex
The case was never adjudicated because Delta
filed bankruptcy shortly after Simonetti filed suit
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Headline News – “Cisco Fatty”
EMPLOYERS & LAWYERS, WORKING TOGETHER

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An applicant, immediately after being offered a
job at Cisco, ‘tweeted:’ “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.”
A Cisco employee responded: “Who is the
hiring manager? I’m sure they would love to
know that you will hate work. We here at Cisco
are versed in the Web.”
This individual was not hired by Cisco.
www.ogletreedeakins.com
Headline News – Teachers’ Tirades
EMPLOYERS & LAWYERS, WORKING TOGETHER


A high school teacher in Pennsylvania was
suspended after she complained on Facebook
that her students were “rude, disengaged, lazy
whiners”
A first-grade teacher in Paterson, New Jersey
was suspended after posting on Facebook that
she felt like a warden overseeing future
criminals
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Headline News – The Fairy Intern
EMPLOYERS & LAWYERS, WORKING TOGETHER
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On October 31, an intern e-mailed his employer that
he could not come to work as he needed to get to
NY immediately for a family emergency.
Instead, he attended a Halloween party, posting on
his Facebook page a dated picture of himself
dressed as a fairy.
The picture was promptly noted by his bosses,
distributed around the office along with an e-mail
thanking him for the notice, hoping everything was
ok and adding “…nice wand.”
He was fired for lying.
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Headline News – Microsoft
EMPLOYERS & LAWYERS, WORKING TOGETHER


A Microsoft employee posted a photo to his
weblog of pallets of new Apple computers on
the Microsoft loading dock with the caption “It
looks like somebody over in Microsoft land is
getting some new toys.”
Microsoft fired him claiming he was a security
risk.
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Headline News – Boss Bashing
EMPLOYERS & LAWYERS, WORKING TOGETHER
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
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An employee was fired for posting on Facebook
that she hated her job and that her boss was a
“total pervvy wanker” and always made her do
“shit stuff”
Unfortunately, the employee forgot that she had
previously “friended” her boss
The boss proceeded to terminate her via
Facebook
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EMPLOYERS & LAWYERS, WORKING TOGETHER
CYBERSPACE ISSUES PRESENTED TO
EMPLOYERS
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What are the risks of accessing and evaluating
cyber-information on applicants as part of the
screening process?
What are the risks of using cyber-information to
take disciplinary action against current
employees?
Should you regulate or outright prohibit
cyberspace activities by current employees?
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EMPLOYERS & LAWYERS, WORKING TOGETHER
What are the risks of accessing and
evaluating cyber-information on
applicants as part of the screening
process?
www.ogletreedeakins.com
Who is Doing It?
EMPLOYERS & LAWYERS, WORKING TOGETHER

In a recent Jump Start Social Media Poll, 100
hiring managers at small, mid-size and large
companies were surveyed –

75% use LinkedIn

48% use Facebook

26% use Twitter
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Information Contained Online:
The Good, The Bad & The Ugly

Charitable activities

Hobbies

Educational background

Special talents

Licenses

Fluency in foreign
language

Certifications

Writing style

Grammar/spelling

Employment experience,
including periods of
unemployment
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Information Contained Online:
The Good, The Bad & The Ugly

Race

Gender

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Children

National origin

Sexual orientation/
gender identity

Age
Political views

Controversial opinions

Religion

Genetic information
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Information Contained Online:
The Good, The Bad & The Ugly

Drug/alcohol/tobacco use

Prior lawsuits/charges

Arrest/criminal history

Bigotry

Marital/family status

Workers’ comp claims

Other “lawful out of work
activities”
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Records of disabilities

Union membership

Health/psychiatric issues
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Information Contained Online:
The Good, The Bad & The Ugly

Whistleblowing

Sexual Content

Disclosure Of Prior
Employer’s Secrets

Harassment Of
Co-Workers

Employer Bashing

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Gossip
Defamation Of
Employer’s Clients Or
Third Parties

Use of foul language
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Do Employers Really Want to Utilize
This Information in Hiring?
Pros:
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Important decision to hire someone
Invaluable information about character that
you might not get anywhere else
Far easier to avoid a bad hire than to get rid
of a bad hire
Failure to hire suits much less likely than
suits over termination
Avoid negligent hiring claim
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Do Employers Really Want to Utilize
This Information in Hiring?
Cons:
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Captive with information impermissible
to consider
Taint otherwise well-based decision
Tempt decision on improper information
Make decision on incorrect information
Bad publicity for company
Increase likelihood of litigation
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Statutory Risks of Employer’s Use of
Employee Cyberspace Activity
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
Federal Statutory Restrictions
 Fair Credit Reporting Act
 National Labor Relations Act - § 7 “concerted activity”
 Railway Labor Act – railroads and airlines “protected
organizing activity”
 Anti-Discrimination Statutes (e.g., Title VII, ADEA, ADA)
 Anti-Retaliation Statutes (e.g., FLSA)
 Stored Communications Act
State Statutory Restrictions
 Retaliatory Employment Discrimination Act
 Workplace Violence Prevention Act
 Off-Duty Use of Lawful Products
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Risks and Common Law Restrictions
EMPLOYERS & LAWYERS, WORKING TOGETHER
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Invasion of Privacy
False Light (not recognized in NC)
Defamation (Libel and Slander)
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EMPLOYERS & LAWYERS, WORKING TOGETHER
What are the risks of using cyber-information to
take disciplinary action against current
employees?
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Do Employers Really Want to Utilize This
Information on Current Employees?
Pros:

Can be an effective way to catch employee
misconduct:
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Dishonesty about need for absence
Harassing/discriminating behavior
Disclosing confidential information
Badmouthing company (but watch for protected activity!)
Illegal conduct
Can have employees sign Social Networking
Policy which makes clear employer will monitor
any workplace use
Avoid negligent retention claim
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Do Employers Really Want to Utilize This
Information on Current Employees?
Cons:

Risk of inconsistency
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Piecemeal information or happenstance
Real risk of making decision based on
incorrect information
Bad publicity for company
Increased likelihood of litigation

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Statutory (retaliation, off-duty lawful conduct)
Common law (invasion of privacy)
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recent Case Law
Zimmerman v. Weis Markets, Inc. (Pa. CP 2011)
 Plaintiff sued his employer after he was injured on the job
by a fork lift
 He sought lost wages and compensation for pain and
suffering as a result of the “permanent diminution in [his]
ability to enjoy life and life’s pleasures”
 Specifically, he testified that he could no longer wear
shorts because he was so embarrassed by the scaring on
his leg
 However, on public portions of his Facebook and MySpace
pages the employee posted pictures in shorts with his
scarred leg clearly visible
 The court rejected plaintiff’s privacy claim as a defense to
discovery and held that a person who voluntarily posts
information to a social-networking profile has no
expectation of privacy
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Recent Case Law
EMPLOYERS & LAWYERS, WORKING TOGETHER

EEOC v. Simply Storage Mgmt. (S.D. IN 2010)

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Two women claimed they were subject to sexual
harassment during employment
During discovery, Simply Storage sough plaintiffs’
Facebook and MySpace records claiming that they
had placed their emotional state at issue by claiming
medical treatment stemming from alleged
harassment, depression, and post-traumatic stress
disorder
The court found that the requested information was
discoverable despite the fact that plaintiffs had
“locked” their profiles from public access
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Recent Case Law
EMPLOYERS & LAWYERS, WORKING TOGETHER
TEKsystems v. Hammernick (Dist. Ct. Minn. 2010)

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TEKsystems sued three employees for
breaching noncompetition and nonsolicitation
agreements, among other things
TEKsystems claimed that one of the former
employees had used her LinkedIn site to contact
current TEKsystems employees to determine
whether they were looking for career
opportunities
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Recent Case Law
EMPLOYERS & LAWYERS, WORKING TOGETHER

Stengart v. Loving Care Agency, Inc. (NJ 2010)
 Employee emails her attorney about potentially suing
Company using Company’s computer but her
personal Yahoo email account
 After employee resigns, Company accesses emails
and tries to use them against her in the lawsuit
 Court held e-mails protected by the attorney-client
privilege
 Company’s ambiguous computer monitoring policy
did not make clear that personal emails are
Company property
 Court specifically rejected idea that Company’s
ownership of the computer is the sole determinative
factor in deciding whether an employee’s personal
communications become Company property
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Recent Case Law
EMPLOYERS & LAWYERS, WORKING TOGETHER

Van Alstyne v. Elec. Scriptorium, Ltd. (4th Cir.
2009)

Allowed punitive damages under the Stored
Communications Act, even absent a showing of
actual damages, where an employer had
accessed an employee’s personal AOL e-mail
account without the worker’s authorization.
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Recent Case Law
EMPLOYERS & LAWYERS, WORKING TOGETHER

Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009)
 Company managers surreptitiously monitored 2
employees’ postings containing complaints and
sexual remarks about managers in a private,
password protected MySpace account
 Managers obtained the password from a female
employee and then terminated the 2 employees
 Employer liable for violating the federal Stored
Communications Act and the NJ Wiretapping and
Electronic Surveillance Control Act, because they
obtained the password by duress
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recent Case Law
Yath v. Fairview Clinic, N.P. (Minn. App. 2009)
 Patient brought an action against healthcare provider
and two of its employees where employees posted
information from plaintiff’s medical file on a MySpace
page
 Ultimately, the employer won on summary judgment
on plaintiff’s vicarious liability claim because the court
held that wrongful access and dissemination of the
patient’s private information was not foreseeable.
And further granted summary judgment to Fairview
on plaintiff’s invasion of privacy claim because there
was no evidence that Fairview was involved in
creating the webpage.
 Key Point: Fairview blocked employee access to
MySpace at work.
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recent Case Law
Konop v. Hawaiian Airlines (9th Cir. 2002)
 Hawaiian Airlines executive gains
unauthorized access to website maintained
by pilot Robert Konop which is critical of the
Airline
 Executive’s unauthorized access could have
constituted a violation of the Stored
Communications Act (SCA) and the Railway
Labor Act
www.ogletreedeakins.com
EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations on Use of Employee
Cyberspace Activity
1. Informed Decision on Use of Internet
Searches for Applicants/Employees

Know the pros and cons

Make an effort to minimize the use of
impermissible information

Make every effort to verify factual information
before basing a decision on it
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations (Cont’d)
2. Gut Check

Do not try to access or break into any site that
you have not been provided authorization to
access

Do not falsify information or impersonate
another individual in order to attempt to obtain
access
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Recommendations (Cont’d)
EMPLOYERS & LAWYERS, WORKING TOGETHER
3. Retention of Information

Because you are opening the door to
impermissible information, it is important to retain
all permissible information on which you are basing
your decision

Retain your search information so you cannot be
accused of accessing information you did not

Retain information on the efforts you made
to avoid accessing or using impermissible
information
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Recommendations (Cont’d)
EMPLOYERS & LAWYERS, WORKING TOGETHER
4. Focus on Job-Relatedness of Information

Study the job description or list of essential
functions

Have defined search criteria that match the job
duties

Have a list of the type of information you are
looking for

Have a list of the information you do not intend to
look at or use
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations (Cont’d)
5. Ensure Right Person is Involved

Don’t task this to someone who is not qualified
and doesn’t have the right information

Should be an HR professional trained in these
kinds of searches (if possible)
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations (Cont’d)
6. Consistently Apply Search

Consistency, always important, is now even more
critical

You are accessing information you would otherwise
never have obtained

Be consistent in your search criteria

Be consistent in your decision-making criteria
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Recommendations (Cont’d)
EMPLOYERS & LAWYERS, WORKING TOGETHER
7. Check Terms and Conditions of Website
Being Accessed

Do not violate the terms of a site in order to access
information

Obtain appropriate information from your applicant
or employee to access site lawfully

Some employers are asking for user names and
passwords (!) to access password-protected sites
like Facebook

A better practice would be to set up a Company
page and request that the applicant/employee hit
the “like” button
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations (Cont’d)
8. Timing of Search: Pre-Offer/PostOffer

Pros of post-offer include
 Ability to avoid tainting otherwise well-based
decisions on people you have no intention of hiring

Cons of post-offer include
 Focusing the applicant on the reason for the
decision and potentially increased likelihood of
litigation due to yanking of job offer
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Recommendations (Cont’d)
9. Include Release/Authorization in
Applications


Should include express acknowledgement that the
employee has no further privacy interest in any
information posted on password-protected or useronly sites
Should at least attempt to obtain indemnification
and release
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EMPLOYERS & LAWYERS, WORKING TOGETHER
Should you regulate or prohibit outright
cyberspace activities by current
employees?
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EMPLOYERS & LAWYERS, WORKING TOGETHER
What Kinds of Trouble Can Employees Get Into?

Trade secret disclosure

Disclosure of private customer and
client information

Posting defamatory statements about
the company, its products/services,
co-workers/bosses, or clients

Engaging in
discrimination/harassment through
social media

False endorsement

Picking up viruses, worms, Trojan
horses and other malware that can
infiltrate your company network
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EMPLOYERS & LAWYERS, WORKING TOGETHER
What Kinds of Trouble Can Employees Get Into?

Posting offensive,
embarrassing or otherwise
objectionable content while
identifying themselves with
the Company

Waste and downtime at
work

Non-compete issues

Privacy related torts
www.ogletreedeakins.com
What kind of trouble can employers get into?
EMPLOYERS & LAWYERS, WORKING TOGETHER
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Postings can spread quickly to millions of
people -- “viral” posts
Damage to the company’s reputation or brands
Loss of confidential information is hard to cure
Identity of offenders may be tough to learn
Firing for Internet use may lead to lawsuits
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Off-duty conduct laws
Discrimination or retaliation
Whistleblowing under SOX
Concerted activity under the NLRA
Invasion of Privacy
Violations of Stored Communications Act, Wiretap Act,
and Electronic Monitoring Statutes
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EMPLOYERS & LAWYERS, WORKING TOGETHER
The Employer’s Choice:
Prohibit vs. Regulate

Prohibition
 Effect on morale
 Effectiveness of prohibition
 Time to police it?
 Resources to monitor?
 Consistency
 Enforcement – what will be the penalty for
violations?
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Prohibit vs. Regulate
EMPLOYERS & LAWYERS, WORKING TOGETHER
 Regulation



Some large employers like IBM, Sun
Microsystems, Google and Microsoft have elected
to regulate employee social networking and
blogging by establishing internal, common sense
guidelines on usage.
Social networking sites may be commercially
helpful to your company (marketing, professional
referrals, branding, etc.)
Social networking is this decade’s answer to email
– it’s here to stay!
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Social Networking Policy Elements
EMPLOYERS & LAWYERS, WORKING TOGETHER
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Employee must read and sign policy at outset of
employment
Make clear in the policy that employees have no
expectation of privacy when using company-issued
equipment
Require adherence to company code of conduct/values

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
No slurs, demeaning jokes, sexist terms,
offensive photos, etc.
Prohibit disclosure of company confidential information
Prohibit use of company logos or trademarks without
written permission
Remind employees of their own personal responsibility
for posts
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Social Networking Policy Elements
EMPLOYERS & LAWYERS, WORKING TOGETHER

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

Disclaimers - reflect content of post as being author’s
opinion alone, not the company’s
Limit blogging, tweeting, facebooking while on the job to
business-related purposes
Depending on the nature of your business, you may
want to consider blocking social networking sites
You can also include a policy that if an employee
discovers a policy violation by a coworker, he or she
must report it to management
Make clear that a violation can lead to discipline, up to
and including termination
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A Word About LinkedIn
EMPLOYERS & LAWYERS, WORKING TOGETHER



Each profile invites others to “recommend” that
person for employment
People openly solicit “recommendations” from
their peers
You scratch my back, I’ll scratch yours
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EMPLOYERS & LAWYERS, WORKING TOGETHER
A Word About LinkedIn
Two Issues for Employers - While you certainly can evaluate
“recommendations” of individuals in considering
them for employment, take them with a grain of
salt

Self-promotion

Consider the source
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A Word About LinkedIn
EMPLOYERS & LAWYERS, WORKING TOGETHER

Make sure you are advising supervisors,
managers and HR personnel not to make
“recommendations” of employees at your
company on LinkedIn
Plaintiffs’ lawyers are mining these sites for
glowing recommendations which contradict
the reason for termination, discipline, etc.
 Safest policy is to comply with your company’s
official job reference policy – typically, a
designated person gives out pre-determined
information and nothing more

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EMPLOYERS & LAWYERS, WORKING TOGETHER
Questions or Comments?
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