LinkedIn Agrees to Pay Nearly $6 Million for Wage & Hour Violations Following DOL Investigation

The US Department of Labor today announced that the popular online professional networking company, LinkedIn Corp., has agreed to pay nearly $6 million to its employees for various wage and hour violations that were uncovered in a recent DOL investigation.  Specifically, LinkedIn agreed to pay $3,346,195 in unpaid overtime back wages and $2,509,646 in liquidated damages to 359 current and former employees working in California, Illinois, Nebraska, and New York.  

The DOL's Wage and Hour Division determined that LinkedIn violated overtime and record-keeping requirements of the federal Fair Labor Standards Act.  According to the DOL's investigation, LinkedIn failed to keep an accurate record of, or pay employees for, all hours worked in a workweek.  Not only did the company agree to pay all overtime back wages that were owed, the company also paid liquidated damages and agreed to an "enhanced compliance agreement" with the DOL under which it agreed to take a number of proactive steps to help ensure future FLSA compliance.

This is just one more example of the DOL Wage and Hour Division's increased attention and enforcement efforts aimed at preventing FLSA violations.   

With "Friends Like These . . .

Thanks so much to my friend and colleague, Ann Holden Kendell, for contributing this blog post!  

I asked Megan if I could write a guest blog post regarding a recent case from the U.S. District Court for the District of New Jersey.  This case involves the firing of an employee after her Facebook "friend" and co-worker shared her non-public entries with their mutual employer.  Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WJM) (D.N.J. Aug 20, 2013).

Why did I want to do this?  In addition to being interested in this case as an employment lawyer and voyeur (this employee had a long disciplinary record and her brother ended up representing her when her original attorney withdrew), I was struck by how Megan could have written this opinion herself.  I have given many speeches to clients and organizations with Megan and have heard her social media presentations. 

Her guidance matches with the takeaways from this case.  In addition to other laws and invasion of privacy issues, the Federal Stored Communications Act (“SCA”) will apply to non-public Facebook posts. However, people with authorized access – i.e., a Facebook friend – may access the information.  In short, Deborah Ehling’s Facebook friend properly had access to her private posts.  He independently chose to pass that information on to their mutual employer.  This was another important piece of the case:  the evidence showed the employer did not force or coerce this "friend" to provide the information; the shared communication was unsolicited.  The court explained:

...the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.

In light of how this all “went down,” the court found that the employer did not violate any statutory or tort law in terminating Ms. Ehling, and it dismissed her lawsuit.

Does this mean employers can do whatever they want?  Simply put, no.  The facts of this case worked out for the employer, but the facts of most cases are often moving targets and not fully known until the witness is under oath.  If this “friend” had indicated there had been some pressure (maybe even just a request) to turn over the Facebook posts, this likely would have turned out very differently.  Or, imagine if the “friend” suddenly received a raise or promotion after turning over the information…this would have looked shady and could have affected the outcome.    

Employers still need to use caution when using Facebook information in employment decisions. True, it's important to determine whether the information found is appropriate for use in an employment decision. But even before we get to that question, employers should pause to consider how it obtained the information. For example, were any underhanded means were used (such as deceit, coercion, etc.)? Was the information requested in good faith, but still in a manner that could suggest another person felt pressure to turn it over? Was it completely unsolicited, as it was in this case? These kinds of questions should guide an employer's analysis. At least that's what Megan tells people, and Judge Martini agreed.

Missouri Law Bans Certain Teacher/Student Online Communications

Missouri has just passed a law prohibiting certain online communications between teachers and students.  The Amy Hestir Student Protection Action more broadly aims to protect students from sexual abuse, but the controversial provision in the law reaching student and teacher social media usage and online activity is section 162.069, which provides:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student. Former student is defined as any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated.

Although it's been coined the "Facebook law," it reaches other online communication tools, as well.  And it doesn't necessarily ban all contact between students and teachers online -- just communications on a "website that allows exclusive access with a current or former student."  The law doesn't define what this is, but it presumably aims to prevent private, direct communications between student and teacher.  This would also seem to prevent a teacher with a private Facebook profile from "friending" a student on Facebook.  (Or would it?  If the only communication between a teacher and student occurred on a publicly visible "wall"?)  A number of analysts have suggested teachers who want to communicate with students on Facebook should create public Facebook fan pages, which students can "like."  This way, students and teachers can communicate on its wall, allowing their exchanges to be publicly visable.  (But this wouldn't take away the ability to send a private message -- that capability is available on Facebook by default, whether you're friends with the person you want to message or not.)

Sure, it may be a decent policy for teachers not to Facebook friend students.  But requiring it by law (a relatively ambiguous law, no less) sets the stage for some likely problems.  Although well intended, the law sure seems to leave open a lot of questions.  What exactly is "exclusive access"?  Does this law go too far?  Does it infringe on students' or teachers' free speech or freedom of association rights?  Does this prohibit communication with students the teacher actually teaches or taught?  Or all students within the district?  What about retired teachers?  Retired teachers who still substitute teach in the school district?  Doesn't this law go much further than necessary to stop improper sexual conduct between student and teacher?  If teachers aren't sure what it means, won't it chill their speech?  The law discusses communications on "websites" -- so it wouldn't reach text messages, or phone calls for that matter.

The law goes into effect later this month, but gives school districts until January 1 of 2012 to implement their new policies.

NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Check Out A Few of Erickson's Posts for IowaBiz on Technology, Internet, & Law

For those of you who may be interested, I thought I'd share a few posts I've written recently for IowaBiz, the official blog for the Des Moines Business Record, that touch upon technology, the internet, and the law:   

• May 31, 2011 post on a bill signed by Iowa's Governor that authorizes a study on online gaming.

• May 13, 2011 post discussing how employers may respond to the fairly common practice of employees including information about their workplace on Facebook or other social networking profiles. 

• April 13, 2011 post discussing the largely symbolic vote in the House to repeal the FCC's net neutrality rules (the measure isn't expected to pass the Senate).

• March 29, 2011 post discussing the importance of early planning stages in a company's creation of or updates to social media or social networking personnel policies.

Coming Up in NYC: ABA National Symposium on Technology in Labor and Employment Law

Attention attorneys!  The ABA National Symposium on Technology in Labor and Employment Law will be held April 27-29 at the New York University School of Law in New York, New York.  The event is presented by the Technology in the Practice and Workplace Committee and co-sponsored by the NYU Law School's Center for Labor and Employment Law.  The meeting kicks off with a welcome reception on Wednesday, April 27 from 6:30p-8:30p.  General sessions will be held Thursday, April 28 and Friday, April 29.

See the committee's announcement for more details.  And if you're a lawyer who plans to attend, leave a comment!

Update, Update, Update Your Document Retention Policies!

With the increased online activity in business, companies should take time to review and update document retention policies sooner rather than later. Many companies probably already have policies addressing email systems, but these may need refreshing. Because more and more companies have become active on social media sites like Facebook and Twitter, it’s also wise to review or update document retention polices to ensure the scope will cover such social media activity. To the extent you have different policies addressing different technologies or communications, businesses should ensure they’re consistent. (Companies may want to avoid multiple policies if it’s possible to draft one that’s broad and flexible enough to capture all electronic communications.)

Keep in mind any special obligations that might exist for your particular business or industry. Federal and/or state regulations may impose special recordkeeping obligations or considerations. For example, and as I’ve mentioned before, the U.S. securities regulator, FINRA, has regulatory guidance regarding certain record-keeping obligations brokerage firm’s business-related communications online (including on social media sites and blogs).

Companies may struggle with apparent tensions that arise between obligations to preserve relevant communications versus associated privacy concerns.  (For example, privacy issues may arise when a company attempts to collect or store communications by employees or customers.)  Businesses would be wise to seek legal counsel in navigating these waters.

Remember online communications may become relevant in litigation – and companies have an obligation to preserve all relevant communications, documents, and information if litigation is pending or reasonably anticipated. A company that fails to properly preserve relevant information can face hefty sanctions by the court.

Connecticut Employer Settles Facebook Firing Case With NLRB

Yikes. My apologies for the massive delay since my last couple posts. Speaking of my last couple posts . . . remember that time American Medical Response of Connecticut fired an employee after she complained about her boss on Facebook? Shortly after the termination, the NLRB’s Hartford regional office issued a complaint against AMR, alleging the firing violated federal labor law. According to the complaint, the employee’s online comments constituted protected activity.  The complaint also alleged that the company's policies addressing online communications were overly broad.  Yesterday, the NLRB announced the case has been settled.  (Fun fact:  not only did the NLRB issue a press release, it also tweeted the update!)

twitter.com/nlrb

To review a few considerations employers may want to take into account, you may want to revisit my blog post, "Social Media Policies for Employers:  A Few Notes on the NLRA."

Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media

So. Not. Cool.

Sixty-year-old William Wells arrived at St. Mary Medical Center's emergency room in Long Beach with more than a dozen stab wounds. According to the Los Angeles Times, his throat had been lacerated so severely, he was almost decapitated.

The first instinct of a handful of hospital workers there that day? Rather than rush to the aid of the dying man, they took pictures of him . . . and then, yes, they posted them on Facebook.

According to the Los Angeles Times news story, the hospital fired four staff members and disciplined three. At least two involved were nurses (but they apparently weren't fired).

This sad story highlights some of the challenges healthcare facilities face in today's social media frenzied culture. Hospitals and clinics struggle to balance their use of social media sites for marketing, recruiting, and advertising purposes against the need to protect patient privacy. But let me suggest that social media isn't really the problem -- the problem arises when employees make poor judgment calls when using these new online tools.  Of course, these employees should have known posting pictures of a dying man on Facebook was a bad idea.  But some privacy breaches and other workplace problems could be prevented if employers took a more concerted effort to identify their business needs and to educate employees about social media expectations.

Healthcare facilities often implement across-the-board bans of Facebook and other social networking sites at the workplace, assuming this kind of broad-brush approach will be the most effective. Managers may be forgetting that blocking workstation access to Facebook wouldn't have changed the St. Mary employees' access to their smartphone cameras and 3G mobile internet. Frankly, I don't think all-out bans of social media sites at the workplace are practical or effective.  Employers should take the time to create, communicate, and maintain a thoughtfully considered social media policy. Although some judgment calls seem intuitive, employers need to communicate their requirements and expectations to employees regarding employee use of social media.

School District Considers Social Media Policy for Teachers & Other Employees

Daniel Schwartz has an interesting post over at the Connecticut Employment Law Blog, pointing to a Connecticut school district considering a social media policy for its teachers:  School Board Considers Social Media Usage Policy for Teachers, Other Employees.

Schwartz also mentions a list of sample policies I've perused a number of times myself and have found to be a great resource:  the "Social Media Policies Database" made available over at the Compliance Building blog.  Of course, I encourage my readers to hearken back to my earlier cautions about relying on sample policies, as the public/private employer distinction raises another reason to thoughtfully and carefully approach sample policies. Remember that a school district, as a public employer, has First Amendment issues to worry about that private employers generally don't need to consider when drafting employment policies. Public employers may also want to consider, for example, Fourth Amendment implications of conducting online searches or monitoring use of technology, whether some level of due process might be owed before disciplining an employee, and so on.  Remember that a policy drafted for a private employer won't address First Amendment or other issues only relevant to a public employer . . . and a policy drafted for a public employer probably won't be a great fit for a private employer. Still, employers may find some helpful nuggets of information in the MANY samples out there!

Final GINA Regs Delayed: GINA & Social Media Considerations for Employers

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal to discriminate against employees or applicants because of genetic information. It prohibits using genetic information to make employment decisions, prohibits acquisition of genetic information by employers, and limits disclosure of genetic information by employers. (Harassment and retaliation are also forbidden.)  Title II took effect on November 21, 2009. The proposed regulations were published last year, and the final regulations were initially expected to be published in May of 2010, but publication of the final rule has been delayed.

This leaves employers (and their lawyers) in interpretation-limbo a while longer. With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides six exceptions. One of those exceptions is inadvertent acquisition. “Well, I didn’t know I was going to find this information on his profile.” This probably isn’t going to protect employers. If a supervisor or human resources manager intentionally accesses a profile, the information found there isn’t acquired inadvertently. (Depending on the facts, I suppose this could change. If an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in the supervisor’s Facebook news feed – there may be a better argument for the inadvertent acquisition defense.)

The better possibility is the exception for “commercially and publicly available information.” The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to the list information obtained through electronic media (internet, television, and movies). This suggests social media would be exempted – but the EEOC then specifically invited public comment on whether “personal Web sites, or social networking sites” would be a prohibited or exempted source of genetic information. So, it’s still not clear whether social media profiles would fall under the "commercially and publicly available information" exemption. If it doesn’t fall within the scope of this exception, an employer that obtains genetic information by checking an applicant or employee profile would likely be violating GINA.

Of course, even if a social networking profile turns out to be an excepted source of information, employers still must be careful in how they use the information they acquire. As is the case with any other kind of unlawful discrimination, an adverse employment action taken after the employer becomes aware of an employee’s protected status might suggest the employment decision was because of the protected status and not performance.  (Not only true in the context of current employment relationships, but also in the context of hiring.)

Waitress Fired After Complaining on Facebook: "Legally Justified" Does Not Always Equal "Good PR"

The Huffington Post reports that Brixx Pizza fired a North Carolina waitress after she complained on Facebook about a customer's stingy tipping.

According to the Post, a couple sat at their table for three hours, and waitress Ashley Johnson, 22, said the customers kept her at work an hour after she should have been able to clock out. The couple rewarded her with a $5 tip.

A frustrated Johnson criticized them on her Facebook page -- calling the couple cheap and mentioning her employer by name.

Brixx got in touch with Johnson shortly thereafter, informing her that it was terminating her employment because her Facebook post violated company policy against disparaging customers and casting the restaurant in a negative light via social network sites.

Brixx posted the following official statement on its Facebook page discussion board:

Brixx Wood Fired Pizza appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them.

As an employer, it is necessary to enforce policies for the benefit of all our hardworking employees and valued customers. Our policies ensure Brixx is an enjoyable place to both work AND dine. We welcome your comments, but please keep it clean!

As evidenced by the backlash on the company's Facebook page, employers have to consider not only legal implications of a Facebook firing, but also the practical implications -- including a potential backlash from the public that may be triggered by discipline for an employee's online activity. Although the company may be able to justify the termination from a legal perspective, it won't be easy to recover from the PR nightmare that could ensue.   

One user commented, in part, "You've gone & made Ashley Johnson famous. And your company INfamous." One particularly insightful comment aptly summarizes the point of my post:

Thanks to Becca for the tip on this story!

Social Media & Hiring Posts Published on New Iowa Employer Law Blog

The Dickinson, Mackaman, Tyler, & Hagen employment and labor law practice group recently launched a new law blog, Iowa Employer Law Blog (iowaemployerlaw.com). The new blog provides general information and insight on legal developments of interest to Iowa employers and other employment law attorneys.

I recently blogged about social media and the hiring process on the Iowa Employer Law Blog. The first post, Social Media and the Hiring Process, Part I:  Benefits & Risks, was published on April 15.  Social Media and the Hiring Process, Part II:  Policy Making was published on April 21.

The Dickinson employment and labor law practice group is one of Iowa's largest and most acclaimed, with nine attorneys, five of whom practice primarily in employment law. The group is also one of only three such practice groups in Iowa to earn a "Band 1" ranking in the Labor and Employment area in the most recent edition of Chambers USA:  America's Leading Lawyers for Business. 

Just in case you haven't noticed via other linking on my blog, one of those Dickinson attorneys who practices primarily in employment law with the firm is yours truly.  (Note that this may be the kind of "material connection" that should be disclosed pursuant to the FTC endorsement guidelines I discussed on May 3, 2010, Potential Employer Liability for Employee Endorsements Under FTC Guidelines.)

Potential Employer Liability for Employee Endorsements Under FTC Guidelines

You may recall my earlier post, "FTC to Require Bloggers to Disclose Payments or Freebies for Endorsements," discussing the first update since 1980 to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. That earlier post focused primarily on the guide's requirement that bloggers disclose any payments or in-kind donations (i.e., freebies) received in exchange for reviewing a product or service. But remember these new guidelines require disclosures of any "material connections" between endorsers and the advertised companies (i.e., connections between the endorser and endorsee). Material connections may arise as a result of some relationship other than just payment or free products directly in exchange for a positive review. For example, under the new guides, an employer could be liable for online communications by its employee if the employee touts a product or service offered by his employer, but fails to make clear he works for the company he's promoting or "endorsing."  The guidelines include the following example (Example 8 in the final rule):

An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

It seems the new guides could potentially impose liability on employers for things their employees say online, even if the employer did not actually know those things were being said. The Commission seems to recognize that companies do not have control over all employee conduct. However, the FTC suggests that an employer may protect itself from liability if the employer has an appropriate policy governing social media participation by employees, clearly articulates that policy to employees, and consistently enforces that policy. The FTC explains:

With respect to Example 8 [laid out above], one commenter asserted that if the employer has instituted policies and practices concerning "social media participation" by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision as to whether law enforcement action would be an appropriate use of agency resources given the facts set forth in Example 8. Indeed, although the Commission has brought law enforcement actions against companies whose failure to establish or maintain appropriate internal procedures resulted in consumer injury, it is not aware of any instance in which an enforcement action was brought against a company for the actions of a single "rogue" employee who violated established company policy that adequately covered the conduct in question.

In sum, employees (as well as business owners or others with a material connection to a company) who use social media to endorse a product or service offered by their company should notify readers of their connection with the business they are talking about, and employers should implement or update social media policies to take into account the FTC guidelines.

Employment Law Considerations: Employee Use of Geolocation Services

Social media asking users, “What are you doing?” That’s so 2009.

Now, social media asks, “Where are you?”

Geolocation services like Foursquare and Gowalla allow users to check in to (or otherwise share) their locations by using GPS- and web-enabled phones, iPods, or other electronic devices. These sites usually incorporate elements of both social networking and gaming: users may connect with one another, but they also compete to earn points, discounts, titles (i.e., the “Mayor” of X or Y bar might get free beer), badges, etc. These sites often incorporate a user-review-esque quality, too, allowing users to make recommendations for their favorite locations. Of course, sites like this may also potentially boost the local economy, and offer users tips and suggestions for other nearby businesses. Foursquare, for example, explains it “will keep track of the things you’ve done, help you create To-Do lists and even suggest new experiences to seek out.”

Similarly, earlier this month, Twitter rolled out its “Tweet With Your Location” feature that lets users add location information to their Tweets (this function defaults to “off” and must be enabled by the user).

These sites report not only where a user is, but may also say why, when, how often, and with whom . . .

For the same reasons more and more employers are checking employee and candidate’s Facebook profiles, LinkedIn connections, and Tweets, employers may also want to see what their employees are up to on these geolocation sites.

It’s not unusual for an employer to monitor an employee’s or candidate’s online presence. Earlier posts touched upon some issues employers may want to consider when using social media to investigate candidates during the hiring process or before disciplining current employees based on their online activities.

These and similar issues may be implicated when employers look up an employee’s online geolocation information or profile as well.

Remember that, for the most part, the same old traditional rules apply. The key becomes identifying (sometimes predicting) how they apply, or may be implicated, in the ever-changing context of online media.

For example, did Employee Eddy lie about missing work last Friday because of a head cold? Maybe Foursquare reports that he “checked in” at the local sports bar at 4 pm while his colleagues were heading to the departmental marketing meeting. Discipline may well be justified.

But different circumstances may call for different considerations. What if Eddy checked in to the bar during only off-duty hours? It’s his favorite bar, so he goes there often – and he checks in each time (he wants to become the bar’s “Mayor” after all!). Supervisor Sam sees Eddy visits the bar regularly, and he wants to fire Eddy just because he thinks the frequent weeknight trips to the bar reflect poorly on his character. What if it happened to be a gay bar (in some states, including Iowa, sexual orientation is a protected class)? Did Supervisor Sam bother to look at the beer bong pictures posted on Facebook by other employees?

Such common use of GPS-based technology and other geolocation services is new enough that there’s little to no legal authority directly on point. The New York Court of Appeals, however, offers the following insightful commentary (although this arose in the context of a criminal case, it wonderfully articulates some points employers and employment lawyers may wish to consider):

“The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations – political, religious, amicable and amorous, to name only a few – and of the pattern of our professional and avocational pursuits. . . . And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons-to mention just a few of the highly feasible empirical configurations.”

- People v. Weaver, 909 N.E.2d 1195, 1199-1200 (N.Y. 2009)

For more information on the various geolocation services and sites out there, Daniel Ionescu provides a nice summary of the various services in this PCWorld article that ran yesterday.

New Article: Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert, New York State Public Employment Relations Board Deputy Chair, brought to my attention a recent article he authored, “Workplace Consequences of Electronic Exhibitionism and Voyeurism,” which may be downloaded at the Social Science Research Network. A number of authors and commentators have tackled various legal issues related to social media, privacy, and the workplace, but Herbert’s commentary offers a particularly insightful discussion with its special emphasis on the social psychological aspects of the world of Web 2.0. 

"Despite the general reluctance to bare all through old media, new communicative technologies are leading, if not encouraging, individuals to engage in an unprecedented degree of exhibitionism about their personal lives, thoughts and activities to a virtual worldwide audience. Frequently, such communications relate directly or indirectly to work or co-workers and have the potential for causing negative employment consequences." - William A. Herbert in "Workplace Consequences of Electronic Exhibitionism and Voyeurism"

For other posts related to social media and the workplace, click here.

Use of Social Media Before, During, & After Employment Relationship

Check out "Social Media Permeate the Employment Life Cycle" on The National Law Journal web site, discussing why and how employers should address the use of social media before, during, and after the employment relationship of their employees.

More on Employer Social Media Policies

The Delaware Employment Law Blog offers employers some good insight, outlining three initial steps on the road to creating an effective social media policy. In her December 4, 2009 post, Molly points out that it's important for employers to (1) familiarize the decision makers, (2) select key players, and (3) determine objectives.  (Check out her post for the broader discussion of these steps.)

I discussed related issues in October -- so if you're looking for more employer pre-drafting considerations (before drafting or updating social networking / social media / Web 2.0 policies), check out my October 27, 2009 post and my October 28, 2009 post.

Woman Fired for All-Caps Email Reminds Employers & Employees to Watch "Tone" of Online Communications

EMPLOYERS AND EMPLOYEES SHOULD BEWARE THE "TONE" OF THEIR TYPING.

Ahem . . . sorry, I didn't mean to shout at you.

Vicki Walker, who worked for New Zealand's ProCare Health, learned the hard way that "all caps" emails annoy people.  Walker sent emails to other employees with instructions on how to properly complete forms.  She used various formatting to make her point:  ALL-CAPPED TEXT, bold text, and colored text.  (Gosh, maybe she even used a COMBINATION?!).  Apparently, the instructions came across a little gruff.

ProCare fired Walker for these "confrontational" emails, saying she created "disharmony" in the workplace.

Walker sued for wrongful termination, and recovered $17,000 for the discharge.  (As another blogger points out, is it really possible to be confrontational in an email on how to fill out a form?!)

Employees should keep in mind "netiquette" when communicating by email, via social networking / social media, or with other online platforms.  As I've cautioned before, employers should also bear in mind how responding to employees' online activities might result in liability. And, people:  LET'S BE FRIENDLY WHEN WE TYPE!


*Particularly for those of you visiting my blog for the first time:  All all-caps, bold, and/or red and blue font used above was incorporated for illustrative (and admittedly, sometimes sarcastic) purposes only, and does not accurately reflect the author's true writing style or habits.  She generally doesn't make a habit of addressing her audience in all-caps.  UNLESS SHE'S REALLY EXCITED ABOUT SOMETHING.

Woman Says She Lost Disability Benefits Because of Facebook Pics

If your insurer ain’t havin’ fun, ain’t nobody havin’ fun.

A Canadian woman claims she lost disability benefits because her vacation pictures on Facebook made it look like she was having a good time.

Nathalie Blanchard, an IBM employee in Quebec, had been on long-term sick leave for major depression for about 18 months when she stopped receiving her monthly disability benefits from her employer’s insurance company. She claims the insurer told her that pictures she posted on Facebook (at a Chippendales show, at her birthday party, and enjoying a sunny beach on vacation) showed she wasn’t depressed and was able to work.

Blanchard counters that her doctor recommended she spend time with family and friends; she says she went out with friends and took a short trip with her mom on her psychiatrist’s advice.

The insurance company didn’t comment on this particular case, but issued a statement it “would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

According to an article in the USA Today, Blanchard is taking legal action to challenge the insurer's decision.

As this story illustrates, employers aren't the only ones using Web 2.0 to investigate workers.