Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

TWEETING AND ALCOHOL DO NOT GO TOGETHER.  According to USA Today, Kimesha Jackson is the promoter/event coordinator at Privae, a high end, popular nightclub located in Dallas.  This past Friday, she tweeted that there were 12 Dallas Cowboy football players in the club, and that alcohol was flowing.   "I have 12 Cowboys in the theeee building!!!!".  According to another tweet,  "These fools are buying Ace on top of Ace!!!!" Ace is believed to be Ace of Spades, a champagne that is often consumed by celebrities and is popular on the night club circuit.  One of the players present was Jerry Brown, who died when the car he was riding in crashed.  That car was driven by teammate Josh Brent.  Brent has been arrested and charged with intoxication manslaughter.    Earlier this year, Jackson tweeted "And the special orders these NBA players are *STILL* putting in for tomorrow...craziness! ACE.ACE.ACE. #PRIVAE SOLD OUT since Monday!"  She also tweeted earlier this year that "The bottle requests that are flooding my texts rgt now...Glad we keep a crazy stock of Everything!  Ace on deck! #NFLtakeover #PRIVAE".  Now, the state is investigating whether alcohol was "served to somebody who was intoxicated, which is illegal in Texas," a spokeswoman for the Texas ABC Board said. 

Practice pointers.  So, what are the potential ramifications of the tweets?  Will Ms. Jackson lose her job?  Will Privae lose their liquor license?  Will Privae be sued by Brown's estate for serving alcohol to an intoxicated patron, resulting in his death?  If employees are tweeting, or using other social media to promote a company, the company should be aware of what is being said and make sure that it is not detrimental to the very existence of the company itself. 

DEFAMATION LAWSUIT FILED FOR BAD REVIEW.  The Pittsburgh Post Gazette reports that Christopher Diaz, a Washington, D.C.  home contractor has filed a suit against Jane Perez as a result of Perez posting  negative comments on Yelp.  Perez "listed a number of accusations , including damage to her home, an invoice for work the contractor did not perform and jewelry that disappeared."  One  post ended "Bottom line do not put yourself through this nightmare of a contractor."  Dietz filed a $750,000 lawsuit, as well as a request for an injunction prohibiting Perez from posting any more reviews of his business.  He alleges that customers fled from him, and he lost over $300,000 of business.  Perez, a retired captain from the military, is now facing a large of amount in legal expenses in defending the lawsuit. Although she removed the posts because they came up first on a google search, she is standing by her reviews.  According to the article, there was a $1.6 million verdict in California against a blogger who accused a company of stealing money from business associates.  Also, a woman in Florida obtained  a $11.3 million verdict against a woman who called her a "crook' and "con artist" in an internet forum.  I am also familiar with other verdicts in the the hundreds of thousands of dollars in Georgia and Texas.

 Practice pointer.  Be careful what you post on line.  Even if posted anonymously, there are ways to determine who posted it.  Defamation is defamation, whether it is spread by word of mouth, in the newspaper, or on the internet.  I expect to see more of these cases being filed in the future.

DON'T SURF THE WEB AND WALK AT THE SAME TIME.  Closer to home, AL.com reported that UAB, using part of a $1.3 million NIH grant, found that crossing the street while surfing the web made it twice as likely that you would be hit or have a close call as when you crossed the street without a distraction.  Using a virtual cross-walk in a UAB laboratory, students crossed with no distractions, and then crossed using their cell phones while surfing the web.  With 92 participants, the study found that when surfing the web, their eyes were off the road 60% of the time, while their eyes were off the road less than 1% of the time when they weren't distracted.  I would imagine that similar results could be found when surfing the web while driving, riding a bike, or other activities that need your attention.  Be careful when using your phones when you shouldn't be. 

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Over the past several years, I have often mentioned the Kravitz case when I have spoken about Social Media, Policies, and the ownership of Social Networking sites.  A brief history:  Kravitz worked for PhoneDog, and his twitter account was @phonedog.  He left, and changed the account to @noahkravitz.  He took the 17,000 followers with him.  PhoneDog had no policy about ownership of the Twitter account.  After Kravitz left, PhoneDog sued him, seeking damages of $2.50 per follower, per month, or $34,000 per month.  According to Daily Dot, the case recently settled, with the terms not being disclosed.  The Daily Dot speculated that the reason for the settlement may be that a year ago, PhoneDog had 15,000 followers, and this has increased by 12,000 over the past year.  During the same time, Kravitzs' followers have grown from 22,000 to 23,000.  Kravitz did tweet that "We have reached an agreement" and "I'm like a honey badger in a hurricane".  Although the details of the settlement could not be confirmed, Daily Dot quoted Mashable that noted "it sounds like no money is changing hands for Twitter followers."

Practice pointers.  It is important for companies to have policies in place about who owns social networking accounts when they are used on behalf of the company.  PhoneDog did not have any, and the result was an extended legal battle.  Although no money may have changed hands as the result of the settlement, it is safe to say that the real winners were the attorneys, who were probably paid a large sum for fighting the fight.  A simple policy that the Twitter account was owned by PhoneDog would probably have prevented the need for litigation.  As we approach the new year, now is a good time for companies to review and revise their policies and procedures, to bring them current with the existing business and legal environment. 

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Last week, I attended the 6th Annual American Bar Association's Annual Labor and Employment Law conference.  It was attended by lawyers from around the world, and focused on the current state of labor and employment law and what the hot topics of today and the immediate future.  In no particular order, here are some of the topics talked about:

1.  The National Labor Relations Board has been very active pushing it's agenda, and focusing on policies and procedures.  Remember that the National Labor Relations Act provides protection to employees who engage in protected concerted activity as it relates to the terms and conditions of employment, in both union and non-union settings.  The NLRB has recently addressed polices concerning social media, at will employment, and the confidentiality of investigations as the result of allegations of harassment and discrimination.

2.  Retaliation charges filed with the EEOC are now number one in that 37% of all charges filed contain allegations of retaliation.  This is a higher percentage then race and sexual harassment charges.

3.  The Fair Labors Standards Act continues to account for a great deal of litigation, both for overtime and misclassification of workers as either exempt or as independent contractors.

4.  The improper use of computers can lead to both criminal and civil liability under the Computer Fraud and Abuse Act, the Electronic Espionage Act (criminal only), the Electronic Communications Privacy Act, the Stored Communications Act, and various state laws.  The local U.S. Attorneys' office has a Computer Hacking and Intellectual Properties (CHIP) lawyer, and can be contacted should there be any issues.  You can visit Cybercrime.gov, for more information and resources from the Department of Justice.

5.  The EEOC continues to be busy, but like most governmental agencies claims a budget shortfall.  The EEOC will continue to be active in issuing regulations and enforcement guidance, but will be more selective when filing lawsuits. According to one of the attorneys for the EEOC, they are "trying to push the envelope" in certain areas, including same sex harassment, gender stereotyping, and in the LGBT arena.

6.  Social Media continues to raise concerns in the workplace.  In the U.S., 163 million people, or 53% of the population, use Facebook.  Globally, there are over 1 billion users of Facebook, and there are 2.5 billion posts a day.  There is an average of 3,000 tweets a second, with the record being set during the last presidential debate, with 100,000 tweets per second. The use of other SM sites continues to grow.  

7.  Workplace bullying, both in person and cyber-bullying is growing.

Practice pointer.  As we approach the end of the year,  now is a good time for employers to review and/or have an audit done of their policies and procedures, and revise them as necessary to comply with the changes that have occurred over the past year.  Make sure there is proper classification of employees for FLSA purposes, that the NLRA is not violated, and that other policies are current and up to date.  Now is also a good time to train all workers, including supervisors, on various employment related issues, including harassment, discrimination, social media policies and other workplace rules and regulations. 

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Facebook hits 1 Billion Users.  When Facebook had it's IPO in May, it reported that it had 845 million monthly active users.  Today, Mark Zuckerberg reported that FB hit the 1 Billion mark for monthly active users, 1/7th of the world's population.  In May, it was also reported that FB had 2.7 billion likes/comments a day, 250 million photos uploaded on a daily basis, 100 billion "friendships" and 9.7 billion minutes a day were spent on FB.  These numbers have grown since May.  In comparison, as of June, Twitter had 500 million accounts, with over 100 million tweets a day, YouTube had 200 million views a day, LinkedIn had 150 million users and interest was growing in other SM sites, including Tumblr, PInterest and 4Square.

NLRB Rules on Termination of Salesman.  Over the past 1 1/2 years, I have spoken many times and have always mentioned the case of the car salesman in Illinois who was fired after 2 posts on FB. The salesman had posted critical comments about a sales event:  hot dogs were not good enough for the customers attending a large sales event at the BMW dealership he worked for.  He was compensated in part on customer satisfaction surveys as well as the number of sales he made.  He also posted pictures and comments around the same time about a vehicle accident at the adjoining Range Rover dealership, also owned by the same company who owned the BMW dealership.  He was terminated after these posts were discovered by his employer.  An Administrative Law Judge found that the comments about the sales event were protected concerted activity under the NLRA and he could not be terminated because of this.  However, the ALJ also found that the posting about the Range Rover accident was not protected concerted activity, and thus found his termination was lawful.

Practice Pointer.  The NLRB has been taking a very strong stance about policies and procedures involving the use of social media, and will continue to do so under the current administration.  All companies should review their social media policies and procedures to ensure compliance with the NLRA.  Because this is a very complicated, complex and nuanced area of the law, companies should consult their legal counsel in implementing and/or reviewing their SM policies.

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I have heard of strip poker, strip beer pong (yes, I have 2 sons, one who graduated college last year and another who is a senior in college now), and crazy versions of Twister.  But until yesterday, I had never heard of strip billiards.  Thank You Prince Harry. 

I have spoken a number of times at UAB, to both the Social Media class as well as a fraternity.  I always give two very strong warnings:  First, no matter where you are, if there are other people with you, you may be photographed with a cell phone camera.  Second, when you are with other people, don't do anything that you would not want your mother to see.  Prince Harry failed miserably, and the Queen Mother is not very happy now. 

Prince Harry was in Las Vegas, in a private $8,000 a night suite, playing strip billiards with a number of other people.  A person who was there took photographs with his/her phone camera.  As the New York Daily News  reports, he was seen holding his crown jewels and also hugging an equally naked women.  What happens in Vegas does not necessarily stay in Vegas.

The lessons to be learned?  No matter who you are, you are subject to having your photograph taken at any time.  If this happened to someone who was not a Prince, there is a good likelihood he/she would lose their job.  If this happened to someone in the US military, there is a good chance they would be discharged, or at least severely punished.  Luckily for Ryan Lochte, the US Olympic gold medal swimmer, he knew better than to go to the party.  He was also in Vegas, and Prince Harry asked to meet him, which he did.  The Prince asked Ryan to come up to the party, but he refused.  Maybe he remembered Michael Phelps, after the 2008 Olympics, when he was photographed sucking on a bong on a college campus.  Be careful out there!

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HB 56/Alabama's Immigration Law.  I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees.  This is in addition to the use of I-9's.  Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA.  The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA.  According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."  The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media.  I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc.  Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after  a student sent a text message that read "gunman to be at west hall."  The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message.  The student sending the message was not charged after police discovered what happened. 

FMLA.  The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA.  In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex.  Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex.  Thus states are immune from damages under the Fourteenth Amendment. 

GINA.  Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008.  GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers.  The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA.  Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them. 

Spelling out numbers.  Oftentimes, lawyers are criticized for all the legalize that appears in documents.  One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers.  Every now and then, a lawsuit demonstrates why this is done.  Michael Fox  blogged last week about a lawsuit that went to trial in London.  The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000.  JPMorgan is arguing that it was a typographical error in the numbers.  The numbers were not spelled out. 

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Several weeks ago, I had the pleasure of talking to a fraternity at UAB about the impact of Social Media in the "real world".  Besides my own personal interest in this area, the impact social media has on my clients, and all the crazy stories out there, my 2 sons, 21 and 23, are regular users of social media.  Over the past couple of weeks, there have been a lot of stories on employers asking employees for the passwords to their personal social networking sites.  Although there is no law, per se, prohibiting this, it is not a good idea for many reasons.  In no particular order:

     1.  It is probably against the terms and conditions of the use agreement with the host.

     2.  Employers may find out more information than they really should know, leading to claims of illegal conduct, including discrimination based on age, race, sex, disability, GINA, etc.

     3.  Under the Stored Communications Act, it is illegal, both civilly and criminally, for an individual to access another persons social networking site.  It should be noted that the Justice Department advised Congress that it would not prosecute such violations.

In California, an employee who was responsible for the social media of her employer was injured in a car accident.  She used both company owned and personal social media sites to promote the business.  While she was recovering from her serious injuries, the company accessed her personal sites to continue promoting the company.  She sued, alleging a violation of the Stored Communications Act, and the court is allowing the case to proceed to trial.  In another case, the ex-girlfriend of an undercover detective in New Jersey was charged with identity theft after posing on line as her ex-boyfriend, and making defamatory statements about him.

Speaking of defamation, in Georgia, a Gwinett County jury recently returned an $900,000 verdict against an individual who defamed the plaintiffs (a Husband and Wife) on social media sites.  The plaintiffs had asked the jury for $48,000 for each of them.  This was only the most recent of three social media defamation cases over the past 15 months.  According to the Daily Report, each of these cases resulted in six figure verdicts.

In Washington state,  a judge has ruled that an employee who was fired after she sent her manager a number of Facebook messages about her mental state and the fact that she was thinking of killing herself would proceed to a jury trial.  Ms. Peer was seeking treatment for depression, and she was transferred to an early shift at work.  She complained to her boss about her depression, crying, stress, that she was thinking about committing suicide and that "work feels like a war zone.  I have some serious PTSD.  Walked in the building and automatically started puking this morning".  Although she had a release from her doctors, the company terminated her after she refused to have her medical providers complete accommodation paperwork.  The company, based on the Facebook comments, was "concerned that you are not able to perform your job functions without accommodation, and that attempting to perform your job functions now presents direct risks or threats." 

In New Jersey, a criminal defendant was on trial for selling 1,500 Ecstasy pills to an undercover detective.  Although the trial judge instructed the jurors on a regular basis not to conduct internet research, the foreman confirmed his thoughts through internet research that the defendant would get a minimum of 10 years in jail if found guilty.  The foreman refused to convict, resulting in a hung jury.  After 2 jurors complained separately, the trial judge found the foreman guilty of criminal contempt and fined him $500.  He was facing up o 6 months in jail and a $1,000 fine. 

In New Orleans, an Assistant US Attorney admitted making hundreds of posts at NOLA.com under another name concerning a criminal investigation into a landfill.  He was removed from all cases on which he commented by the US Attorney.  Among the comments he made were allegations that one of the judges "loves killers", and that the US Attorney was taking credit "for other people's hard work.  It is the assistants and agents who do the work and should be congratulated". 

I cannot make this stuff up.  It happens every day.  Be careful what you do on social networking sites and on the internet.  It can get you in a lot of trouble, fired, embarrassed, sued, arrested  or worse. 

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Last week, I gave a presentation for Sterling Education Services in Huntsville.  In attendance were attorneys and HR professionals.  The topic was Social Media and the impact it has in the workplace.  During my research and preparation, I came across a number of interesting items.  Among them are the following:

      Who is Brian Downing?  The Alabama fan who was arrested after a video of him went viral.  The video was of him in a Krystals restaurant in New Orleans, following the BCS game, rubbing his genitalia on the face of a man passed out in the Krystals.  He was charged with Sexual Assault.  His employer, Hibbett Sports, terminated his employment as a result of his actions.

     Who is Roland Martin?  He is a CNN commentator, who, while watching the Super Bowl, saw the underwear commercial starring David Beckham, and tweeted, "If a dude at your Super Bowl party is hyped about David Beckham's H&M underwear ad, smack the ish out of him!#superbowl."  Numerous complaints were made, including those by gay advocacy groups, claiming that the tweet was advocating violence against homosexuals.  Martin was suspended from CNN for this tweet.

     Who is Paul Withee?  He was a middle school math and science teacher and high school football coach in Maine.  He posted a nude photo of himself on Facebook: he says he intended to send the photo to a friend, but mistakenly made it public.  It was only up for 10 minutes, but was seen by a parent who alerted school administrators.  He was fired.

     During the Daytona 500, Brad Keselowski was seen tweeting on the track during a 2 hour race stoppage as the result of an accident.  He gained over 140,000 new followers as a result of the free publicity.

     At a recent Manpower webinar, attendees were asked to text the one word that describes social media in today's workplace.  Of 123 responses, the top 10, including ties, were:

• Necessary (35)
• Distracting (17)
• Dangerous (10)
• Helpful (8)
• Scary (8)
• Growing (6)
• Wasteful (6)
• Annoying (5)
• Complicated (5)
• Essential (5)
• Overwhelming (5)
• Time-consuming (5)
• Useful (5)
• Valuable (5)

It is interesting to note the almost equal split of positive and negative descriptions.  It is here to stay, and employers must learn to make the most of it.

The New York Daily News recently published the results of a survey conducted by 11Mark.  The survey showed that 75% of Americans take their cell phones into the bathroom, 87% of Android users admitted to talking, texting or surfing the web while in the bathroom, 75% of BlackBerry users answered the phone, while 48% made a call, and 52% of iPhone users participated in social networking and 57% used an app.  Of those born between 1977 and 1993, 91% admitted using their phones while seated in a bathroom stall. 

FaceBook has over 845 million users worldwide.  Google+ believes it reached 100 million last month, and the numbers keep going up.  Employers need a social media policy that is in compliance with state and federal laws, rules and regulations, including being compliant with the National Labor Relations Act (NLRA) which protects concerted activity concerning the terms and conditions of employment.  Over the past year, the National Labor Relations Board (NLRB) has been aggressively pursuing companies that discipline, including terminating, employees for social media activity that they deem to be protected by the NLRA.

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Recently, the 11th Circuit reviewed the American with Disabilities Act in  the case of Cunningham v. Nature's Earth Pellets, LLC.  Special thanks to Kelli Robinson, an associate with Sirote for this summary.  Kimberly Cunningham appealed a summary judgment in favor of her former employer, Nature's Earth Pellets, and against her complaint of discrimination in violation of the Americans with Disabilities Act (ADA).  Cunningham argued that Nature's Earth pellets wrongfully terminated her and regarded her as disabled based on her addiction to prescription drugs.  After considering the evidence, the Eleventh Circuit of the United States Court of Appeals affirmed summary judgment in favor of the employer.

The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, or privileges of employment."  To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that she has a "physical or mental impairment that substantially limits one or more [of her] major life activities" or is "regarded as having such an impairment."  Cunningham failed to establish a prima facie case of discrimination based on either an actual or perceived disability.

Cunningham argued that her addiction to anti-depressant medications prevented her from resolving other mental disorders, caused her to suffer about ten panic attacks a month, and interfered with her ability to breathe, concentrate, interact with others, and care for herself; but, Cunningham failed to establish that any of these impairments were or were regarded as substantially limiting. Cunningham testified that she was able to breathe and get ready for work; she performed regularly the tasks of a shipping clerk, which required her to monitor the supply of company products and coordinate deliveries of those products; and, she exercised sufficient independence of thought and concentration to withdraw from a rehabilitation facility against the advice of her physicians.

Even if Cunningham had established a prima facie case of discrimination, she failed to prove that the legitimate reason proffered for her termination was pretextual.  Nature's Earth Pellets introduced evidence that Cunningham had been terminated because of her extensive absenteeism and the number of final warnings that she had been given under the company's progressive discipline system.  To establish pretext, Cunningham was required to provide that the "proffered reason was not the true reason for the employment decision ... either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation was unworthy of credence."  Despite Cunningham's argument that Nature's Earth Pellets had not considered terminating her for past infractions of its leave policy, the court did not find that the employer's decision to fire Cunningham this time lacked credence.  The court agreed that, based on Cunningham's history of absenteeism, Nature's Earth Pellets legitimately terminated Cunningham and, therefore, the court affirmed the summary judgment in favor of the employer.

Practice Pointer.  The Cunningham decision shows the importance of documenting problem employees.  Because there was a clear record of excessive absenteeism and progressive discipline, the Court was able to decide that there was no pretext in the decision to terminate Cunningham.

 Social Media impacts job applicants.

The New York Times published an article entitled "Social Media History Becomes a New Job Hurdle" examining the use of social media searches as a background check.  Social Intelligence, a year old company, performs internet searches that go back 7 years to look for conduct that may disqualify an applicant for the job.  Several instances of what I call stupid conduct are cited, including a women on Craigs List looking for Oxycontin, a woman posting nude pictures on an image-sharing site, instances of people making racist remarks, anti-Semitic remarks, and evidence of violent activity.  Interestingly, less than a third of the information found comes from social networking platforms like Facebook, Twitter and MySpace.  Rather, much of the negative information comes from blogs, user groups and other sharing sites.  Photographs and videotapes seem to cause the most trouble.

Practice pointer.  It is important that you control, the best you can, what you put up on the internet.  It is also important to monitor what other people post about you, whether it be in pictures, videos, or comments. 

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                 On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.

Today, Molly DiBianca, in her blog, The Delaware  Employment Law Blog, reported that an employee and her supervisor were Facebook friends.  After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee.  When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her.  As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."

Practice pointers.  With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace.  When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB. 

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Social networking sites continue to cause problems for many employees, including attorneys.  In a recent article entitled "Lawyers "step in it" Through Social Media Incompetence", a number of stories are discussed concerning lawyers who have found themselves in trouble through the use of social media.  These include a North Carolina Judge who was reprimanded for "friending" a lawyer in a case he was assigned to, and discussing the case on Facebook; a California lawyer was suspended from practice for 45 days for blogging about a trial in which he served as a juror: a Florida lawyer was fined $1,200 for blogging that a particular judge was "an evil, unfair witch"; and an Illinois public defender had charges filed against him for posting confidential client information on his blog, including first names and jail identification numbers. 

A short but interesting article  published by The Advertiser entitled "Should social media be part of the workplace?" is a common sense review of the pitfalls of social networking in the workplace.  Aileen Bennett writes,"With privacy settings dubious at best and other people being able to take our information and copy and share, we must presume that everything we put on line is public.  If you are writing something that you don't want your boss to see, my advice would be not to write it.  if you are sharing someting that you wouldn't tell your mother, don't share.  If you are updating your status with information that you wouldn't share with 500 strangers, think again."

Last week, USA Today ran a front page article entitled "Latest police weapon: iWitness".  According to the article, iPhones store a great deal of information, including screen shots after mapping applications are closed, the user's browser history and GEO tags and identifying information with photos posted online.  Law enforcement is being taught how to retrieve iPhone data in criminal investigations.  It is only a matter of time before iPhones will be forensically examined in civil cases and internal investigations involving employee issues.

Practice pointer.  Social media policies should be in place at corporations and other places of business.  This will give some guidance to both employers and employees as to what can and should be done while using social media. 

Update on June 2 post

On June 2, I posted an entry addressing the termination of a white football coach at an historically black university and the coach's filing of a lawsuit alleging discrimination. The Atlanta Journal Constitution now reports that 4 white students have filed suit against Savannah State University alleging that their football scholarships were pulled because they are white.  It will be interesting to see how these lawsuits progress. 

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Last week, I lectured at the UAB's Social Media class that is part of the School of Business on how social media impacts the workplace.  Having two sons in college, who use social media on a regular basis, this topic is near and dear to me.  We talked about how HR managers are using online searches to check on potential and existing employees, and that improper postings may prevent one from being hired, or get an existing employee fired.  We discussed the fact that when you begin working at a new job, it is likely that at least one of your new co-employees will investigate you online to learn more about you.  So, the question becomes what is inappropriate?  The answer is not clear, since it depends on who is doing the hiring and firing.  I emphasized the use of common sense, if there is a picture, joke or comment that you would not show/tell your mother, it should not be posted on line.  These may include pictures in various states of undress, skimpy clothes, drinking, using drugs (remember Michael Phelps?), carrying firearms, racial/sexual jokes/comments, or criticizing current or past employers or supervisors.  I advised the class that there is nothing wrong with keeping a personal album of photographs from their college days, but if there is anything that is even close to being questionable, it should not be posted online.  This includes pictures that may be posted on their friend's sites, since the links can be easily traced. 

Yesterday, Stephanie Goldberg wrote an article for CNN.com entitled "Young job-seekers hiding their Facebook pages".   Ms. Goldberg's article notes that 70%of recruiters and hiring managers have accessed the Internet and rejected candidates based on what they found online.  She refers to a Microsoft survey that reveals that 79% of hiring managers use the Internet to better assess applicants.  One of the questions asked last week in class was about the possibility of setting up 2 different Facebook pages: one for professional purposes, and one for "fun" under a different name.  I advised the student that that was not a good idea, since there may be links or other ways of finding both sites. Ms. Goldberg also answered this question when she noted a student who did just this changed his alias after 2 weeks "when he realized Facebook users also can be searched by e-mail address, school and network...". 

Ms. Goldberg quotes several students who have changed their privacy settings to restrict access to their Facebook pages to only their "friends".  She even referred to a career counselor at Penn State who recommends "that students with potentially incriminating photos or posts change their name on social networking sites."  One of the students last week at UAB asked a similar question: what if i restrict access to my photographs?  My response to that question was what if the HR person interviewing you asks you during the interview to access your Facebook page?  If you say no, at least in Alabama, which is an employee at will state, you may not be hired.  If you say yes, and permit access, and there is inappropriate material, you may not be hired.  So, it boils down to why take the chance.

Practice pointer.  Any employee or perspective employee needs to seriously consider what information is available about him/her on the Internet: if it is inappropriate, it may have an adverse impact on your employment.  This is true even if access is restricted to your own social networking sites or you use a alias: there are ways gain access, both legally and illegally.  The bottom line is to use common sense:  if you would not want your mother so see the picture or hear the joke, don't put it on the Internet. 

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On May 1, I published an entry addressing social networking in the workplace.  Subsequent to that time,  I had the opportunity to give another presentation on social networking.  Some interesting questions were asked by attendees that raised additional issues that need to be considered by employers when their employees are using social networking sites for business purposes.  One company permits its workers to use social networking sites to communicate for business purposes after regular business hours.  This raises questions concerning the FLSA and overtime: if non-exempt employees are conducting company business from their personal computers/PDAs, after regular business hours, are they entitled to compensation, including overtime if they work more than 40 hours a week?  Are the employees "on call", thus entitling them to compensation?

Another issue is the ownership of the information exchanged between an employer and an employee on personal computers/PDAs: should someone leave their employment, can they use information on their personal computers/PDAs when they start working for someone else who is a competitor?  Is the information confidential if no steps are taken to make it confidential?

One question that was asked had ADA implications:  a supervisor learned from a social networking site that one of the employees was suffering from depression.  Did the supervisor have an obligation to report this to HR?  If so, did HR have an obligation to go through the interactive process with the employee to determine if the depression was impacting his ability to work?  If so, were there any reasonable accommodations that could be made?

Practice Pointer.  Technology is moving too fast for the courts to keep pace.  Answers to these questions, and many others, will take years to wind their way through the courts.  In the meantime, it is recommended that employers adopt appropriate policies and procedures concerning the use of social networking sites for company business, and confidentiality and ownership of information that may be on personal computers/PDAs. 

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