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GETTING A LEGAL GRASP ON SOCIAL MEDIA

GETTING A LEGAL GRASP ON SOCIAL MEDIA. Presented by: Jeffrey D. Litts Kegel Kelin Almy & Grimm LLP PASBO 57 th ANNUAL CONFERENCE March 7, 2012. ________________________________________________________________________________________

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GETTING A LEGAL GRASP ON SOCIAL MEDIA

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  1. GETTING A LEGAL GRASPON SOCIAL MEDIA Presented by: Jeffrey D. Litts Kegel Kelin Almy & Grimm LLP PASBO 57thANNUAL CONFERENCE March 7, 2012 ________________________________________________________________________________________ 24 North Lime Street, Lancaster, PA 17602 TEL: 717-392-1100 FAX: 717-392-4385 www.kkaglaw.com

  2. Social Media Creates New Twists on Old Issues in the Workplace • Productivity • Hiring • Discipline/Firing • Selective Policy Enforcement • Unauthorized Access to Accounts • First Amendment • Fourth Amendment

  3. Social MediaIs it a productivity killer?

  4. Social Media Is it a productivity killer? YES • 25% of employees visit social media sites while at work and on employer’s computer (Trend Micro) • 30-75 minutes per day on non-business on-line activity (Insight Express, Digital Manufacturing Research)

  5. Social Media Is it a productivity killer? NO • University of Melbourne. Study showed employees who spend up to 20% of time surfing the web were 9% more productive than those who did not. • 2009 Ball State University Study – employees spent 9 times more time on cigarette breaks than on Facebook.

  6. Social Media Is it a productivity killer? REGARDLESS: Employers have the right to limit personal social media use during work time and on company technology.

  7. SOCIAL NETWORKING AND EMPLOYMENT LAW • Use of Social Networking Site and Internet Searches in Hiring Practices • Disparate Treatment When Disciplining Employees for Violations of School District’s Technology Policies. • Supervisors’ unauthorized access of employees’ electronic accounts, files, etc.

  8. Hiring: Social Media as Screening Tool It’s Effective • 70% of recruiters and HR professionals reported rejecting candidates based on information discovered on-line: → Inaccurate resume information → Character flaws or values that do not match company’s → Ability/inability to exercise discretion → Writing/grammar skills → Etc. Source: Young job-seekers hiding their Facebook pages, CNN.com 3/29/10).

  9. Hiring: Social Media as Screening Tool Use In Hiring Practices What you can’t ask an applicant: • How old are you? • What’s your maiden name? • What church do you attend? • Do you have any children? • What is your national origin? • Are you disabled?

  10. Hiring: Social Media as Screening Tool

  11. Hiring: Social Media as Screening Tool Use In Hiring Practices What Did We Discover? • Gender • Marital status • Religion • Political views • Children/pregnant • Age • Race

  12. Hiring: Social Media as Screening Tool Use In Hiring Practices What Else Could You Discover? • Photos or posts of employee behaving badly • Disparaging remarks about former employer, co-workers or clients • Statements reflecting general character and judgment of candidate • Inconsistencies and inaccuracies in qualifications • Poor communication/writing skills

  13. HiringInability to Exercise Discretion?

  14. Hiring Evidence of an Applicant’s Writing Skills (or lack thereof)

  15. Hiring: Social Media as Screening Tool Beware of the “failure to hire” claim!! You may discover information you otherwise would not be entitled to as an employer and upon which you cannot base a refusal to hire, e.g., any “protected category”

  16. Hiring Continued Can you require applicants to provide access to their Facebook page, identify user name and passwords for Twitter, or other online memberships, etc? Should you?

  17. Discipline and Firing Can you discipline an employee for on-line posts, tweets, blogs, videos, etc.? Does it make a difference if the posts are made on the employee’s own time and posted from employee’s personal computer versus the employer’s technology?

  18. Professor Venting = Suspension and Psych Evaluation

  19. Discipline and Firing What is Google’s Social Media Policy? “Don’t be stupid”

  20. Can You Fire an Employee For Being Stupid?

  21. Can You Fire an Employee For Being Stupid?

  22. Can You Fire an Employee For Being Stupid?

  23. Discipline and Firing Continued School Code provides most school employees with job protections ISSUES TO CONSIDER BEFORE YOU DISCIPLINE: • Protected concerted activity American Medical Responders (a/k/a “NLRB Case”) • Selective policy enforcement • Potential retaliation claim • Protected categories

  24. Discipline and Firing Continued ISSUES TO CONSIDER BEFORE YOU DISCIPLINE: • How was the information obtained ? (remember the SCA) • Is the discipline consistent? • Content and Context

  25. Facebook Firing Finally Challenged American Medical Resp. of Conn., Inc., et al., Case No. 34-CA-12576 • Employee requested and was denied union representation after report of a customer complaint • Employee subsequently posted a negative comment about her supervisor on her Facebook page; co-workers added supportive comments; employee further disparaged Employer • Employee is fired • Were the Facebook postings and comments “protected concerted activity?”

  26. SOCIAL NETWORKING AND EMPLOYMENT LAW Employees: Selective Policy Enforcement • Employer denied summary judgment on discrimination case because jury could find employer selectively enforced its e-mail policies and used more severe discipline with employees in certain protected class. Williams v. Wells Fargo Financial Acceptance Corp., 864 F. Supp. 2d 441 (2008).

  27. SOCIAL NETWORKING AND EMPLOYMENT LAW Employees: Selective Policy Enforcement • Employee did not suffer discrimination as a result of being fired for visiting gun Websites in violation of employer’s computer-use policy, when other employer not disciplined for accessing social networking sites. Jackson v. Planco, 660 F.Supp.2d. 562 (E.D. Pa. 2009).

  28. SOCIAL NETWORKING AND EMPLOYMENT LAW Unauthorized Access to Electronic Accounts • Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s – Jury concluded that the managers violated Stored Communication Act by coercing a subordinate employee into allowing them access to a MySpace chat room to monitor plaintiffs’ postings.

  29. Unauthorized Access to Electronic Accounts Electronic Communications Privacy Act (“ECPA”) • Makes it unlawfully for any “person” to intentionally intercept “electronic communications.” • ECPA creates private right of relief for violations, which include equitable relief, punitive damages and attorneys’ fees.

  30. Unauthorized Access to Electronic Accounts Stored Communication Act •  Makes it a crime for any “person” to either: •  intentionally access without authorization a “facility” through which an “electronic communication service” is provided; or • intentionally exceed an authorization to access the facility, and to obtain, alter or prevent authorized access to electronic communication while it is electronically stored. • Section 2707 of the SCA provides for a civil remedy whereby aggrieved persons may seek injunctive relief, actual and/or punitive damages and attorney’s fees.

  31. Unauthorized Access to Electronic Accounts Pennsylvania Wiretapping and Electronic Surveillance Control Act • State Law equivalent of ECPA and SCA • Com. v. Cruttenden, 976 A.2d 1176 (2009) – police officer’s warrantless intercept of text messages violated PA wiretap law. • Police officer’s unauthorized use of another officer’s password to access digital data in violation of department policy did not constitute “unauthorized access” under state’s computer crime law. State of N.J. v. Riley, 988 A.2d 1252 (N.J. Super. 2009).

  32. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES • Newspaper headlines regarding employee Facebook gaffes: • teacher forced to resign after students discovered her Facebook with photos of her drinking alcohol and a reference to “Bitch Bingo.” • teacher placed on administrative leave for posting a photograph of herself with a gun on her Facebook page. • teacher suspended after someone posted photos of her with a male stripper on a Facebook page. • professor placed on administrative leave for making a joke on her Facebook page about hiring a hitman.

  33. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES SUPREME COURT JURISPRUDENCE • Pickering v. Board of Education, 391 U.S. 563 (1968) • School employees have First Amendment rights to speak on matters of “public concern.” • If speaking on matters of “public concern,” school employees face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.

  34. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES Connick v. Myers, 461 U.S. 138 (1983) • What is a matter of public concern? • Connick held “speech on matters of political, social or other concern to the community” is protected by the First Amendment • However, when an employees speaks “upon matters only of personal interest, absent the most unusual circumstances” a court is not the appropriate forum to review personnel decisions

  35. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES • Rankin v. McPherson, 483 U.S. 378 (1987) • Relevant considerations when balancing employee’s 1st Amendment rights against government interest • Statements impair discipline by superiors; • Impact harmony among co-workers; • Have detrimental impact on close working relationship for which personal loyalty and confidence are necessary; or • Speech impedes employee’s performance of duties.

  36. FIRST AMENDMENT AND SOCIAL MEDIA - EMPLOYEES Garcetti v. Ceballos, 547 U.S. 410 (2006) • When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. • Expressive conduct is protected by the First Amendment, if: • the public employee spoke as a citizen; • on a matter of public concern; • the employee’s interests in disseminating the particular ideas expressed outweigh those of the public employer in restricting them.

  37. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES Snyder v. Millersville University, 2009 WL 5093140 (E.D. Pa. December 3, 2008) • A student teacher did not have her First Amendment free speech rights violated when she was removed from student teaching program and denied education degree due to MySpace web pages about her found on the Internet. • Student’s website posting was not speech touching on matters of public concern.

  38. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. 2009) • A special education due process hearing officer did not have her First Amendment free speech rights violated when her employment contract was not renewed due to her advocacy in blog posting regarding special education issues. • The hearing officer’s conduct potentially undermined the integrity of the due process hearing system to resolve special education issues based upon specific parties raising concerns regarding her impartiality.

  39. FIRST AMENDMENT ANDSOCIAL MEDIA - EMPLOYEES Richerson v. Beckon, 2009 WL 195436 (9th Cir. 2009) • A school district administrator’s First Amendment free speech rights were not violated after she was demoted to a classroom teaching position as a result of posting on her personal internet blog. • The administrator’s public blog contained highly negative comments regarding school employees, which severely impaired her ability to work with them. Thus, legitimate administrative interests of the school district outweighed the administrator’s First Amendment interests in not being transferred because of her speech.

  40. FIRST AMENDMENT AND SOCIAL MEDIA - EMPLOYEES Spanierman v. Hughes, 576 F. Supp.2d 292 (D. Conn. 2008) • Non-renewal of high school teacher’s contract following the discovery of his MySpace profile and activity did not violate First Amendment. • Court found teacher’s MySpace activity with students was disruptive to school activities

  41. FIRST AMENDMENT AND SOCIAL MEDIA - EMPLOYEES School District Advice • School Districts may want to adopt written social media policies for employees. • School District employees should understand pitfalls of “friending” students on social networking sites. •  School Districts should investigate alleged employee of social media abuses.

  42. Employee’s Use of Social Media Other Issues • Can you monitor employee’s online activity? • YOU BET! Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996) (Employees have no expectation of privacy in e-mails sent, stored or received at work) • Must you monitor? • MAYBE – Doe v. XYZ Corp., 887 A.2d 1156 (N.J. Super. App. Div. 2005) (when put on notice, employers have a duty to investigate and stop unlawful conduct)

  43. SOCIAL NETWORKING AND EMPLOYMENT LAW Advice for School Districts • SD social media rules or protocols should be consistently enforced on a district-wide basis. •  SD administrators must know that monitoring employee social media usage can create problems; they cannot use passwords without the proper authorization to gain access to employees’ electronic accounts, files, etc.

  44. FOURTH AMENDMENT AND SOCIAL MEDIA • School District searches of student’s personal electronic media. • School District searches of employees’ workplace technology • State and federal laws protecting electronic communications.

  45. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS New Jersey v. T.L.O., 469 U.S. 325 (1985) • Supreme Court held that school officials may search students as long as the search is reasonable; the search must be justified at its inception and reasonable in scope. • Search is justified when there are reasonable grounds for suspecting that the search will turn up evidence of student wrongdoing; and • Scope of search is permissible when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive.

  46. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS Klump v. Nazareth Area School District, 425 F. Supp. 2d 622 (E.D. Pa. 2006). • Court found the confiscation of the cell phone was justified because the student violated the school policy. •  However, search was unreasonable in its scope because school officials “had no reason to suspect at the outset that such a search would reveal that the student was violating another school policy.”

  47. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS Robbins v. Lower Merion School District, et al., • Class action suit against SD for issuing students laptop computers equipped with web cameras, which were allegedly used to unlawfully acquire and export personal data and communications. • The lawsuit alleges SD personnel unlawfully spied on students by remotely activating the laptop webcams in violation of the Fourth Amendment.

  48. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS N.N. v. Tunkhannock Area School District • Student’s cell phone confiscated for violating school rules, principal alleged searched through cell phone and uncovered nude images the student had taken of herself. • ACLU filed suit “because many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one.”

  49. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS High School officials investigated for mishandling images in ‘sexting’ case • Parent alleged that pornographic images from confiscated student cell phones were “passed around” by school officials. • DA said that school employees could be charged with displaying child pornography, if they showed the images to people not involved in the school investigation.

  50. FOURTH AMENDMENT ANDSOCIAL MEDIA - STUDENTS Advice for School Districts • School administrators must understand and follow T.L.O. standards before searching students’ PEDs. • School officials should seek solicitor advise before performing searches to avoid potential legal problems.

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