7th Annual Fundamentals of Employment Law Sterling Education Services, Inc.

1. 7th Annual Fundamentals of Employment LawSterling Education Services, Inc. Employee Privacy in the Workplace Patrick O. Peters, Esq. Ohio State Bar Association Certified Specialist in Labor & Employment Law January 18, 2011

2. Whose Computer Is It? Employer’s Right To Monitor E-Mail • The Risks and Rewards of Monitoring Employee Internet Use and Social Networking

3. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Social Networking: • Facebook, LinkedIn, Twitter, YouTube, Flickr, MySpace, blogs, message boards, etc. • Facebook supports more than 500 million active users. • Average Facebook user is connected to 80 community pages, groups and events, and has 130 friends. • More than 1 million websites have integrated with the Facebook platform. • LinkedIn reports over 70 million members, with approximately half of the members outside the U.S. • A new member joins LinkedIn approximately every second. • Executives from all Fortune 500 companies are members of LinkedIn.

4. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Treasure Trove in Litigation • Informal recommendations • Current employment, employment history • Photographs • Description of physical activities • Identification of potential witnesses

5. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Considerations for Monitoring • How access obtained • Is the account public or private • Is the content legally protected • After monitoring, then what?

6. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Legal Risks of Monitoring • Invasion of privacy • Concerted activity • National Labor Relations Act – protects employees’ use of email for “concerted activity,” including for purposes of “mutual aid or protection.”

7. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Email to COO that was critical of the employer’s changes to vacation policy was in pursuit of mutual aid or protection (of the former policy and of the other employees) even where “unpleasantries” were uttered. Timekeeping Systems, Inc. v. Lawrence Leinweber, 323 NLRB No. 30 (1997). • Email rule prohibiting employees from using employer’s email system to distribute union literature held to be discriminatory where employer allowed employees to use email system to distribute materials about all other topics, and for matters that had nothing to do with the employer’s business. E.I. du Pont de Nemours and Co., 311 NLRB 893 (1993). • NLRB has sued American Medical Response of Connecticut alleging that the employer violated the NLRA by terminating an employee for criticizing her supervisor on Facebook and by maintaining and enforcing an overly broad blogging and internet posting policy. Hearing set for January 25, 2011.

8. Whose Computer Is It? Employer’s Right To Monitor E-Mail • Federal Wiretap Act, Electronic Communications Privacy Aact & similar state laws • Whistleblower protection • Lawful off duty-activity • Political affiliation/activity

9. Information Disclosure • Right to Privacy • U.S. Constitution • Primarily applicable to public employees although, in some circumstances, may also be applicable to private employers. The U.S. Supreme Court has recognized a right to privacy in the Bill of Rights. Courts use a balancing test to weigh the invasion of an employee’s legitimate expectations of privacy against a public employer’s need for supervision, control, and efficient operation of its workforce.

10. Information Disclosure • Ontario v. Quon, 130 S.Ct. 2619 (2010) • The Supreme Court dodged the broader question of whether one has a reasonable expectation of privacy in electronic communications, narrowly holding that there was no violation of privacy where messages on government-owned pager were reviewed and employee disciplined for personal use on duty. • Rejected 9th Circuit Court’s reasoning that employer must use least intrusive means of searching

11. Information Disclosure • Balancing test weighs privacy interests of employee versus legitimate business interests of the company: • “I just don’t know how you tell what is reasonable,” Chief Justice John G. Roberts, Jr. said. “I suspect it might change with how old people are and how comfortable they are with technology.” • “I think if I pay for it, it’s mine and not the employer’s.” • Justice Stephen G. Breyer said that a certain amount of personal texting was to be expected. “You want to let them have a few,” Justice Breyer said. “You need pizza when you are on duty.” • Chief Justice Roberts warned against devising a legal rule that “would require people basically to have two of these things with them, two of whatever they are – the text messenger or the BlackBerrys or whatever.” • The harder question, several justices suggested, was that of the privacy of the people with whom Sergeant Quon communicated.

12. Information Disclosure • U.S. v. Warshak, 6th Cir. Nos. 08-3997/4085/4087/4212/4429; 09-3176 (Dec. 14, 2010) • Although not an employment case, the Sixth Circuit recognized that individuals enjoy an objectively reasonable expectation of privacy in their commercially-stored email accounts: • “Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, “account” is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner’s life…” • “Email is the technological scion of tangible mail, and it plays an indispensable part in the information Age. Over the last decade, email has become ‘so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument [] for self-expression, even self-identification.’ … It follows that email requires strong protection under the Fourth Amendment …”

13. Information Disclosure • Ohio Common Law • Ohio recognizes four separate invasion of privacy torts: (1) the unwarranted appropriation or exploitation of one’s personality, (2) the publicizing of one’s private affairs with which the public has no legitimate concern, (3) the wrongful intrusion into one’s private activities, and (4) the “false light” theory. • Under the false light theory, it is a tort to give “publicity to a matter concerning another that places the other before the public in a false light … if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Welling v. Weinfeld, 113 Ohio St.3d 464, 866 N.E.2d 1051, 2007-Ohio-2451.

14. Information Disclosure • Exampled of acts that have resulted in successful invasion of privacy claims in Ohio: • Employer spied on employee by having a supervisor hide in the ceiling of the restroom to conduct surveillance of the employee. • Employer’s search of employee’s motel room for stolen book, based on good faith belief that employee had taken the book, constituted actionable invasion of privacy. • Examples of acts that the Ohio courts have held do not constitute an invasion of privacy: • Drug testing of employee or prospective employee has been held not to constitute an actionable invasion of privacy. • Employer, in response to a subpoena, sent employee’s husband’s attorney a report concerning employee’s conversations relating to sexual conduct involving children. Court held that this was not an actionable invasion of privacy as the employer was merely reporting conversations the employee held with other employees.

15. Information Disclosure • Balancing test weighs the privacy interests of the employee against the legitimate business interests of the company. • An employer’s search of company-issued laptop to protect confidential information was not highly offensive, even where the employee could purchase the laptop upon leaving the company. Hilderman v. Enea TekSci, Inc., 551 F.Supp.2d 1183 (S.D. Cal. 2008). • “[A]n employer may monitor when an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.” Stengart v. Loving Care Agency, Inc., 973 A.2d 390, 401 (N.J. Super. 2009). • However, policy stating that all communications on the employer’s systems belong to the employer and that employees should have no expectation of privacy for any such communications, but permitting “occasional personal use,” is ambiguous. The Stengart court held that an employee could interpret “occasional personal use” as suggesting that such communications were distinguishable from business-related communications and, in fact, personal, privileged communications. Thus, the Court held that the employer’s access might not extend to such communications, even from its own systems.

16. Information Disclosure • Employer policies, employee knowledge, and agreements can destroy the reasonableness of an expectation of privacy. • Merely moving emails to a “personal folder” does not provide a reasonable expectation of privacy where (1) the emails were transmitted through the employer’s network, (2) the emails were saved on an employer computer, and (3) the employer had a policy of monitoring all files and communications on its equipment. Thygeson v. U.S. Bancorp, 2004. WL 2066746 (D. Or. 2004). • An employee’s knowledge that the company monitors employee emails destroys an employee’s reasonable expectation of privacy. Bourke v. Nissan Motor Corp., App No. B068705 (Cal. Ct. App., July 26, 1993). • An announcement by the company that it may search company-issued equipment at any time destroys an employee’s reasonable expectation of privacy. Muick v. Glenayre Elec., 280 F.3d 741 (7th Cir. 2002). • An agreement in writing that the employer may search employer-issued equipment destroys an employee’s reasonable expectation of privacy. TBG Ins. Servs. Corp. v. Superior Court, 96 Cal. App. 4th 443 (Cal. App. 2d Dist. 2002).

17. Information Disclosure • Statutes Implicating Privacy Interests • Americans with Disabilities Act (“ADA”) • Prohibits employers with 15 or more employees from disseminating confidential information obtained through medical examinations, revelations, or inquiries. Such information must be maintained separately and supervisors should not be given access unless there is a business-related reason. The ADA also prohibits an employer from attempting to discover whether an employee has a disability through personal inquiries or other invasions into an employee’s privacy. • Ohio law also requires an employer to maintain the confidentiality of employee medical records by keeping such records separate from personnel records and to disclose medical information to other employees only on a need-to-know basis. • Medical information obtained pursuant to leave requests under the Family and Medical Leave Act of 1993 (“FMLA”) also must be maintained in confidence under the ADA’s confidentiality provisions as the FMLA allows employers to obtain certain medical information from employees to support a claim for leave.

18. Information Disclosure • The Electronic Communications Privacy Act of 1986 • Title I – Wiretap Act • Title II – Stored Communications Act (“SCA”) • An employer who accessed a former employee’s personal email account could be held liable for punitive damages and attorney’s fees under the SCA, even without proof of actual damages. Van Alstyne v. Electronic Scriptorium Limited, 560 F.3d 199 (4th Cir. 2009). • Pietrylo v. Hillstone Restaurant Group, Dist. No. No. 06-5754, 2009 WL 3128420 (Sept. 25, 2009) • Restaurant terminated two employees for purportedly damaging employee morale and violating restaurant’s “core values” by posting comments and hosting chats about the restaurant’s management using their MySpace accounts. • Managers accessed employees’ password-protected accounts five time without authorization. Employees gave managers their logins and passwords over fears that they would “get into trouble.” • Terminated employees awarded backpay, punitive damages, and attorney’s fees.

19. Information Disclosure • Exceptions relevant to the workplace • Ordinary course of business: Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001), for the exception to apply, the use must be: • For a legitimate business purpose; • Routine; and • With notice. • A conversation involving an employee regarding his resignation and future employment plans was personal in nature. Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir.1983). • Church did not have “business interest” in protecting minors while listening to a youth ministers’ explicit homosexual conversation. Fischer v. Mt. Olive Lutheran Church, 207 F. Supp.2d 914 (W.D. Wis., March 28, 2002).

20. Information Disclosure • Service provider exception • In providing a reservations system for travel agents, American Airlines is a “service provider.” United States v. Mullins, 992 F.2d 1472 (9th Cir.1992). • A police department could retrieve text messages stored in its system because the text message system was a “service provided” by the department. Bohach v. City of Reno, 932 F.Supp.1232 (D.Nev.1996). • Because an employee’s emails were stored on (and administered by) the employer’s network, the search of emails falls within the service provider exception. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3rd Cir. 2003). • Consent exception • Mere knowledge does not equal consent, but a clear policy, explained in writing, and a written employment agreement may suffice.

21. Information Disclosure • Service provider exception • In providing a reservations system for travel agents, American Airlines is a “service provider.” United States v. Mullins, 992 F.2d 1472 (9th Cir.1992). • A police department could retrieve text messages stored in its system because the text message system was a “service provided” by the department. Bohach v. City of Reno, 932 F.Supp.1232 (D.Nev.1996). • Because an employee’s emails were stored on (and administered by) the employer’s network, the search of emails falls within the service provider exception. Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3rd Cir. 2003). • Consent exception • Mere knowledge does not equal consent, but a clear policy, explained in writing, and a written employment agreement may suffice.

22. Legal Pitfalls to Avoid in Social Media • Make clear what’s acceptable in the office. • If you’re encouraging staffers to tweet, blog, etc. as part of their jobs, have specific guidelines. • FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising • Bloggers who are paid, directly or indirectly, to write about a product must disclose such sponsorship as the FTC considers such posts as paid endorsements. The companies involved also should monitor posts for compliance.

23. Legal Pitfalls to Avoid in Social Media • Understand privacy issues. • Make sure that employees know what’s confidential, and keep training them on what not to disclose. • Make sure that what your company puts out there is ready for public consumption. • Protect yourself from defamation or defamation claims. • Non-disparagement /confidentiality agreements

24. Legal Pitfalls to Avoid in Social Media • Elements to consider in drafting a well-crafted policy: • Cover all forms of online communication and conduct. • If employees are permitted to access social media at work, ensure that such access does not interfere with work. • Clearly express that, when using an employer computer system, an employee has no expectation of privacy. • Prohibit employees from revealing confidential or proprietary information. • Prohibit employees from revealing personal information of other employees. • Emphasize that online conduct must not violate the anti-discrimination policy or other codes of conduct.

25. Legal Pitfalls to Avoid in Social Media • Elements to consider in drafting a well-crafted policy: • Warn that the policy must be read in conjunction with any existing code of conduct, disciplinary scheme, or existing IT policy. • Prohibit the use of employer logos/uniforms/ brands. • Emphasize that employees must not imply, explicitly or implicitly, that they represent the company. • Include a catch-all provision prohibiting conduct that creates a conflict of interest or otherwise harms the employer's business interests. • Include a catch-all provision prohibiting any conduct that violates federal, state, or local law. • Direct employees to bring all questions related to the policy or permissible conduct to management. • Warn about possible disciplinary action if the policy is violated.

26. Evaluating Performance • Background Checks • 55% of respondents to a 2009 CareerBuilders survey said they used social media in the recruiting process, up from 22% in 2008 • 70% of U.S. human resources officers said they rejected job applicants for inappropriate material in online social networking profiles. • Employers can certainly verify résumé details or look on Facebook profiles. But if they find information about someone’s religion, marital status, age, disability or any other protected status and then use that to make an employment decision, then that’s a potential discriminatory action. • Employers can decline to hire or dismiss workers for posting photos or comments, but they can’t do so if the postings are related to union activities protected by labor laws. • 33 states have so-called “lifestyle discrimination” statutes that protect employees against adverse action based on lawful off-duty conduct like smoking, consumption of lawful products or political activity. • Charged with knowledge of posted information. • Fair Credit Reporting Act.

27. Employee Off-Duty Misconduct • Legal Issues that Arise with Social Networking Websites in the Workplace • Fired Over Fantasy Football: The Unfortunate Case of Cameron Pettigrew. • LinkedIn to a Lawsuit • In a suit filed in Minneapolis’ U.S. District Court, former employer alleged former employee wrongfully contacted former clients and co-workers—and more unusually, that her LinkedIn page could prove it. • As case law develops, courts could decide whether the online connections employees make at work belong to the employee or employer. Courts have a lot of discretion in deciding whether comparable customer lists and contacts are trade secrets and whether social-networking activity can be covered by competitive agreements. • Cleveland Judge Denies Newspaper’s Claim She Commented Online About Her Cases • British Airways suspends 15 for online comments • Britain’s largest union says British Airways PLC has suspended 15 cabin crew members because they allegedly posted inappropriate comments on their Facebook pages.

28. Employee Off-Duty Misconduct • Risks for unwary lawyers • Specialization • Testimonials • Advertising • 12/8/2010 Ohio Supreme Court Advisory Opinion: • A judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but the Opinion cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”

29. Employee Off-Duty Misconduct • Among the restrictions the opinion noted judges must observe: • To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site. • To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making. • To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone. • To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.

30. Employee Off-Duty Misconduct • Among the restrictions the opinion noted judges must observe: • To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court. • To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification. • To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site. • The opinion concluded: “To ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”

31. Questions, Comments, Discussion Thank you! Patrick O. Peters OSBA Certified Specialist in Labor & Employment Law Benesch, Friedlander, Coplan & Aronoff LLP 200 Public Square, Suite 2300 Cleveland, Ohio 44114-2378 (216) 363-4434 ppeters@beneschlaw.com As a reminder this presentation is being delivered to draw your attention to issues and is not to replace legal counseling. UNITED STATES TREASURY DEPARTMENT CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT, UNLESS EXPRESSLY STATED OTHERWISE, ANY U.S. FEDERAL TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (i) AVOIDING PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TRANSACTION OR MATTER ADDRESSED HEREIN.