EMPLOYER CYBER LIABILITY

EMPLOYER CYBER LIABILITY A Presentation by Joseph P. Paranac, Jr., Esq. LeClairRyan

EMPLOYER CYBER LIABILITY • “CYBER” = Electronic Communications • Email and Internet • Online Social Networks - Facebook - MySpace - Twitter • Blogs

WORKPLACE EMAIL AND INTERNET USE • PROS • Provides employers with virtually unlimited access to employees • Facilitates rapid communication between employees • CONS • Reduces productivity • Leads to hostile work environment claims • Opens door to additional claims against employers, including defamation, discrimination, retaliation and contract claims • Emails are discoverable in litigation and can provide hard evidence of employer liability

EMAIL AND INTERNET USE BY EMPLOYEES DURING WORKDAY • 86% of employees use office email for personal purposes • 51% of employees have shopped online

IMPROPER EMAIL AND INTERNET USE • 31.6% of employers have fired employees • 52.4% of employers have disciplined employees • At least 14,000,000 employees’ internet and email use is under continuous surveillance by employers

DISCIPLINE FOR IMPROPER EMAIL AND INTERNET USE • John Green, Executive Producer of ABC’s “Good Morning America,” was suspended for a month after disclosure of emails he sent criticizing then-President Bush and Madeline Albright, former Secretary of State. • Dean of Harvard Divinity School downloaded thousands of pornographic images onto school-owned computer. Shortly after porn was discovered, Dean met with Harvard President and “mutually agreed” he would resign.

IMPROPER EMAIL AND INTERNET USE: GROWING SOURCE OF LIABILITY FOR EMPLOYERS • Defamation Claims • Noonan v. Staples, 556 F.3d 20 (1st Cir. 2008) • A Staples salesman was fired for allegedly padding expense reports. A Staples Executive then sent a mass email to 1500 employees informing them that the employee had been fired for violating Staples’ travel and expense policy. The salesman then sued Staples for libel.

IMPROPER EMAIL AND INTERNET USE: GROWING SOURCE OF LIABILITY FOR EMPLOYERS • RETALIATION CLAIMS • Irvine v. Video Monitoring Services of America, 2000 U.S. Dist. Lexis 5461 (S.D.N.Y. 2000) • Emails were sent from one employee to another, referring to Irvine as a “wrinkled-up, hairy upper-lipped neighbor and co-worker,” a “grave lady” and stating that she “looks like Mickey Mantle just before the time he received his liver transplant.” When VMS learned of the emails, it seriously disciplined the employee who sent them. About 6 weeks later, Irvine was written up for violation of VMS’ computer policy. At about the same time, Irvine began sending VMS numerous complaints about noises, whistling and loud guffaws occurring near her workstation. Although VMS investigated and responded in writing to these complaints, Irvine claimed that VMS was trying to force her to quit. Subsequently, Irvine quit, allegedly on her doctor’s advice. • Irvine subsequently sued VMS, claiming that she was (1) harassed because of her age, (2) retaliated against by VMS when she complained, and (3) constructively discharged by VMS.

IMPROPER EMAIL AND INTERNET USE: GROWING SOURCE OF LIABILITY FOR EMPLOYERS • Sexual Harassment Claims • Miller v. Washington Workplace, Inc., 298 F. Supp. 2d 364 (E.D. Va. 2004) • Miller’s supervisor questioned her about her sex life and told her how he used the internet site “Match.com” to meet women. He showed her his personal ad and encouraged her to use Match.com “so that she could have sex like he did.” He also submitted Miller’s name to Match.com. When Miller asked for a copy of the company’s sexual harassment policy, she was fired. She then sued, alleging sexual harassment and retaliation.

IMPROPER EMAIL AND INTERNET USE: GROWING SOURCE OF LIABILITY FOR EMPLOYERS • CONTRACT CLAIMS • Tomer v. Hollister Associates, Inc., 20 Mass L. Rep. 487 (Mass. Superior Ct. 2006) • An executive’s employment contract provided that it could only be modified in writing. The court held that a twenty-six minute long email exchange between the executive and the employer, in which the executive agreed to a substantial pay out, was a “writing.” As a result, the executive’s breach-of-contract claim was dismissed.

ONLINE SOCIAL NETWORKING SITES • PROS • Enables applicants to communicate with company employees • Additional pre-hire investigation tool for employers • CONS • Reduces productivity • Reveals confidential employer information • Source of liability for employers, e.g., discrimination, defamation and retaliation claims

PITFALLS OF TWITTER USE • A 22 year-old college student who recently received a job offer from Cisco sent this “tweet”: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” • The student failed to click the “privacy” box, which would have caused the tweet to be send only to friends. • A Cisco employee saw the tweet, and Cisco later rescinded the employment offer. • Several NFL teams have banned players from “tweeting” during practices, team meetings or on the sidelines during games.

ELEMENTS OF A SUCCESSFUL EMAIL AND INTERNET USE POLICY • Employees should be trained on electronic communications equipment parameters and prohibitions. • All business systems and company-issued electronic communication equipment and data belong to the employer. • Systems and equipment must be used for appropriate and lawful business purposes only. • Employee use is subject to review/monitor by the employer and employees who use employer equipment have no expectation of privacy. • Use of systems and equipment for harassment, discrimination, or defamation is strictly prohibited. • Disclosure of employer confidential information is strictly prohibited. • Warn employees of the penalties or policy violations. • Obtain a signed acknowledgement of employee receipt of policy. • Include a procedure for reporting violations. • Enforce the policy!

ELEMENTS OF AN EFFECTIVE ONLINE SOCIAL NETWORK POLICY • Employees may not comment or use any confidential information about the employer or discuss internal matters. • Use of online social networks should be limited to non-working hours, unless the use is for legitimate business purposes. • Employees’ comments should not be discriminatory or harassing. Similarly, they should not be disparaging or defamatory to the employer’s business.

Thank You Joseph P. Paranac, Jr., Esq. LeClairRyan Two Penn Plaza East Newark, New Jersey 07105 (973)-491-3600Joseph.Paranac@leclairryan.com

EMPLOYER CYBER LIABILITY