Cross Gunter Witherspoon & Galchus, P.C. 500 President Clinton Ave., Suite 200

1. AASHTO HUMAN RESOURCES SUBCOMMITTEE MEETING LITTLE ROCK, ARKANSAS May 8, 2012 SEX, DRUGS, AND ROCK & ROLL Carolyn B. Witherspoon Cross Gunter Witherspoon & Galchus, P.C. 500 President Clinton Ave., Suite 200 Little Rock, AR 72201 cspoon@cgwg.com (501) 371-9999 / Fax: (501) 371-0035

2. Sexting in the Workplace

3. Sexting • What is sexting? • Sexting is the act of sending sexually explicit messages or photographs through text messages via mobile phones.

4. Sexting • A 2009 survey revealed approximately 4.1 billion texts are transmitted in the U.S. every day. • Since then, this number is suspected to have risen to over 5 billion texts per day. • Three-fourths of corporate employees today use smart phones.

5. Sexting and Cell Phone Privacy • Whose phone is it, anyway? • When public employers provide employees with cell phones and similar devices, employees are left to wonder whose phone it really is. • Generally, the more the employee pays for the phone, the more likely a court is to rule that the phone is in that employee’s control. • Similarly, the more exclusive the employee’s access is (particularly to the employer), the more likely it is to be considered in the employee’s possession, even if the employer is paying a portion of the bill.

6. Privacy Issues • O’Connor v. Ortega (1987) • Dr. Ortega had been the head of the psychiatric residency program at Napa State Hospital, a mental hospital, for 17 years. He bought a new Apple computer to use at work. He paid for half of the cost, and the other half had been donated by some of the residents • A month later, Ortega asked Dr. Dennis O'Connor, his boss, to sign some thank-you letters to the residents who had made contributions.

7. Privacy Issues • O’Connor v. Ortega (1987) • Two months later, Ortega suspended a resident for missing a rotation. The resident claimed Ortega was retaliating against him for not having contributed to the computer’s purchase. • An investigation was opened, and Ortega’s office was searched thoroughly, with personal belongings being found and kept. • Ortega was put on administrative leave and later fired. He sued. The district court found that the search of his office was reasonable, because it was “inventoried,” not searched.

8. Privacy Issues • O’Connor v. Ortega (1987) • The appellate court reversed, stating that “the entry into the office seems to have been for no other purpose than to secure evidence for use in the ongoing investigation of Ortega.“ • The Supreme Court reversed the appellate court’s decision. The court stated: "Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer."

9. Privacy Issues • O’Connor v. Ortega (1987) • The U.S. Supreme Court based employee privacy rights on the “operational realities of the workplace.” The Court required a balancing of the employee's “legitimate expectation of privacy against the government's need for supervision, control, and the efficient operation of the workplace.” • The Court did not, however, focus on electronic sources, but instead mentioned the employee's office, desk, or file cabinets.

10. Privacy Issues • O’Connor v. Ortega (1987) • This opinion vested a large amount of discretion in government employers, where written policies dictated standards of privacy. • A government employer’s warrantless search is reasonable if it is “justified at its inception” and if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of” the circumstances

11. Searches by the Employer • From Ortega to Quon • As mentioned, the Ortega Court did not, however, focus on electronic sources, but instead mentioned the employee's office, desk, or file cabinets. • City of Ontario v. Quon (2011) • Jeff Quon was a police sergeant and member of the SWAT Team for the Ontario Police Department. The city issued pagers to SWAT team members for work usage. • The computer policy that stated that the city had the right to “monitor and log all network activity… with or without notice” was applied to the pagers.

12. Searches by the Employer • City of Ontario v. Quon • Quon’s supervisor told him he did not plan to audit employees’ text messages, so long as they paid personally for any overage charges for personal use, which Quon did. • When reviewing the usage amount, Quon’s supervisor saw that Quon had been sending sexually explicit messages to his wife and another officer. • The Supreme Court considered whether the city’s review of Quon’s text message transcripts was an unreasonable search violating his expectation of privacy.

13. Searches by the Employer • City of Ontario v. Quon • The Supreme Court stated that the Fourth Amendment applies when the government acts in its capacity as an employer, which protects the “privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government.” • The Court ruled that the classic two-part test to determine whether the government, as an employer, has conducted an unlawful search will still be used.

14. Searches by the Employer • City of Ontario v. Quon • First, the Court considers the “operational realities” of the workplace to determine whether an employee’s Fourth Amendment rights are implicated. • Second, where the employee has a legitimate privacy interest, an employer’s intrusion on that expectation for “non-investigatory, work-related purposes, as well as for investigations of work-related conduct,” will be judged by a reasonableness standard, in light of all the circumstances.

15. Searches by the Employer • City of Ontario v. Quon • The Court ruled that, because the computer policy stated clearly that audits may occur, the search was not unreasonable. • Because the search was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

16. Today’sStandard • What government employers should do: • 1) Post and/or include in handbook a clear policy regarding all technology usage. • 2) Include in the policy that all technology issued by the government/employer is subject to review/audits, including all content therein. This includes phones, computers, PDA’s, etc. • 3) Make it clear that the policy applies to all devices for which the employer pays, even if the employee pays for part of the usage.

17. Don’t Be a Nutt • Public employee records may be subject to FOIA requests. • Cell phone records of Houston Nutt, the former University of Arkanas head football coach, were requested from a fan, who questioned some of Nutt’s recent communications with boosters. • Transcripts of text messages were viewed and released to the public.

18. 7 Romance

19. WORKPLACE ROMANCES • Why People Engage in Workplace Romances • Long hours people spend at work. • Work is a non-threatening environment where people meet potential dating partners and learn more about them.

20. WORKPLACE ROMANCES • Why People Engage in Workplace Romances • When the romance flourishes, those in the relationship are “happy.” • When partners work for the same employer, each has someone to talk to about their problems at work because the other understands and can help resolve issues.

21. WORKPLACE ROMANCES • Almost Everyone is Doing It!! • 59% of employees have participated in an office romance • 65% of employees reported that the shaky economy has no effect on their willingness to take romantic risks at work • 1/3 of those who have had office romances have engaged in workplace trysts. Source: 2011 Office Romance Survey by Vault, Inc.

22. WORKPLACE ROMANCES • Dangers of Workplace Romance

23. WORKPLACE ROMANCES • Dangers of Workplace Romance • Loss of attention to work. • Jealousy among co-workers. • Potential for antagonism between the individuals if a break up occurs.

24. WORKPLACE ROMANCES • Legal Challenges • Sexual Harassment (Quid Pro Quo) Claims • Retaliation Claims • Hostile Work Environment Claims • Invasion of Privacy and Wrongful Termination Claims • Intentional Infliction of Emotional Distress • Assault and Battery

25. WORKPLACE ROMANCES • Sexual Harassment (Quid Pro Quo) Claims • After a supervisor ends a relationship with a subordinate, the subordinate will sometimes assert an after-the-fact sexual harassment claim. • Usually, the subordinate contends he or she was coerced into the relationship and employment or various prerequisites of employment were conditioned upon the exchange of sexual favors.

26. WORKPLACE ROMANCES • Retaliation Claims • When a subordinate ends a relationship with a supervisor, the supervisor may be accused of retaliation if the subordinate suffers any adverse employment action.

27. WORKPLACE ROMANCES • Hostile Work Environment • Typically occurs where a combination of sexual comments, jokes, etc. take place between the couple prior to the relationship dissolving. • Other employees who witness the office romance may also feel slighted and raise such a claim – must be widespread favoritism.

28. WORKPLACE ROMANCES • Hostile Work Environment • Faragher v. City of Boca Raton, 524 U.S. 775 (1998) • The Supreme Court held that in order to be actionable under Title VII, the sexual harassment must be so severe and pervasive that it alters the conditions of the victim’s employment and creates an abusive working environment.

29. WORKPLACE ROMANCES • Faragher v. City of Boca Raton • The Court noted that a sexually objectionable environment must be: • Both objectively and subjectively offensive, • One that a reasonable person would find hostile or abusive, and • One that the victim in fact did perceive to be so.

30. WORKPLACE ROMANCES • Faragher v. City of Boca Raton • Courts are directed to determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including: • The frequency of the discriminatory conduct; • The severity of the discriminatory conduct; • Whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and • Whether the conduct unreasonably interferes with an employee's work performance.

31. WORKPLACE ROMANCES • Faragher v. City of Boca Raton • An employer may be indirectly liable for sexual harassment by a superior if: • (1) the harassment occurs within the scope of the superior’s employment; • (2) the employer assigns performance of a non-delegable duty to a supervisor and an employee is injured because of the supervisor’s failure to carry out that duty; or • (3) there is an agency relationship which aids the supervisor’s ability or opportunity to harass.

32. WORKPLACE ROMANCES • Invasion of Privacy & Wrongful Termination Claims • When employers penalize employees for dating, the affected employees may be able to assert an invasion of privacy claim.

33. WORKPLACE ROMANCES • Intentional Infliction of Emotional Distress (IIED) • Elements • (1) defendant acted intentionally or recklessly; • (2) defendant’s conduct was extreme and outrageous; • (3) causation • (4) resulting in severe emotional distress • A claim for IIED can be brought against an individual supervisor.

34. WORKPLACE ROMANCES • IIED - Hess v. Treece, 286 Ark. 434 (1985) • Appellee Mark Treece had been an employee of the Little Rock Police Department since 1973. In late 1980 he met appellant Bob Hess when he dropped off Jayma Stephens, Hess' girlfriend, at Hess' house and some unfriendly words were exchanged between the parties. • Treece testified that in April 1981 he saw Hess following him. In Spring 1982, Treece was informed by one of his superior officers, Capt. Timothy Daley, that Hess had called the Police Department to complain about Treece being at his apartment when he was supposed to be at work.

35. WORKPLACE ROMANCES • Hess v. Treece • During this conversation, according to Daley, Hess stated that he would have Treece's job at any cost, and that he was conducting surveillance of Treece and other officers. An internal police investigation of this complaint found Treece innocent of the charges. • In April 1982 Treece talked to Hess' bookkeeper. She told Treece that Hess had asked her to watch and report on Treece's movements.

36. WORKPLACE ROMANCES • Hess v. Treece • The court stated, “The fact that appellee happened to be a city employee should not deprive him of protection from outrageous conduct, nor should the fact that appellant happened to be a City Director relieve him of responsibility for his actions.” • The Arkansas Supreme Court upheld the lower court’s ruling in favor of Treece, finding substantial evidence to support the verdict of outrageous conduct and also to support the award of damages, both compensatory and punitive.

37. WORKPLACE ROMANCES • Assault & Battery • Elements of Assault: • (1) an act intended to cause apprehension of harmful or offensive contact • (2) that does cause apprehension of such contact in the victim • Elements of Battery: • (1) an intent to cause harmful or offensive contact • (2) and harmful or offensive contact to the plaintiff • Claims for assault & battery can be brought against an individual supervisor.

38. WORKPLACE ROMANCES • Employer approaches to protect against the legal impact of workplace relationships: • “Love Contracts” • No-Fraternization Policies

39. WORKPLACE ROMANCES • No-Fraternization Policies • What does it mean to fraternize? • When two people have a relationship within the office.

40. WORKPLACE ROMANCES • No-Fraternization Policies • First Type • Prohibits supervisory employees from dating non-management employees. • Rationale – the disparity of power between the two could be viewed as creating a situation where the employee was under duress to enter into or stay in the relationship.

41. WORKPLACE ROMANCES • No-Fraternization Policies • Second type –Prohibits supervisors from dating any employees, but allows non-supervisory employees to date each other. • Third type –Prohibits any dating in the workplace (strict policy).

42. WORKPLACEROMANCES No-Fraternization Policies vs. Employee Privacy

43. WORKPLACEROMANCES What kind of policy is right for you?

44. WORKPLACEROMANCES • Advantages of NOT having a No-Fraternization Policy • Allows management flexibility in establishing corporate culture and letting it change as the firm may experience a fluctuation of employees within the firm. • Company can still address harassment issues through its anti-harassment policy.

45. WORKPLACEROMANCES • Disadvantages of NOT having a no-fraternization policy • Employees may not be on notice as to what kinds of behavior are prohibited, thus providing an opening for an invasion of privacy argument. • Employer does not have the strong evidence that the consistent enforcement of a no-fraternization policy, which goes over and above a policy merely prohibiting harassment and discrimination, provides in court.

46. Social Networking

47. Social Networking • Types of Social Networking: • Forums • Blogs • Micro-blogging (e.g. Twitter) • Photo Sharing • Video Sharing • Professional (e.g. LinkedIn) • Purely Social (e.g. Facebook) • Bookmarking

48. Social Networking • Trends • Time Americans spent surfing Facebook: • August 2010 - 41.1 million minutes • August 2009 - 20.8 million minutes • Largest growing demographic on Facebook: • Ages 35 and older http://www.allfacebook.com/facebook-surpasses-google-in-time-spent-on-site-domestically-2010-09

49. Big Four of Social Media http://www.getbusymedia.com/the-social-media-download-the-big-four/

50. Social Media – Why People Use It • Keeping in touch • Networking • Sharing and acquiring information • Meeting new people • Winning prizes