Web 2.0: Hiring & Firing Web 2.0: Hiring & Firing Decisions - - PowerPoint PPT Presentation

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Web 2.0: Hiring & Firing Web 2.0: Hiring & Firing Decisions Based on Social Decisions Based on Social Media Postings Media Postings

September 29, 2010 September 29, 2010

Moderator: Julie Moderator: Julie Gromer Gromer Director of Director of Webinars Webinars, , LJN LJN’ ’s s Web Audio Conference Division Web Audio Conference Division jgromer@alm jgromer@alm.com .com

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Larry Larry Besnoff Besnoff, , Esquire Esquire

Larry Besnoff is Co-Chair of the Labor Relations and Employment Law Department at Obermayer Rebmann Maxwell & Hippel LLP. He clerked in the United States District Court for the Eastern District of Pennsylvania and then served as a Senior Trial Attorney at the U.S. Equal Employment Opportunity Commission’s Philadelphia District

• Office. Mr. Besnoff has litigated cases under Title VII, the

EPA, the ADA, the FMLA and the ADEA, including handling matters involving public access, assistive listening devices in movie theaters, changes to building structures, and removing allergens such as smoke and fumes in the workplace. He has defended EEO cases filed with various state and local agencies with unique issues. One case involved a Wiccan witch who wanted the right to proselytize youth. Another case involved a person with a serious stutter who wanted to be a 911 dispatcher. Mr. Besnoff received his B.S. in Humanities and Social Sciences from Drexel University and his J.D. from the Temple University School of Law, where he served as President of the Evening Division. He has lectured extensively on EEO topics, most recently on the increased use of WEB 2.0 by both employees and employers.

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Skeletons in Cyberspace Skeletons in Cyberspace

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  Maryland company hires Ohio

Maryland company hires Ohio applicant from Monster.com. applicant from Monster.com.

  Months later, Corman re-posts his

Months later, Corman re-posts his resume on Monster.com and resume on Monster.com and wants to work only in Ohio. wants to work only in Ohio.

  Corman fired for

Corman fired for “ “cause cause” ”. .

Corman Corman v. UCG

• v. UCG

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  Corman argued that posting a

Corman argued that posting a resume on-line was not resume on-line was not “ “cause cause” ” since it violated Maryland public since it violated Maryland public policy and hindered employment policy and hindered employment mobility. mobility.

Corman v. UCG Corman v. UCG

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  Corman argued that he was not

Corman argued that he was not given advance notice in contract given advance notice in contract that posting a resume was that posting a resume was grounds for grounds for “ “cause cause” ”. .

Corman Corman v. UCG

• v. UCG

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  Use Facebook as a shield.

Use Facebook as a shield.

  Loss of enjoyment of life.

Loss of enjoyment of life.

  Plaintiff talks about his fishing

Plaintiff talks about his fishing expedition. expedition.

  Admissible as evidence.

Admissible as evidence.

LeDuc LeDuc v. v. Roman Roman

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  Phila

Phila Bar Association advisory Bar Association advisory

• pinion.
• pinion.

  Not ethical to secretly send a third

Not ethical to secretly send a third party to party to “ “friend friend” ” a Facebook user a Facebook user to obtain information to impeach to obtain information to impeach testimony. testimony.

Pretext Pretext

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  Stengart

Stengart v. Loving Care Agency, Inc.,

• v. Loving Care Agency, Inc., 408

408 N.J. Super. 54 (N.J. App. Div.), affirmed N.J. Super. 54 (N.J. App. Div.), affirmed 2010 N.J. LEXIS 241 (2010) 2010 N.J. LEXIS 241 (2010)

  Handbook policy clearly states e-mail

Handbook policy clearly states e-mail messages company property and not messages company property and not personal or private to employee personal or private to employee

  Plaintiff assisted in creating the policy

Plaintiff assisted in creating the policy

  Occasional personal use allowed

Occasional personal use allowed Attorney Client Exception Attorney Client Exception

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  Stengart

Stengart sent several e-mails to her lawyer sent several e-mails to her lawyer

  From company-provided laptop

From company-provided laptop

  Over Company

Over Company’ ’s internet s internet

  Messages on personal Yahoo e-mail

Messages on personal Yahoo e-mail account account

  Yahoo password not stored on company

Yahoo password not stored on company laptop laptop Attorney Client Exception Attorney Client Exception

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  Stengart

Stengart not know that Company stored a not know that Company stored a copy of each web page in a cache folder copy of each web page in a cache folder

  Stengart

Stengart’ ’s s e-mails actually stored on e-mails actually stored on company company’ ’s server s server Attorney Client Exception Attorney Client Exception

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  Resignation and lawsuit under NJLAD

Resignation and lawsuit under NJLAD

  Employer discovers e-mails to and from

Employer discovers e-mails to and from employee attorney about suing employer employee attorney about suing employer

  Employer plans to use the

Employer plans to use the communications in defense strategy communications in defense strategy

  Trial court found employee waived

Trial court found employee waived attorney client privilege by using company attorney client privilege by using company equipment, time and resources equipment, time and resources Attorney Client Exception Attorney Client Exception

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  App. Div. reversed

• App. Div. reversed

  Violation of NJ Rule Professional Conduct

Violation of NJ Rule Professional Conduct 4.4(b) 4.4(b)

  Should have ceased reading e-mail upon

Should have ceased reading e-mail upon discovery discovery Attorney Client Exception Attorney Client Exception

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  NJ Supreme Court agrees

NJ Supreme Court agrees “ “Stengart Stengart could could reasonably expect that e-mail reasonably expect that e-mail communications with her lawyer through communications with her lawyer through her personal, password-protected, web- her personal, password-protected, web- based e-mail account would remain based e-mail account would remain private, and that sending and receiving private, and that sending and receiving them using a company laptop did not them using a company laptop did not eliminate the attorney-client privilege eliminate the attorney-client privilege… …. .” ” Attorney Client Exception Attorney Client Exception

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  If employers allow reasonable personal

If employers allow reasonable personal use of company systems, absent explicit use of company systems, absent explicit directions to the contrary, employees have directions to the contrary, employees have a reasonable expectation of privacy to the a reasonable expectation of privacy to the content and communications of personal, content and communications of personal, password-protected sites password-protected sites What Can We Learn? What Can We Learn?

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  The same rule would also apply to social

The same rule would also apply to social networking sites with password-protected networking sites with password-protected entry entry

  Allowing the computer to

Allowing the computer to “ “remember me remember me” ” for logins and passwords on company for logins and passwords on company equipment may forfeit the reasonable equipment may forfeit the reasonable expectation of privacy expectation of privacy

  If attorney/client can

If attorney/client can’ ’t be waived, what t be waived, what’ ’s s next? next? What Can We Learn? What Can We Learn?

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  Court notes that employer allowed

Court notes that employer allowed

• ccasional personal use
• ccasional personal use

  Does this negate all the other caveats?

Does this negate all the other caveats?

  What if employee violates company policy

What if employee violates company policy and uses company computer to access his and uses company computer to access his personal bank account statement? personal bank account statement? What Can We Learn? What Can We Learn?

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  “

“Her Wretchedness Her Wretchedness” ”. .

  “

“The most insane person you The most insane person you have ever witnessed outside of have ever witnessed outside of ‘ ‘Dateline NBC Dateline NBC’” ’”. .

  On Armstrong

On Armstrong’ ’s own time, own s own time, own computer, outside of work. computer, outside of work.

Dooced Dooced

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  Blog about sex life.

Blog about sex life.

  Detailed descriptions of work life.

Detailed descriptions of work life.

  Employer

Employer’ ’s life broadcast s life broadcast – – betrayal of confidence. betrayal of confidence.

  More time blogging than watching

More time blogging than watching kids? kids?

Brooklyn Nanny Brooklyn Nanny

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  “

“True confession but I True confession but I’ ’m in one of m in one of those towns where I scratch my those towns where I scratch my head and say, head and say, ‘ ‘I would die if I had I would die if I had to live here. to live here.’” ’”

  FedEx took exception.

FedEx took exception.

Twitter Twitter

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  The site urged invitees to

The site urged invitees to “ “let the let the shit-talking begin shit-talking begin” ”. .

  Called manager offensive names.

Called manager offensive names.

Pietrylo Pietrylo v.

• v. Hillstone

Hillstone

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  Stored Communications Act, 18

Stored Communications Act, 18 USC Sec. 2701 USC Sec. 2701 – – SJ. SJ.

  Free Speech claim

Free Speech claim – – dismissed dismissed

• n SJ.
• n SJ.

  Invasion of Privacy

Invasion of Privacy – – listed for listed for 3-17-09 trial. 3-17-09 trial.

Pietrylo Pietrylo v.

• v. Hillstone

Hillstone

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  Was login given freely?

Was login given freely?

  Is this, as employer claims,

Is this, as employer claims, hostile work environment for hostile work environment for ees ees disparaged? disparaged?

Pietrylo Pietrylo v.

• v. Hillstone

Hillstone

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  Federal jury violated Federal Stored

Federal jury violated Federal Stored Communications Act and NJ Communications Act and NJ Wiretapping and Electronics Wiretapping and Electronics Surveillance Control Act Surveillance Control Act

  $3,400 back pay

$3,400 back pay

  $13,600 punitive damages

$13,600 punitive damages

Pietrylo Pietrylo v.

• v. Hillstone

Hillstone

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  Social skills - # of friends?

Social skills - # of friends?

  Reading/writing skills

Reading/writing skills – – grammar? grammar?

  Interests

Interests – – books, activities? books, activities?

  Wall

Wall – – what do friends say? what do friends say?

Facebook IQ Facebook IQ

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  23 page notice with 78 violations.

23 page notice with 78 violations.

  Forged receipts; slept in car and

Forged receipts; slept in car and charged hotel costs; charges in charged hotel costs; charges in TN, but worked in IN. TN, but worked in IN.

  Mullins admits most allegations.

Mullins admits most allegations.

Mullins v. Mullins v.

• Dept. of Commerce
• Dept. of Commerce

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  Deciding Official

Deciding Official “ “Google Google searched searched” ” and found prior and found prior removal from federal service at removal from federal service at Air Force and the Smithsonian Air Force and the Smithsonian Institution. Institution.

Mullins v. Mullins v.

• Dept. of Commerce
• Dept. of Commerce

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  H - Ex-parte communications are

H - Ex-parte communications are procedural defects only when procedural defects only when they cause prejudice that they cause prejudice that undermines due process undermines due process guarantees. guarantees.

Mullins v. Mullins v.

• Dept. of Commerce
• Dept. of Commerce

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  H - Mullins had already disclosed

H - Mullins had already disclosed the negative information to the the negative information to the Deciding Official and it did not Deciding Official and it did not affect the decision. affect the decision.

Mullins v. Mullins v.

• Dept. of Commerce
• Dept. of Commerce

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  Congress shall make no

Congress shall make no law law… …prohibiting the free exercise prohibiting the free exercise thereof; or abridging the freedom thereof; or abridging the freedom

• f speech, or of the press;
• f speech, or of the press;…

…. .

First Amendment First Amendment

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  ER - Bias crime, violated

ER - Bias crime, violated workplace discrimination and was workplace discrimination and was “ “conduct unbecoming a public conduct unbecoming a public employee employee” ”. .

  EE - Not on work time or

EE - Not on work time or government equipment, right to government equipment, right to free speech. free speech.

First Amendment First Amendment

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  EE

EE – – Wrongfully denied a Wrongfully denied a Bachelor of Science degree, Bachelor of Science degree, Education degree and teaching Education degree and teaching certificate. certificate.

  ER

ER – – Granted a Bachelor of Arts Granted a Bachelor of Arts degree. degree.

Snyder v. Millersville University Snyder v. Millersville University

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  Works as a nanny since can

Works as a nanny since can’ ’t get t get teaching position. teaching position.

  Jury verdict for ??

Jury verdict for ??

Snyder v. Millersville University Snyder v. Millersville University

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  Harm to ER

Harm to ER’ ’s reputation s reputation

  EE unable to work or appear at

EE unable to work or appear at work work

  Co-workers reluctant to work with

Co-workers reluctant to work with EE EE

  Criminal acts

Criminal acts

  Conflicts with ER

Conflicts with ER’ ’s interests s interests

Off-Duty Conduct Off-Duty Conduct

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  ER has legal obligation to

ER has legal obligation to investigate EE investigate EE’ ’s activities s activities because it knew or had reason to because it knew or had reason to know that the know that the EE was using the EE was using the workplace computer to access workplace computer to access child pornography. child pornography.

Doe v. Doe v. XYC XYC

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  ER required to report the EE

ER required to report the EE’ ’s s activities to the proper authorities activities to the proper authorities and to take effective internal and to take effective internal action to stop EE. action to stop EE.

Doe v. Doe v. XYC XYC

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  Public Policy

Public Policy

  Hinder Employment Mobility

Hinder Employment Mobility

  Breach of Contract

Breach of Contract

  Stored Communications Act

Stored Communications Act

  First Amendment

First Amendment – – Free Speech Free Speech

  Invasion of Privacy

Invasion of Privacy

Defenses To Being Fired Defenses To Being Fired

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  Due Process Violation

Due Process Violation – – Use of Use of Information Not in Evidence Information Not in Evidence

  Title VII, ADA, FMLA, Retaliation

Title VII, ADA, FMLA, Retaliation

  Negligent Retention

Negligent Retention

  NJ Wiretap Act

NJ Wiretap Act

Defenses To Being Fired Defenses To Being Fired

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  Establish and uniformly enforce

Establish and uniformly enforce written WEB 2.0 handbook policy written WEB 2.0 handbook policy covering ER covering ER’ ’s electronic systems, s electronic systems, internet searches, use of social internet searches, use of social networking sites. networking sites.

 Personal responsibility on Company

Personal responsibility on Company equipment and when home. equipment and when home.

Conclusions Conclusions

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 Identify yourself by name and

Identify yourself by name and affiliation. affiliation.

 Credit appropriately.

Credit appropriately.

 Be respectful, avoid personal

Be respectful, avoid personal attacks. attacks.

Conclusions Conclusions

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 Get approval before commenting on

Get approval before commenting on business. business.

 Don

Don’ ’t give recommendations on line t give recommendations on line to co-workers. to co-workers.

 Only

Only “ “friend friend” ” people you know and people you know and trust. trust.

Conclusions Conclusions

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  Save all data discovered.

Save all data discovered.

  When will the information be used?

When will the information be used?

  Applicants sign waiver authorizing the

Applicants sign waiver authorizing the search, or at least advise that search search, or at least advise that search will be made. will be made.

Conclusions Conclusions

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  Internal procedure - Ignore the

Internal procedure - Ignore the small stuff. small stuff.

  Use third party and shift blame

Use third party and shift blame and liability. and liability.

Conclusions Conclusions

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  Only conduct web search after

Only conduct web search after conditional offer has been made. conditional offer has been made.

  Don

Don’ ’t t “ “pretext pretext” ” to gain access to to gain access to private sites. private sites.

  Give applicant chance to explain.

Give applicant chance to explain.

Conclusions Conclusions

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Q & A Q & A

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