Social Media Policies for Employers: A Few Notes on the NLRA

Yesterday’s post discussed recent action by the National Labor Relations Board, pointing out that your employee’s Facebook posts or other online communications may be protected under the National Labor Relations Act. Many private employers don’t realize Section 7 of the NLRA protects the rights of all employees, regardless of union status, to engage in protected “concerted activities,” such as discussing wages, work conditions, and other terms of employment. In light of yesterday’s discussion, when reviewing or updating social media policies, employers may want to think about:

• An employer may violate the NLRA simply by maintaining certain work rules or policies, even if they’re not enforced, if the rule would reasonably tend to chill employees in exercising their Section 7 rights.
• Obviously, an employer violates the law if a workplace rule explicitly restricts Section 7 protected activities (i.e., "You can't talk about your wages."). But a rule that doesn't expressly restrict protected activity may also be illegal if (1) employees would reasonably construe the language to prohibit Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights. 
• Thus, an employer may violate the NLRA by implementing overly broad policies. For example, it may be unlawful to implement a policy broadly prohibiting online communications that disparage the employer or supervisors or prohibiting any depiction of the company without employer permission.
• Of course, prohibiting conduct that’s clearly not protected under the NLRA isn’t a violation – an employer may properly restrict communications such as (non-exhaustive list of examples cited by the NLRB): (1) conversations about the employer’s proprietary information, (2) explicit sexual references, (3) criticism of race or religion, (4) obscenity, profanity, or egregiously inappropriate language, (5) references to illegal drugs, and (6) online sharing of confidential intellectual property.
• Sometimes, an employer’s policy provision might be overly broad standing alone, but the surrounding context may give it a more limited – and legal – meaning. For example, prohibiting employees from having “negative conversations” about managers may be overly broad if it contained no further clarification or examples. However, an employer probably can prohibit employees from making “statements that are detrimental to the company” when the prohibition is listed alongside examples of egregious misconduct (such as “sexual or racial harassment” and “sabotage”) that clearly aren’t protected under Section 7. The inquiry remains: when read in context, would employees reasonably construe the rule as restricting Section 7 activity?
• Although the inclusion of limiting or clarifying language may protect an employer’s otherwise overbroad policy, it’s probably wiser to just more carefully articulate the prohibited activity itself. (If you can’t say “don’t do stuff that annoys us,” but you may say, “don’t do stuff that annoys us, like sexually harassing other employees or stealing our trade secrets,” why not just eliminate the risk by saying “don’t sexually harass other employees or steal our trade secrets”?!)*
• An employer may want to simply include language in a social media policy expressly clarifying the policy doesn't restrict protected communications.
• Consider how you might re-phrase policy language to capture what your company really wants to restrict. For example, “defamation” is generally unlawful, but “disparagement” is broader and might include some online complaining that’s actually protected activity. Perhaps it would be safer for an employer to prohibit “defamatory comments about company supervisors” rather than “disparaging comments about company supervisors.”
• Remember, an employee’s online communications may be protected under other laws, too!

* Um, I hope this doesn’t really need a disclaimer, but I’m not literally suggesting you phrase your policies like this.

NLRA May Protect Your Employees' Facebook Rants (Regardless of Union Status!)

The National Labor Relations Board's Hartford regional office recently accused an employer of engaging in unfair labor practices when the company fired an employee who complained about her supervisor on her personal Facebook page. The NLRB regional director (part of the NLRB's Office of General Counsel) filed the complaint against American Medical Response of Connecticut on October 27, 2010, and issued a press release last month announcing that an NLRB investigation concluded that the employee’s Facebook posts were protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions. Specifically, it took issue with the provision “that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.” The press release explained these kinds of provisions interfere with employees’ rights to engage in protected concerted activity. I found a copy of the complaint posted to JDSupra by Adrian Lurssen, which included the actual text of the two alleged “unlawful provisions,” which state:

• Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo or an ambulance, unless the employee receives written approval from the EMSC Vice President of Corporate Communications in advance of the posting;

• Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.

This has caused quite a ruckus among human resources and legal professionals, because – remember – the National Labor Relations Act protects union and non-union employees against discrimination based on union-related activity or group action (“protected concerted activity” such as discussing the terms and conditions of their employment). Although this complaint has received extensive coverage already, I thought it may be worthwhile to join in the discussion to point out that this NLRB complaint doesn’t sound the death knell on employer social media policies or internet policies. The NLRB isn’t saying blogging or internet policies violate the law, it just seems to be saying this employer’s internet policy was too broad. That being said, I think the complaint still might possibly inject a little confusion into the employer’s (and lawyer’s) evaluation of appropriate social media policy language.

Last December, the NLRB's Office of the General Counsel issued an Advice Memorandum in Sears Holdings (Roebucks), No. 18-CA-19081, which examined another employer’s social media policy and found the policy did not violate the NLRA. The challenged provision within the policy in that case prohibited “[d]isparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.”

On one hand, the specifically challenged disparagement provisions in the two cases are relatively similar. Consequently, the approval of the policy at issue in December 2009 seems inconsistent with the October 27, 2010 complaint – at least at first blush. Both seem to be broadly worded to restrict what could be considered protected under the NLRA.  But it seemed important to the December 2009 conclusion that the challenged provision within the Sears policy was only one of multiple other, relatively specific, prohibited social media activities such as prohibiting disclosure of confidential or proprietary company information, reference to illegal drugs, obscenity or profanity, and so on. The Sears policy also included prefatory language saying “…[t]he intent of this Policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates.”

The Sears Advice Memo pointed out that, standing alone, “the ban on “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . .” could chill the exercise of protected concerted activity. But read in light of its longer list of prohibited activity that clearly fell outside NLRA protection, employee wouldn't reasonably construe the Sears social media policy to prohibit protected concerted activities. In contrast, the American Medical Response provisions at issue appear to constitute that employer’s entire “Blogging and Internet Posting Policy” (based on the way it reads in the complaint, anyway). The lack of the more limiting contextual language like that included in the Sears social media policy seems to distinguish it and suggests that may make the American Medical Response internet policy too broad. The American Medical Response complaint also indicates the employer fired the employee after denying her requested union representation. Sounds like that may be a game-changer, too.

American Medical Response's answer to the complaint was due last month, and on January 25, 2011, there will be a hearing before an NLRB administrative law judge on the American Medical Response complaint.  Keep your eye out for that.

Two important reminders: (1) the NLRB agency's complaint isn’t a final determination or decision -- it's just a charging document; there hasn’t even been a hearing yet, and (2) the Advice Memorandum isn’t binding, either. Although it’s fun (well, fun for nerdy lawyers like me) to think about the various implications these kinds of filings could suggest, keep those two caveats in mind!  Look for tomorrow's post that will expand on this one a bit. 

Thanks to Anders for pointing me to the NLRB press release last month!

Final GINA Regulations (Finally!) Published: Social Media & Employer Acquisition of Genetic Info

The Equal Employment Opportunity Commission today (finally!) issued final regulations implementing Title II (the employment provisions) of the Genetic Information Non-Discrimination Act of 2008 (GINA). As I mentioned in an earlier post, Title II took effect on November 21, 2009, the Commission published proposed regulations last year, but the final regulations were delayed. I also pointed out that employers would have to wait for the final regulations for the EEOC’s treatment of information obtained via social networking sites and employees’ social media profiles. 

The Issue: Acquiring Employee Genetic Information Via Social Media = Violation?
Recall that GINA makes the mere acquisition of genetic information illegal, and the Act broadly defines “genetic information” to include even medical conditions of family members. This left employers wondering if they’d be facing a GINA violation if, for example, a supervisor found an employee’s status update saying he was raising money for multiple sclerosis in honor of his father who is suffering for it. Employers wondered if just receiving that information might be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides specific exceptions. The final regulations now clarify the scope of those exceptions regarding acquisition of genetic information through social networking or social media sites such as Facebook.

No Specific Intent Necessary for Violation
First, it seems worth mentioning that the EEOC pointed out that an employer may violate GINA without a specific intent to acquire genetic information, so the Commission changed the language of the regulations:  the Commission removed reference to “deliberate acquisition” of genetic information, and now indicates Title II of GINA restricts “requesting, requiring, or purchasing” genetic information.

“Inadvertent Acquisition” Exception
Turning to the exemptions, specifically, the Commission pointed out that the “inadvertent acquisition exception” applies not just to interactions in the workplace, but also to interactions that take place online. The regs provide a specific situation in which acquisition of genetic information would not result in a violation under the “inadvertent acquisition” exception:  when a manager or supervisor “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

In other words, drawing from the hypothetical I posed in my earlier post, an employer would not violate GINA if an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in that supervisor’s Facebook news feed, unexpectedly disclosing genetic information. The inadvertent acquisition exception protects the employer from liability for this acquisition of genetic information.

“Commercially & Publicly Available” Exception
With respect to the exception for genetic information obtained via commercially and publicly available information, the regulations provide that media sources with “limited access” will not be considered commercially and publicly available. That is, this exception doesn’t apply to genetic information obtained through sources such as social networking sites (such as Facebook) that require permission to access from a specific individual or where access is conditioned on membership in a particular group (unless the employer can show access is routinely granted to all who request it). For example, if an employee’s Facebook profile contains genetic information, and that employee has taken advantage of Facebook privacy restrictions so that information is only accessible by the employee’s Facebook friends, the information isn’t considered commercially and publicly available. The Commission was careful to point out the determining factor is whether access requires permission of an individual or is limited to a particular group, and not how a particular web site might be “categorized” -- such as social media, personal web site, blog, or so on. (i.e., Although the converse is more often true, some social or professional networking profiles or portions thereof don’t require permission to access or routinely grant access, whereas some web sites and blogs do limit access.)

Further, even if an employer obtains genetic information through a source deemed commercially and publicly available, it’s not protected by the exemption if the employer sought access to that source with the intent of obtaining genetic information. The EEOC stated, “[f]or example, an employer who acquires genetic information by conducting an Internet search for the name of an employee and a particular genetic marker will not be protected by this exception, even if the information the employer ultimately obtained was from a source that is commercially and publicly available.” This may seem intuitive, but as commentators pointed out, this probably would have been technically possible under the proposed regulations, so it makes sense for the EEOC to include this specific clarification.

The regulations further explains that employers may not obtain genetic information through media sources – even if commercially and publicly available – if the employer is likely to acquire genetic information by accessing those sources. While some might argue an employer should assume an employee’s Facebook profile is likely to contain genetic information, the regulation suggests a higher “likely” standard, “such as Web site and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination.”

The text of the final regulations may be found at http://bit.ly/9LUP85 and the EEOC’s question-and-answer documents on the final GINA regulations may be found at http://www.eeoc.gov/laws/types/genetic.cfm.

FCC Proposes "Bill Shock" Rules to Help Wireless Users Avoid Unexpected Charges

The Federal Communications Commission today proposed new rules that would require mobile service providers to give alerts to customers to avoid unexpected overage charges on their bills.  The FCC says mobile "bill shock" (unexpected jump in the monthly bill) is an increasing problem for consumers; the Commission says it wants to help consumers better control their mobile costs.  One in six mobile users have experienced bill shock -- more than half of them experienced an increase of $50 and up. 

The FCC wants to prevent this so-called bill shock by requiring cell companies to give consumers simple alerts, in the form of voice or texts, before they incur overage charges.  The rules would also require providers to alert customers when they're about to incur international or other roaming charges that aren't covered by their plans and if they're going to be charged more than the normal rates.  Finally, the rules would also require clear disclosure of tools the provider offers to set usage limits or reviews of usage balances.  The proposed rulemaking also seeks comment on whether all carriers should be required to give consumers the option of setting their own usage caps -- and also seeks comment on whether small providers or prepaid services should get an exemption from these requirements or be given extra time to comply.

Mobile companies have long been criticized by consumer-protection groups for what's perceived to be deceptive billing, early termination fees, exclusivity deals, and the like.

For a creative description of the consumer-protection issues facing wireless carriers (and because I enjoy creative writers!), see Timothy Noah's write-up for Slate.

Article: Use of Social Media Evidence in Workers' Compensation Litigation

Professor Gregory M. Duhl and attorney Jaclyn Millner recently made available on SSRN a draft of their article that will be published in the Pace Law Review; it's focused on the use of social networking evidence in workers' compensation litigation.

From the paper's abstract:

. . . In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

What a timely topic!  I look forward to reading it, and hope you find it informative.  Thanks to Professor Duhl for bringing this to my attention!

Business Bloggers & Fair Use Questions

Check out my first IowaBiz blog post at the Business Record's blog, where I'll be blogging on internet law issues.  My first post discusses a few copyright issues facing individuals who blog for business purposes, with a focus on the fair use doctrine.

Hospital Workers Post Pics of Dying Man on Facebook: Highlights Need to Educate Employees on Proper Use of Social Media

So. Not. Cool.

Sixty-year-old William Wells arrived at St. Mary Medical Center's emergency room in Long Beach with more than a dozen stab wounds. According to the Los Angeles Times, his throat had been lacerated so severely, he was almost decapitated.

The first instinct of a handful of hospital workers there that day? Rather than rush to the aid of the dying man, they took pictures of him . . . and then, yes, they posted them on Facebook.

According to the Los Angeles Times news story, the hospital fired four staff members and disciplined three. At least two involved were nurses (but they apparently weren't fired).

This sad story highlights some of the challenges healthcare facilities face in today's social media frenzied culture. Hospitals and clinics struggle to balance their use of social media sites for marketing, recruiting, and advertising purposes against the need to protect patient privacy. But let me suggest that social media isn't really the problem -- the problem arises when employees make poor judgment calls when using these new online tools.  Of course, these employees should have known posting pictures of a dying man on Facebook was a bad idea.  But some privacy breaches and other workplace problems could be prevented if employers took a more concerted effort to identify their business needs and to educate employees about social media expectations.

Healthcare facilities often implement across-the-board bans of Facebook and other social networking sites at the workplace, assuming this kind of broad-brush approach will be the most effective. Managers may be forgetting that blocking workstation access to Facebook wouldn't have changed the St. Mary employees' access to their smartphone cameras and 3G mobile internet. Frankly, I don't think all-out bans of social media sites at the workplace are practical or effective.  Employers should take the time to create, communicate, and maintain a thoughtfully considered social media policy. Although some judgment calls seem intuitive, employers need to communicate their requirements and expectations to employees regarding employee use of social media.

New Jersey Town Adds DUI Pics to Facebook Page

Oh, my. Check out this story over at cnet about a New Jersey township that recently decided it will post arrest photos on its Facebook page. According to the story, the police department has maintained a Facebook page for about six months, but just this week decided to add DUI pictures to the site.

Social Media Club Des Moines Presentation Tomorrow: "Legal Side of Social Media"

If you're in the Des Moines area, come on over to Mars Cafe in the morning to join Social Media Club Des Moines (SMCDSM) for my presentation on various legal issues related to social media. 

 

SMCDSM organized this free event, and it's sponsored by Mars Cafe (owned by my colleague, Larry James, Jr.!) and Dickinson, Mackaman, Tyler & Hagen PC (my employer!). 

Mars Cafe is located at 2318 University Avenue in Des Moines. Come early to grab food and drink, and my presentation will begin at 7:30a tomorrow, Tuesday, August 10, 2010.  The presentation will be about 30 minutes, with time thereafter for some discussion and/or Q&A.

For more information or to RSVP, check out the SMCDSM's event description here.

Networking Lawyers! JD Supra & LinkedIn Announce New "Legal Updates" Feature

JD Supra announced a joint effort with LinkedIn to launch "Legal Updates," described as:

"the first and only application specifically created to distribute legal content (and help lawyers connect with the right people) on the world's largest professional network."

LinkedIn is a professional networking website, and JD Supra users create online portfolios to share content. The collaborative application lets LinkedIn users install the Legal Updates news feed of legal content from JD Supra. This new tool allows users to better target their relevant audiences - the feeds are customizable, allowing users to sign up for information related to specific subjects or industries (real estate, employment, etc.) or for feeds from particular sources (individuals, law firms, etc.).

The announcement sums up the power of this resource well, saying this new tool allows "targeted delivery of useful legal information to professionals across the LinkedIn network..."

Keep your eye on this new networking application, already being touted as a "game changer in the online dissemination and marketing of legal work"!

Blagojevich Judge Won't Release Juror Names Because of those Darn Bloggers and Facebookers

The Ward Room over at NBC News in Chicago reports that the judge in the Rod Blagojevich corruption trial announced that juror names would not be released because of bloggers and social media sites like Facebook. After journalists challenged the judge's decision, the Court of Appeals ruled that the judge will have to hold a hearing on the issue -- which is set for next week.

I understand the judge's concern over protecting the jurors, and thus, the integrity of our legal system. But the former journalist in me struggles to accept this kind of ruling as beneficial for the public at large. Ensuring freedom of the press -- particularly on a matter of important political and public concern -- also preserves and protects the integrity of the system.

The Chicago Tribune also ran a good summary on the issue here.

School District Considers Social Media Policy for Teachers & Other Employees

Daniel Schwartz has an interesting post over at the Connecticut Employment Law Blog, pointing to a Connecticut school district considering a social media policy for its teachers:  School Board Considers Social Media Usage Policy for Teachers, Other Employees.

Schwartz also mentions a list of sample policies I've perused a number of times myself and have found to be a great resource:  the "Social Media Policies Database" made available over at the Compliance Building blog.  Of course, I encourage my readers to hearken back to my earlier cautions about relying on sample policies, as the public/private employer distinction raises another reason to thoughtfully and carefully approach sample policies. Remember that a school district, as a public employer, has First Amendment issues to worry about that private employers generally don't need to consider when drafting employment policies. Public employers may also want to consider, for example, Fourth Amendment implications of conducting online searches or monitoring use of technology, whether some level of due process might be owed before disciplining an employee, and so on.  Remember that a policy drafted for a private employer won't address First Amendment or other issues only relevant to a public employer . . . and a policy drafted for a public employer probably won't be a great fit for a private employer. Still, employers may find some helpful nuggets of information in the MANY samples out there!

US Supreme Court Issues Opinion in Quon Sexting Case

The United States Supreme Court ruled today that a public employer’s search of sexually explicit text messages on a police officer’s employer-issued pager did not constitute an illegal invasion of privacy.  The Court overturned the Ninth Circuit, which had determined the employee had a reasonable expectation of privacy in his text messages and that the city’s search was not reasonable.

The city argued its employees had no reasonable expectation of privacy in communications made on employer-provided devices.  The Court explained:

The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers. . . . Chief Scharf’s memo and Duke’s statements made clear that this official policy extended to text messaging.

The disagreement over the expectation of privacy question arose as a result of later communications by the officer responsible for the city's contract with Arch Wireless, and whether these later representations overrode the city's official policy.  The Court, however, avoided deciding that question -- resting its decision on narrower grounds.  The Court advised, "Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices." 

The Court acknowledged that "[r]apid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior" and concluded that "[a]t present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve."  The Court said a broad holding on the question of employee privacy expectations vis-à-vis employer-provided equipment may well have implications for future cases that can't be predicted.  The Court essentially moved on to simply assume without deciding that even if Quon had a reasonable expectation of privacy in his text messages, the city did not violate the Fourth Amendment by obtaining and reviewing the transcripts in this case.

Stay tuned for further analysis and comment on this important case!  More posts on this case will come after I've had more time to review the details more closely.

Final GINA Regs Delayed: GINA & Social Media Considerations for Employers

Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) makes it illegal to discriminate against employees or applicants because of genetic information. It prohibits using genetic information to make employment decisions, prohibits acquisition of genetic information by employers, and limits disclosure of genetic information by employers. (Harassment and retaliation are also forbidden.)  Title II took effect on November 21, 2009. The proposed regulations were published last year, and the final regulations were initially expected to be published in May of 2010, but publication of the final rule has been delayed.

This leaves employers (and their lawyers) in interpretation-limbo a while longer. With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation.

Some acquisitions of genetic information aren’t illegal; the law provides six exceptions. One of those exceptions is inadvertent acquisition. “Well, I didn’t know I was going to find this information on his profile.” This probably isn’t going to protect employers. If a supervisor or human resources manager intentionally accesses a profile, the information found there isn’t acquired inadvertently. (Depending on the facts, I suppose this could change. If an employee sends a friend request to his supervisor, and weeks later, the employee’s status update appears in the supervisor’s Facebook news feed – there may be a better argument for the inadvertent acquisition defense.)

The better possibility is the exception for “commercially and publicly available information.” The statute identifies newspapers, magazines, periodicals, and books as potential sources of genetic information. The proposed regulation adds to the list information obtained through electronic media (internet, television, and movies). This suggests social media would be exempted – but the EEOC then specifically invited public comment on whether “personal Web sites, or social networking sites” would be a prohibited or exempted source of genetic information. So, it’s still not clear whether social media profiles would fall under the "commercially and publicly available information" exemption. If it doesn’t fall within the scope of this exception, an employer that obtains genetic information by checking an applicant or employee profile would likely be violating GINA.

Of course, even if a social networking profile turns out to be an excepted source of information, employers still must be careful in how they use the information they acquire. As is the case with any other kind of unlawful discrimination, an adverse employment action taken after the employer becomes aware of an employee’s protected status might suggest the employment decision was because of the protected status and not performance.  (Not only true in the context of current employment relationships, but also in the context of hiring.)

Pace Law Review Call for Articles on Social Networking & the Law

The Pace Law Review will be publishing a themed issue on social media and the law, and Executive Articles Editor, Nicholas Tapert, asked if I would help them spread the call for articles throughout the legal community. The following description comes from Nicholas:

The editors of the Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to an issue slated for publication during the Fall of 2010. This issue focuses on how the internet and social networking affects the legal landscape. We hope to publish articles that examine the evolving relationships between this technology and the many different areas of law it impacts, including evidence, electronic discovery, privacy, ethics, and tort. We believe there is room for a lively written discussion on these subjects. As examples, Facebook, Myspace, and Twitter are regularly the subject of national headlines; in 2008 the Federal Rules of Evidence were amended in an attempt to address the very substantial issues created by e-discovery; and in the 2009-10 term, the Supreme Court heard a case that concerned whether a government employee has a reasonable expectation of privacy when “sexting” on an employer-provided phone.

Please submit proposals of no more than 500 words by attachment to plr@law.pace.edu by June 30, 2010. We welcome proposals for articles, essays, and book reviews. All proposals should include the author's name, title, institutional affiliation, contact information, and should concern issues related to the subject-matter described above. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer's expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV.

Waitress Fired After Complaining on Facebook: "Legally Justified" Does Not Always Equal "Good PR"

The Huffington Post reports that Brixx Pizza fired a North Carolina waitress after she complained on Facebook about a customer's stingy tipping.

According to the Post, a couple sat at their table for three hours, and waitress Ashley Johnson, 22, said the customers kept her at work an hour after she should have been able to clock out. The couple rewarded her with a $5 tip.

A frustrated Johnson criticized them on her Facebook page -- calling the couple cheap and mentioning her employer by name.

Brixx got in touch with Johnson shortly thereafter, informing her that it was terminating her employment because her Facebook post violated company policy against disparaging customers and casting the restaurant in a negative light via social network sites.

Brixx posted the following official statement on its Facebook page discussion board:

Brixx Wood Fired Pizza appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them.

As an employer, it is necessary to enforce policies for the benefit of all our hardworking employees and valued customers. Our policies ensure Brixx is an enjoyable place to both work AND dine. We welcome your comments, but please keep it clean!

As evidenced by the backlash on the company's Facebook page, employers have to consider not only legal implications of a Facebook firing, but also the practical implications -- including a potential backlash from the public that may be triggered by discipline for an employee's online activity. Although the company may be able to justify the termination from a legal perspective, it won't be easy to recover from the PR nightmare that could ensue.   

One user commented, in part, "You've gone & made Ashley Johnson famous. And your company INfamous." One particularly insightful comment aptly summarizes the point of my post:

Thanks to Becca for the tip on this story!

Fifteen Privacy & Consumer Groups File FTC Complaint Against Facebook

It's no real secret that Facebook's latest privacy changes have stirred up a lot of conversation.  In response to those changes, fifteen agencies recently lodged a formal complaint against Facebook with the Federal Trade Commission.

Not-for-profit research center, Electronic Privacy Information Center ("EPIC") announced last week that it -- along with 14 other privacy and consumer protection organizations -- filed a complaint with the FTC accusing Facebook of engaging in unfair and deceptive trade practices. 

The complaint argues that changes Facebook made to its privacy settings adversely affect the network's users by disclosing personal information that users previously had not made available or had previously restricted.  The complaint states such changes constitute unfair and deceptive trade practices that "violate user expectations, diminish user privacy, and contradict Facebook’s own representations.  Pointing to the specifics, Paragraph 2 of the Introduction alleges:

"The following business practices are unfair and deceptive under Section 5 of the Federal Trade Commission Act:  Facebook disclosed users’ personal information to Microsoft, Yelp, and Pandora without first obtaining users’ consent; Facebook disclosed users’ information—including details concerning employment history, education, location, hometown, film preferences, music preferences, and reading preferences—to which users previously restricted access; and Facebook disclosed information to the public even when users elect to make that information available to friends only." 

EPIC has complained to the FTC about Facebook and other social networking sites (such as Google Buzz) in the past, but EPIC has made the May 5, 2010 complaint against Facebook available here.

Update: Social Media Law Student just shared a relevant post:
ACLU Weighs in on Facebook’s Privacy Issues.

Facebook Privacy: More Changes & Controversy (Weigh In!)

In its short life, Facebook has experienced a number of changes to its privacy policy.  You may remember my December post, where I discussed a number of controversial changes being implemented -- perhaps most sigificant at that time:  deeming "publicly available" certain information users once kept private.  As I alluded to in last Thursday's blog post, Facebook is at it again.  This time, Facebook boldly makes its users' interests, "likes," and connections publicly available.

As this PCWorld article points out, Facebook initially gained popularity because of its default privacy restrictions -- when you joined, the default settings generally protected your personal information.  Those were the good ol' days.  As Mr. Tynan says of Facebook today:

The fact is, Facebook has steadily - and quite deliberately - carved away at the privacy protections its service was originally founded upon.  It has essentially created a bait-and-switch scam:  promising one thing but delivering something entirely different.

The Electronic Frontier Foundation offers an enlightening timeline illustrating what it calls Facebook's "eroding privacy policy."  A graphic representation of the changes can be found on Matt McKeon's site.

As Mashable mentions, despite the privacy concerns among users, Facebook's new social plugins have been popping up with increasing frequency across the web.  The plugins let sites add certain Facebook features without making users log in to use them.  For example, readers of my blog can "like" a post by clicking the new button appearing right under the post title.  The plugins were announced less than a month ago, and they already appear on more than 100,000 web sites. 

Facebook claims it's just trying to give users more social and personalized experiences on the web. According to the popular social networking site, its users love the changes and the controversy/criticism comes largely from media and commentators rather than its users.

What do you think?  Are Facebook users really happily opting in to enjoy more social features, or has Facebook duped its users?  Do you think more users will begin dropping Facebook?

Erickson's Social Networking Law Blog Facebook Page

Erickson's Social Networking Law Blog just launched its official Facebook Page! (These used to be called "Facebook Fan Pages," but apparently, now the cool kids are just calling them "Facebook Pages." Like when Ricky Schroder became Rick Schroder.)

It's brand new, so please feel free to send me any suggestions you may have for improvements. If you visit the page, please consider showing your support by clicking the "Like" button! (This, too, has changed. Users used to become "Fans" of Pages . . . well, they actually became "Fans" of "Fan Pages" . . . but now, rather than selecting "Become a Fan," users connect to pages by clicking the "Like" button. This is among the most recent of Facebook's continued changes to formatting and privacy controls -- the propriety/implications of which may be the subject of a future blog post. In the meantime, I may have qualified for the world's longest parenthetical award.)

Social Media & Hiring Posts Published on New Iowa Employer Law Blog

The Dickinson, Mackaman, Tyler, & Hagen employment and labor law practice group recently launched a new law blog, Iowa Employer Law Blog (iowaemployerlaw.com). The new blog provides general information and insight on legal developments of interest to Iowa employers and other employment law attorneys.

I recently blogged about social media and the hiring process on the Iowa Employer Law Blog. The first post, Social Media and the Hiring Process, Part I:  Benefits & Risks, was published on April 15.  Social Media and the Hiring Process, Part II:  Policy Making was published on April 21.

The Dickinson employment and labor law practice group is one of Iowa's largest and most acclaimed, with nine attorneys, five of whom practice primarily in employment law. The group is also one of only three such practice groups in Iowa to earn a "Band 1" ranking in the Labor and Employment area in the most recent edition of Chambers USA:  America's Leading Lawyers for Business. 

Just in case you haven't noticed via other linking on my blog, one of those Dickinson attorneys who practices primarily in employment law with the firm is yours truly.  (Note that this may be the kind of "material connection" that should be disclosed pursuant to the FTC endorsement guidelines I discussed on May 3, 2010, Potential Employer Liability for Employee Endorsements Under FTC Guidelines.)

Potential Employer Liability for Employee Endorsements Under FTC Guidelines

You may recall my earlier post, "FTC to Require Bloggers to Disclose Payments or Freebies for Endorsements," discussing the first update since 1980 to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. That earlier post focused primarily on the guide's requirement that bloggers disclose any payments or in-kind donations (i.e., freebies) received in exchange for reviewing a product or service. But remember these new guidelines require disclosures of any "material connections" between endorsers and the advertised companies (i.e., connections between the endorser and endorsee). Material connections may arise as a result of some relationship other than just payment or free products directly in exchange for a positive review. For example, under the new guides, an employer could be liable for online communications by its employee if the employee touts a product or service offered by his employer, but fails to make clear he works for the company he's promoting or "endorsing."  The guidelines include the following example (Example 8 in the final rule):

An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

It seems the new guides could potentially impose liability on employers for things their employees say online, even if the employer did not actually know those things were being said. The Commission seems to recognize that companies do not have control over all employee conduct. However, the FTC suggests that an employer may protect itself from liability if the employer has an appropriate policy governing social media participation by employees, clearly articulates that policy to employees, and consistently enforces that policy. The FTC explains:

With respect to Example 8 [laid out above], one commenter asserted that if the employer has instituted policies and practices concerning "social media participation" by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision as to whether law enforcement action would be an appropriate use of agency resources given the facts set forth in Example 8. Indeed, although the Commission has brought law enforcement actions against companies whose failure to establish or maintain appropriate internal procedures resulted in consumer injury, it is not aware of any instance in which an enforcement action was brought against a company for the actions of a single "rogue" employee who violated established company policy that adequately covered the conduct in question.

In sum, employees (as well as business owners or others with a material connection to a company) who use social media to endorse a product or service offered by their company should notify readers of their connection with the business they are talking about, and employers should implement or update social media policies to take into account the FTC guidelines.

New Custom Web Clip (Pseudo "App") for Your iPhone or iPod!

Add Social Networking Law Blog's new custom web clip to the home screen of your iPhone or iPod!  It will look like the icon to the right (except smaller, and with the pretty rounded corners like your other apps).

Do you think socialnetworkinglawblog is awesome (despite its freakishly long name)?  If you'd like to keep track of all the social media law fun while you're on the run, try adding the blog's new custom web clip icon to your iPhone's home screen for easy access!  It's incredibly simply:  just browse to the site, hit the "plus" button at the bottom of your screen, tap "Add to Home Screen," and edit the name to something a bit shorter (i.e., "Law Blog").  Here are some "illustrated" step-by-step instructions:

   (1)  First, pull up your Safari browser and go to http://www.socialnetworkinglawblog.com/

   (2)  Next, tap the plus (+) at the bottom of the screen.

   (3)  Now select "Add to Home Screen."

  
   (4)  The name automatically defaults to Social Networking Law Blog, but I suggest editing to just "Law Blog," "SNLaw Blog," or other shorter (around 10 or fewer characters) title.  Then tap the blue "Add" in the top right corner.

 
   (5)  Now, sit back and enjoy your new web clip icon!

Special thanks to Dan Dickinson for his help!  (Check out Dan's blog for some guidance on creating a custom web clip for your own site.)

Employment Law Considerations: Employee Use of Geolocation Services

Social media asking users, “What are you doing?” That’s so 2009.

Now, social media asks, “Where are you?”

Geolocation services like Foursquare and Gowalla allow users to check in to (or otherwise share) their locations by using GPS- and web-enabled phones, iPods, or other electronic devices. These sites usually incorporate elements of both social networking and gaming: users may connect with one another, but they also compete to earn points, discounts, titles (i.e., the “Mayor” of X or Y bar might get free beer), badges, etc. These sites often incorporate a user-review-esque quality, too, allowing users to make recommendations for their favorite locations. Of course, sites like this may also potentially boost the local economy, and offer users tips and suggestions for other nearby businesses. Foursquare, for example, explains it “will keep track of the things you’ve done, help you create To-Do lists and even suggest new experiences to seek out.”

Similarly, earlier this month, Twitter rolled out its “Tweet With Your Location” feature that lets users add location information to their Tweets (this function defaults to “off” and must be enabled by the user).

These sites report not only where a user is, but may also say why, when, how often, and with whom . . .

For the same reasons more and more employers are checking employee and candidate’s Facebook profiles, LinkedIn connections, and Tweets, employers may also want to see what their employees are up to on these geolocation sites.

It’s not unusual for an employer to monitor an employee’s or candidate’s online presence. Earlier posts touched upon some issues employers may want to consider when using social media to investigate candidates during the hiring process or before disciplining current employees based on their online activities.

These and similar issues may be implicated when employers look up an employee’s online geolocation information or profile as well.

Remember that, for the most part, the same old traditional rules apply. The key becomes identifying (sometimes predicting) how they apply, or may be implicated, in the ever-changing context of online media.

For example, did Employee Eddy lie about missing work last Friday because of a head cold? Maybe Foursquare reports that he “checked in” at the local sports bar at 4 pm while his colleagues were heading to the departmental marketing meeting. Discipline may well be justified.

But different circumstances may call for different considerations. What if Eddy checked in to the bar during only off-duty hours? It’s his favorite bar, so he goes there often – and he checks in each time (he wants to become the bar’s “Mayor” after all!). Supervisor Sam sees Eddy visits the bar regularly, and he wants to fire Eddy just because he thinks the frequent weeknight trips to the bar reflect poorly on his character. What if it happened to be a gay bar (in some states, including Iowa, sexual orientation is a protected class)? Did Supervisor Sam bother to look at the beer bong pictures posted on Facebook by other employees?

Such common use of GPS-based technology and other geolocation services is new enough that there’s little to no legal authority directly on point. The New York Court of Appeals, however, offers the following insightful commentary (although this arose in the context of a criminal case, it wonderfully articulates some points employers and employment lawyers may wish to consider):

“The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations – political, religious, amicable and amorous, to name only a few – and of the pattern of our professional and avocational pursuits. . . . And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons-to mention just a few of the highly feasible empirical configurations.”

- People v. Weaver, 909 N.E.2d 1195, 1199-1200 (N.Y. 2009)

For more information on the various geolocation services and sites out there, Daniel Ionescu provides a nice summary of the various services in this PCWorld article that ran yesterday.

Classmates.com Settles Deceptive Advertising Class Action, Still Faces Privacy Class Action, & Dealing with Congressional Investigation to Boot

Classmates.com has agreed to pay up to $9.5 million to users who say they were duped into paying a $15 subscription fee in response to the site's deceptive advertising scheme.

Founded way back in 1995 -- the pre-historic Web 1.0 era -- Classmates.com was one of the first social networking sites. Today, it's perhaps best known for its cheese-tastic ads -- usually involving old yearbook pictures and a little quip along the lines of "She married him?!"

But it was a different marketing tactic that led a California man to file a class action lawsuit against the site for false advertising:  after he signed up for a free membership with the site (which really doesn't let users take advantage of many -- if any -- interesting online tools or networking functions), Classmates.com sent him messages along the lines of "Your classmate is looking for you!" Or, "See who viewed your profile!"

But getting this juicy stuff (is it your junior high crush?! is it that jerk who stood you up on prom night?!) required an upgrade to a paid membership. The problem was, after he forked over the payment, he learned no one was looking for him after all.

Talk about kicking the lonely guy when he's down.

In November of 2008, Anthony Michaels filed a lawsuit against Classmates.com for deceptive advertising, and according to wired.com, now the site (although it denies wrongdoing) has agreed to pay up to $9.5 million in refunds to users who upgraded to a paid membership after seeing those kinds of advertisements.  The proposed settlement awaits court approval.

Classmates.com has long faced criticism for its marketing and advertising, and for years has faced consumer complaints.

Oh, but that's not all.

Classmates.com and its parent company, United Online, (along with other retailers) have also been dealing with a congressional investigation stemming from questionable marketing tactics and complaints from people who found mysterious charges on their credit card invoices.

But wait.  There's more.

Earlier this month, two named plaintiffs filed a class action lawsuit against Classmates.com for recent changes to its privacy policy that resulted in user profile information going public.  The plaintiffs sued Classmates.com for violations of the Electronic Communications Privacy Act (well, the attorneys accidentally referred to it as the Electronic Data Privacy Act), violations of the state consumer protection act, breach of contract, unjust enrichment; it also asks for an injunction.

I guess we can chalk this up as yet another reason so many of us just want to forget our high school years.

Illinois Law to Allow Sexting Teen Offenders Avoid Sex Offender Status

News story from the Chicago Sun-Times -- Illinois legislation to lessen the penalty imposed against minors who engage in "sexting."

'Sexting' teen offenders may be spared sex offender punishment :: CHICAGO SUN-TIMES :: Politics

(Thanks for the tip, Ken!)

Law Blog Content: Who's the Owner?

Kevin O'Keefe offers insightful analysis on the question, "who owns your law blog content" in response to the U.S. Supreme Court's decision on Tuesday to reinstate a class action settlement filed by freelance writers who allege that online databases and print publishers violated copyright law by reproducing the writers' content on electronic databases without permission.

O'Keefe points out the Supreme Court's decision "highlights the murky waters we're going to navigate on this issue [of blog content ownership and copyright law] as more and more publishers re-purpose your blog content, with and without your permission as the blogger."

Yelp! Faces Federal Class Action Lawsuit

Bad online review? Interested in buying your way out of it?

Yelp is a popular interactive website allowing its users to create and access reviews of local businesses and services.  The site now faces serious accusations of unfair business practices.

After Yelp! received some bad press for what many believe to be shady advertising practices, a class action lawsuit was filed yesterday in a California federal court. According to a press release posted on the Yelp Class Action Website: 

"The lawsuit alleges that Yelp runs an extortion scheme in which the company’s employees call businesses demanding monthly payments, in the guise of 'advertising contracts,' in exchange for removing or modifying negative reviews appearing on the website."

I first learned of the lawsuit via this post by Bradford Schmidt.

School Faces Class Action Lawsuit for Secretly Spying on Kids at Home Via Remote-Controlled Webcams

Let's say a school administrator crawled into your kid's backpack to sneak into your home. 

Creepy McCreeperson?  A Pennsylvania family sure thought so when they experienced the functional equivalent.

The Robbins family filed a federal class action lawsuit against a school district after learning the district used a webcam in a school-issued laptop to secretly spy on their 15-year-old son when he was at home. They've sued for invasion of privacy under state law, violation of the Pennsylvania Wiretapping and Electronic Surveillance Act, and violations of the federal Electronic Communications Privacy Act, Computer Fraud Abuse Act, Stored Communications Act, and the Fourth Amendment.

According to the complaint (which Philly.com posted online), the school surreptitiously spied on students by remotely activating the webcams installed on the laptops the Lower Merion School District issued to them.

The family learned about the remote spying in November of 2009, when an assistant prinicipal told their son, Blake, that she believed he “was engaged in improper behavior in his home, and cited as evidence a photograph from the Webcam embedded in [his] personal laptop issued by the School District.”

The school posted a response on its website, essentially admitting the laptops' webcams can be remotely activated, but saying it was meant to be used for security purposes -- to track down a lost or stolen piece of equipment.

(Thanks to Bret D. for the tip on this story!)

Update: One More Buzz Kill For Google This Week

Yesterday's post discussed the rough week Google has had since launching Google Buzz, its new social networking service offered through Gmail. 

Google's week just got a little bit worse.

This morning, news sources report that a federal class action lawsuit has been filed by a Florida woman in San Jose.  The complaint alleges Google illegally shared users' personal information via Google Buzz without their consent.

Privacy Concerns Are All the Buzz

Google jumped on the social media bandwagon, but it's not going as well as Google had hoped.

Last week, Google launched Google Buzz, a social media service built right into Gmail, Google’s webmail tool.

Cue: immediate backlash from many users and privacy experts alike.

Initially, Google Buzz auto-populated a social network for Gmail users based on a user’s frequent contacts, potentially revealing relationships the user would rather not publicly announce. Buzz also automatically linked up other Google services (Google Reader, for example).

In response to user privacy worries, Google announced changes to Buzz twice within the first four days of its launch.

Despite those changes, the Electronic Privacy Information Center filed a complaint with the Federal Trade Commission yesterday, for what it called unfair and deceptive trade practices. In its complaint, EPIC asks the FTC to investigate Google Buzz for business practices it believes “violated user privacy expectations, diminished user privacy, contradicted Google’s own privacy policy, and may have also violated federal wiretap laws.” (In December, EPIC filed a similar complaint against Facebook after the popular social networking site changed its privacy settings.).

CBC News has also reported that the Office of the Privacy Commissioner of Canada will be taking a closer look at Google Buzz due to increasing privacy concerns, as well.

The woes don’t stop there. CNET News reports that security experts identified a security problem with the Buzz for Mobile service, making Google Buzz accounts susceptible to hacking. Although Google has already corrected the problem, this was just one more snag Google didn’t anticipate.

Yikes.  That's one rough week, Google.

Union Says Thomson Reuters Improperly Restricted Employee Use of Twitter

A labor union has accused Thomson Reuters of illegal pay cuts, as well as improperly restricting what its employees say via Twitter.

The Newspaper Guild of New York filed the charge with the National Labor Relations Board.

The Guild says the company instituted a Twitter policy it never negotiated with the Guild, which prohibits its employees from tweeting anything "that would damage the reputation of Reuters News or Thomson Reuters." According to PR Newswire:

[a] union activist was "reminded" of the policy after responding to a senior manager's call to "join the (Twitter) conversation on making Reuters the best place to work" with a tweet that said: "One way to make this the best place to work is to deal honestly with Guild members."

Thomson Reuters disputes the Guild's illegal pay cut accusations, saying it was actually guaranteeing a minimum .5% salary hike for the Reuters News service's approximately 400 unionized journalists.

Privacy: Facebook Legal Department Hopes for Guidance from Court

So, what exactly are Facebook's legal duties with respect to protecting the privacy of its 350 million users? 

Well, Facebook isn't even sure.  And the popular social networking site would like a court to explain that to all of us.

Click here for a write-up discussing the keynote address at LegalTech New York:  "Facebook:  Perspectives on Corporate eDiscovery and Social Media," delivered by Facebook's deputy general counsel, Mark Howitson.

FINRA Issues Guidance on Blogs and Social Networking Web Sites

This week, FINRA -- the largest independent U.S. securities regulator -- issued Regulatory Notice 10-06, Guidance on Blogs and Social Networking Web Sites. The Executive Summary provides:

Americans are increasingly using social media Web sites, such as blogs and social networking sites, for business and personal communications. Firms have asked FINRA staff how the FINRA rules governing communications with the public apply to social media sites that are sponsored by a firm or its registered representatives. This Notice provides guidance to firms regarding these issues.

The regulatory guidance helps brokerage firms understand how they may appropriately utilize social media sites for business purposes, while also ensuring investor protection.  In its guidance (laid out in Q&A format), FINRA:

• Discusses a brokerage firm's recordkeeping duties, saying firms must retain all business-related communications made by their "associated persons" via online interactive media sites like Facebook, Twitter, and blogs (referring to Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110).
• Discusses when communications by a firm or its personnel on social media sites might constitute a "recommendation" and potentially trigger the so-called FINRA "suitability rule" (requiring additional disclosures).
• Describes types of interactive electronic forums, such as participation in an interactive electronic forum like chat rooms or online seminars (and sometimes blogs and social networking sites).  Although a registered principal may not have to pre-approve communications made in an interactive electronic forum, those forums are still subject to other supervisory requirements and the content requirements of FINRA’s communications rule.
• Clarifies a brokerage firm's responsibilities with regard to supervising use of social media sites by its "associated persons," getting into some specific duties and required policies and procedures.
• Addresses issues related to third-party posts on a firm's social networking site.  

Please see the regulatory notice for more information. FINRA is also offering a webinar on February 3, 2010 on the new guidance "Compliance Considerations for Social Networking Sites."

New Article: Workplace Consequences of Electronic Exhibitionism and Voyeurism

William A. Herbert, New York State Public Employment Relations Board Deputy Chair, brought to my attention a recent article he authored, “Workplace Consequences of Electronic Exhibitionism and Voyeurism,” which may be downloaded at the Social Science Research Network. A number of authors and commentators have tackled various legal issues related to social media, privacy, and the workplace, but Herbert’s commentary offers a particularly insightful discussion with its special emphasis on the social psychological aspects of the world of Web 2.0. 

"Despite the general reluctance to bare all through old media, new communicative technologies are leading, if not encouraging, individuals to engage in an unprecedented degree of exhibitionism about their personal lives, thoughts and activities to a virtual worldwide audience. Frequently, such communications relate directly or indirectly to work or co-workers and have the potential for causing negative employment consequences." - William A. Herbert in "Workplace Consequences of Electronic Exhibitionism and Voyeurism"

For other posts related to social media and the workplace, click here.

UPDATE: Supreme Court Again Blocks Broadcasting of California Prop. 8 Trial

As I mentioned Tuesday, the U.S. Supreme Court on Monday issued a temporary stay to bar online broadcasting of the Proposition 8 trial in California. Although the stay was set to expire Wednesday, the Supreme Court issued another order (splitting 5-4) staying the district court's January 7, 2010 order to the extent it permitted live streaming of court proceedings. The High Court stayed the district court's order (that would have allowed the broadcasting) because it said the lower court likely violated federal law when it amended its local rules to allow a broadcast of the trial.  The Court said:

We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.

So, the Court didn't really discuss its thoughts on the more specific issue of online streaming. The Court invited the parties to seek a final order by filing a petition for a writ of certiorari or a writ of mandamus (hinting it would likely grant review of either such filing).

SCOTUSblog has a nice summary of the case here.

Hat tip to Tyler C. for giving me the heads-up on yesterday's order!

Supreme Court Stops YouTube Broadcast of Prop. 8 Trial

Just before the trial addressing the constitutionality of California's same-sex marriage ban, the U.S. Supreme Court issued an order temporarily halting an online broadcast of the trial. The trial began yesterday in San Francisco, and the Court's order expires on Wednesday. Read the Los Angeles Times report here.

Use of Social Media Before, During, & After Employment Relationship

Check out "Social Media Permeate the Employment Life Cycle" on The National Law Journal web site, discussing why and how employers should address the use of social media before, during, and after the employment relationship of their employees.