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.