Is your workplace prepared for today's electronic workplace? Are you prepared for social media? This presentation gives you guidance.

1. EMPLOYMENT LAW OVERVIEW
MISSOURI BANKER’S CONFERENCE - 2012
David M. Kight, Esq.
Spencer Fane Britt & Browne, LLP
Kansas City, Missouri Overland Park, Kansas Jefferson City, Missouri
St. Louis, Missouri Omaha, Nebraska Denver, Colorado

2. PROGRAM OVERVIEW
Social Media in the Workplace
Dual / Multi-Use Devices in the Workplace
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3. • www.spencerfane.com/hrsolutions
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4. Where we are today..
The intersection
of social media
and the law has
arrived.
The statutes are
starting to come
forth…
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5. LAWS ON THE BOOKS?
No more shoulder surfing?
So far in 2012, three states have enacted employee social media laws. California, Maryland
and Illinois each have enacted laws which prohibit an employer from requesting or requiring
disclosure of employee / applicant social media log in credentials.
Eleven other states (Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey,
New York, Ohio, Pennsylvania, South Carolina and Washington) are considering similar
legislation.
Two different bills have been introduced in Congress to address this issue but given the
election year, may go nowhere. (Social Networking Online Protection Act (H.R. 5050) and
Password Protection Act of 2012 (S. 3074/H.R. 5684)).
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6. AN OVERVIEW OF
SOCIAL MEDIA AND
LITIGATION
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7. Social Media Facts
• It is discoverable in litigation.
• It can be used as evidence.
• It might be considered free speech.
• Doesn’t guarantee you win your case.
• Might be deemed a business expectancy.
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8. Discovery of Social Media Content
• E.E.O.C. v. Simply Storage
Management, 270 F.R.D. 430 (S.D. Ind.
2010).
• In this case, the employer was sued for
sexual harassment by two employees.
• In discovery, the employer sought
production of photographs and videos
as well as updates and messages on
their Facebook and MySpace pages.
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9. Discovery of Social Media Content
• The EEOC objected arguing privacy and an
attempt to embarrass the plaintiffs.
• The employer countered that the EEOC had
placed the emotional health of the woman
at issue by claiming “medical treatment”
stemming from alleged harassment and
claiming depression from post traumatic
stress disorder.
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10. Discovery of Social Media Content
• The court ruled:
– “It is reasonable to expect severe emotional or
mental injury to manifest itself in some SNS
content, and an examination of that content
might reveal whether onset occurred, when,
and the degree of distress. Further, information
that evidences other stressors that could have
produced the alleged emotional distress is also
relevant.”
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11. Social Media is Discoverable
• Sharlatte Coates brought sex harassment claim
against Mystic Blue Cruises Inc. Coates said her
supervisor offered to remove an allegedly false
insubordination charge if she agreed to have sex.
• Employer sought “intimate” social media
conversations by Coates and male employees of the
company.
• Court ruled that they were discoverable.
• Coates v. Mystic Blue Cruises Inc., N.D. Ill., No. 1:11-
cv-01986, 8/9/12.
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12. Even Judges Read Social Media
Purvis v. Commissioner of Social
Security, 2011 WL 741234 (D. N.J. Feb.
23, 2011). Plaintiff claimed asthma as
basis for social security income. Claim
was denied. On Purvis's appeal, the
court noted that "[a]lthough the Court
remands the ALJ's decision for a more
detailed finding, it notes that in the
course of its own research, it discovered
one profile on what is believed to be
Plaintiff's Facebook page where she
appears to be smoking ... If accurately
depicted, Plaintiff's credibility is
justifiably suspect." Id. at *7.
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13. Social Media as Evidence
• California Court upholds verdict of
harassment based on blog postings of
co-workers done on non-government site.
• The employer was aware of the blog and did
not block access to the site.
– Espinoza v. Orange County, CA. (2/9/12).
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14. Social Media as Evidence
• Plaintiff sued for car accident against Defendant and
claims Defendant was drunk. Defendant denies.
• Plaintiff’s lawyer produced printouts of Barnhart's
MySpace page with entries before and after the
collision which included references to regular alcohol
use, her good friend Captain Morgan (rum), and
frequent hangovers.
• The jury found the defendant 95% liable for the
collision and the plaintiffs were awarded $600k.
– Morales, et al. v. Barnhart, Harris County District Court,
157th, Harris County, TX (2011).
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15. Evidence in Kansas
• Held v. Ferrellgas, 2011 WL 3896513, (D.Kan. Aug,
2011)(Melgren)
• Plaintiff sued for employment discrimination under
Title VII of the Civil Rights Act of 1964.
• Court ruled that an employer was entitled to see data
from Plaintiff’s Facebook account and granted
Defendant’s Motion to Compel. Court noted that
Defendant was willing to permit Plaintiff to print the
information off and produce it rather than insist that
Plaintiff disclose the username and password of the
Plaintiff’s Facebook account.
– Note: During his deposition, plaintiff testified that he
could not recall whether he posted anything on his
Facebook page that would be relevant to the case.
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16. Don’t Lie about Facebooking…
• Debord v. Mercy Health System, __F.Supp.2d
__, 2012 WL 941387 (D.Kan. 2012)(Crow)
• Employee was terminated for dishonesty
when she denied twice making Facebook
comments about her boss during work time
that were negative and then admitted it later.
She sued for sexual harassment and argued
that the termination was pretextual.
• Ct. granted summary judgment to employer.
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17. Employer: Is Access to Social Media a
Violation of Privacy? Court: Maybe.
• A registered nurse brought an action against a hospital and its
executives for invasion of privacy. The hospital gained access to
her Facebook postings through a co-worker who was “friends”
with the nurse. Ehling v. Monmouth-Ocean Hospital Service Corp.,
2012 WL 1949668 (D. Jew Jersey, May 30, 2012).
• The hospital moved to dismiss the claim, prompting the Court to
note that “privacy in social networking is an emerging, but
underdeveloped area of case law.”
• It held that she “may have had a reasonable expectation that her
Facebook posting would remain private, considering that she took
active steps to protect [it] from public viewing.”
• Further, it stated that “reasonableness (and offensiveness) are
highly fact-sensitive inquiries,” and therefore are “not properly
resolved on a motion to dismiss.”
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18. Is Social Media Free Speech?
• According to one Court, no.
• A mortuary student at the University of Minnesota sued to appeal
discipline imposed against her for posts on Facebook. Tatro v.
University of Minnesota, 816 N.W.2d 509 (Mn. 2012).
• The Supreme Court of Minnesota was asked to evaluate whether
discipline imposed against Tatro by the school constituted a
violation of her right to free speech under the First Amendment to
the Constitution.
• The Minnesota Supreme Court, in a case of first impression,
rejected her claims finding that Tatro had agreed to certain
Mortuary Science Program Rules, which were more restrictive
than normal student speech restrictions.
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19. Free Speech in Kansas?
• Byrnes v. Johnson Co. Comm. Coll., 2011 WL 166715
(D.Kan. 1/19/2011) (Melgren)
• Nursing student expelled from nursing school
following posts on Facebook of photographs of
placentas taken during training at Olathe Medical
Center. Student had permission to take the photos.
Student sought injunction. Court granted injunction
ordering school to readmit student. Court found that
student had already paid fees but was neither given
credit for classes or refunded sums paid. Court found
that school expelled student not for violating a rule
but for violating “the sense of propriety” of the
School.
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20. Is it Free Speech to “Like” Something?
• According to the ACLU, yes. According to the Court, no.
• The case revolves around six Virginia employees who were fired by
Hampton Sheriff B.J. Roberts after they supported his re-election
opponent in 2009. One worker, Daniel Ray Carter, had “liked” the
Facebook page of Roberts’ opponent.
• Carter argued that to “Like” was the same as free speech and he could
not be fired. The Court disagreed.
• "Liking a Facebook page is insufficient speech to merit constitutional
protection," Judge Raymond A. Jackson wrote in May, 2012, because it
doesn't "involve actual statements.”
• The ACLU has filed an appeal on behalf of Carter to the 4th Circuit Court
of Appeals.
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21. Don’t Assume It Gives You a Win.
• A judge ruled that adult themed posts on a social media page were relevant to a
woman’s sexual harassment claim, but were not yet fatal to her case at the
summary judgment stage.
• This case began with police officer Christina Targonski and her workplace, the
City of Oak Ridge, Tennessee. Targonski claimed she was discriminated against
and retaliated against by the City. During the course of her litigation, it was
revealed that Targonski posted on her Facebook account that she was interested
in "Naked Twister" and other adult themed conduct. Her posts were occurring at
the time she claims the rumors created a hostile work environment.
• The Court found the posts curious, but noted that Targonski called the posts
"jokes" between friends. The Court then found, at the early stage of the case,
that Targonski - if she was to be believed - could proceed with her case.
Targonski v. City of Oak Ridge, Case No. 3:11-CV-269 (E.Dist. of Tenn., July 18,
2012).
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22. Can We Sue For Facebook Loss?
• Court ruled that the loss of a Facebook page
and 19,000 “fans” was not a compensable
loss.
– “Piggy Paint’s alleged business expectancy with
the ‘fans’ of its facebook page is too indefinite to
form the basis of an actual expectation of
business.”
– Lown Companies, LLC, v. Piggy Paint, LLC, 2012
WL 3277188 (W.D. MI, 2012)
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23. Social Media Another Way
Former employee has contacted
20 of the contract workers you
use on behalf of her new
employer and is soliciting their
business. The former employee
has “connected” with 20 of your
clients via Linkedin and is
encouraging them to call her.
• Does this conduct violate the
non-compete agreement?
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24. Yes Virginia, You can sue…
• TekSystems, Inc. v. Hammernik, et al., 2010
WL 1624258 (D. Minn. Mar. 16, 2010).
• The lawsuit alleged that after Hammernik
left TEKsystems in November 2009, she
“communicated” with at least 20
TEKSystems contract employees and
“connected” with about 16 of them using
the LinkedIn professional network.
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25. How it ended…
• The case settled after the Company got a
permanent injunction against the employee.
The lesson learned:
Conduct over Twitter, Facebook
and LinkedIn are increasingly being
used by the Courts and are being
analyzed as if they were spoken or
sent by e-mail, fax or letter. Your
employees should be aware that
policies relating to conduct apply
equally to social media.
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26. Tweeting As a Violation of Contract?
• Rashard Mendenhall v. Hanesbrands, Inc., 856 F.
Supp.2d 717 (N.C., 2012).
• Hanesbrands hired Mendenhall to promote its
Champion line of athletic wear.
• Mendenhall tweeted a controversial comment on the
death of Osama bin laden.
• Hanesbrands fired Mendenhall for violating his Talent
agreement. Mendenhall sued arguing that he didn’t
violate the morals clause and Hanesbrands violated its
good faith and fair dealing obligations.
• Court found that it would not dismiss the case at the
motion to dismiss stage.
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27. So what does this mean?
• Social media is becoming an increasing part
of our daily work lives. Thus, we will see it
becoming more intertwined with how
employees – and former employees –
operate…
• And demonstrate
their idiocy.
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28. SOCIAL MEDIA AND THE
NATIONAL LABOR
RELATIONS BOARD
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29. The New Sheriff in Town…
They are the primary government employment related agency,
which is addressing the rights of employees and employers
regarding social media.
They are getting very aggressive (historically) in taking actions
to increase employee rights. (See the new posting rule)
They are encouraging employees (even non-union employees)
to file unfair labor practice charges related to social media
discipline. 28

30. The NLRB
• Federal Agency headquartered in
Washington, D.C.
• Has a five member governing board, but the
majority is determined by the party in power
– (thus, politics occasionally enters the picture)
• Has the authority to investigate, ajudicate
and sue you to enforce their orders.
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31. So, what can they do, really?
Remedies available to the NLRB if you have
committed an Unfair Labor Practice:
1. Requiring you to cleanse their record of
discipline;
2. Requiring you to reinstate them;
3. Requiring you to pay them backpay;
4. Requiring you to post a notice to employees; and
5. Court Injunctions.
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32. So what is the biggest issue?
• Policies that the NLRB feel are too broad.
– Example: “Employees should not make disparaging
remarks about the company, their supervisor, etc. on
social media websites, blogs or any other form of
electronic media.”
• Drafting tip?
– If you must have a policy addressing comments,
make sure it is limited to trade secrets, confidential
information about the company or customers, and
information that if released would breach
agreements the company has.
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33. You Make the Call #1
Five employees do not like their co-worker. They
believe the co-worker is a slacker and fakes illnesses to
get out of work. They post derogatory messages on
her Facebook page containing obscenities and openly
expressing their negative feelings toward her. The
victim complains. Following an investigation, the five
employees are discharged for harassment under the
company’s zero tolerance policy. Any problem with
the discharges?
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34. You Make the Call #1
Most likely. Recently, an administrative law judge of the Board
held that the five employees were engaging in concerted
protected activity for which they could not be discharged.
The judge held that the Facebook postings were no different
than “water cooler” talk and could not be interfered with. He
held that even though the conversations were not directed to
the employer, because they involved terms and conditions of
employment they were protected.
The judge ordered the employees reinstated. An appeal to the
Board is pending.
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35. You Make the Call #
Employer is a restaurant with an unwritten policy that
waitresses don’t share tips with the bartenders even though
the bartenders help serve food. A bartender discussed the
issue with a co-worker who agreed that it “sucked.” Several
months later in Facebook posts, the bartender complained to a
relative that he was doing waitresses work without the tips.
He called the restaurant’s customers “rednecks” and said he
hoped that they choked on glass as they drove home drunk.
He didn’t discuss the posting with co-workers and none of
them responded. The owner sent a facebook message to the
employee telling him his services were no longer needed. Was
the termination lawful?
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36. You Make the Call #2
According to the NLRB, yes. Although the postings
concerned terms and conditions of work, the
employee did not discuss the posting with co-workers
and none of them responded to the posting. There
were no employee meetings or any attempt to initiate
group action concerning the policy.
The termination was lawful.
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37. POLICY TIPS AND
QUESTIONS WE GET
FROM CLIENTS
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38. Social Media Policies
• What are they?
– A social media policy outlines for employees the
corporate guidelines or principles of
communicating in the online world.
– Do you have any existing communications,
privacy and ethics policies? If so, you may be
half-way there already.

39. Social Media Policies
• Questions to Consider:
– If someone at your offices blogs, tweets or posts
for the company, what happens when they leave
the company?
– Who owns the “friends” or “followers”?
– Can I load up the company’s client list to
LinkedIn?
– What am I permitted to post anonymously?

40. Social Media Policies
• Employees should know that they have no
right to privacy with respect to social
networking.
– “Employer reserves the right to monitor
employee use of social media regardless of
location (i.e. at work on a company computer or
on personal time with a home computer).”

41. Social Media Policies
• Employees should be reminded that
company policies on anti-harassment, ethics
and company loyalty extend to all forms of
communication (including social media) both
inside and outside the workplace.

42. Not there yet
• There is no such thing as a
“Friend” privilege preventing a
Court from ordering someone
to provide a username,
password or details from a
Social Media account where you
have limited your posts to “friends.”
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43. Questions We Get From clients
• Can you use social media for a disciplinary
action for employee calling in sick when they
are partying?
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44. Questions We Get from Clients
• We have a policy which states that internal
communications are not to be disclosed.
Someone in the office posts part of a memo
on Facebook. Can the employee be
disciplined?
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45. Questions We Get From Clients
Can an employer prohibit
an employee from being a
Facebook friend with a
client?
Couldn’t an employee
argue they were friends
before work?

46. Questions We Get From Clients
Our company has a
Facebook page and
Twitter site. How would
you guide us regarding
postings or comments
by employees – even on
their own time?

47. Questions We Get From Clients
If an applicant provides a link to their Facebook
page on their resume and the page contains their
views on litigation and politics, can we look at it
and use it?

48. Questions We Get From Clients
We have had trouble
getting previous
employees to change their
“title and company” on
LinkedIn, i.e., our old CEO
still lists himself as a
“current CEO.” Is there
anything we can do to get
them to change it?
LinkedIn won’t change it.

49. Questions We Get From Clients
Can an employer be liable
for the harassing
Facebook posts of one
employee toward another
if the posts are made off-
duty and off-premises?

50. Questions We Get From Clients
Can you include the
language in a social media
policy that says “all
electronic media currently
in use today and any
other electronic media yet
to be developed” when
addressing what is and is
not acceptable in the
workplace?

51. Questions We Get From Clients
What, if any recourse, does I just created a
a school district or Facebook page called
university have if students “Ms. Johnson is the
worst teacher ever”
post lies about teachers or
administrators on personal
social media accounts?

52. Questions We Get From Clients
Regarding LinkedIn,
can a firm prevent a
former employee from
recommending
someone?

53. Questions We Get From Clients
If an employer pays for the use of the internet but it
is the employees phone, can the employer ask them
not to use social networking?

54. Quick Tip
• Companies should update
their document retention
policy to include social
media activity. The
procedures that the
company is following for
e-mails in terms of storage
and retention periods may
be a good starting point.
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55. MULTI-USE DEVICES IN
THE WORKPLACE
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56. Bring Your Own Device (BYOD)
• Employers are increasingly allowing employees to
bring their devices from home or to purchase their
own devices.
• Some companies believe that this will permit them to
reduce the costs for support of devices. Employees
will have to go back to the store where they bought
the device for support.
• Some programs can save the company money by
providing a stipend to employees rather than buying
new machines every few years.
• This has increased in recent years with the increase of
tablets and particularly the iPad.
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57. Not-so Good Samaritans
• Finders of “lost” smartphones:
– 81% accessed contacts
– 47% accessed cloud-based documents
– 64% accessed social networking sites
– 57% discovered passwords
– 45% discovered the owner’s salary information
– 43% accessed the owner’s on-line banking
Bloomberg Business Week
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58. Things that Make You Go Hmm…
• Can your system differentiate between authorized or
unauthorized devices?
• How much copying of company data is permitted
before it is flagged by the system?
• Does your system engage in virus checking before it
permits a USB drive to be used?
• If an employee copied your trade secrets to a
computer USB drive, could your system track it?
57

59. Nightmare Scenario
• Financial services company is about to start a performance
review with a problem employee. The employee is aware of
the likely bad review but has a secret weapon: His
Blackberry.
• During the review, he records the conversation which
includes the following comments:
– “Those dreads in your hair make you look like a thug.”
– “We’d love you to speak proper English, not the jive you
speak in the office.”
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60. Performance Review
• The employee takes the recording to a lawyer.
• Three weeks later, the employee’s lawyer called and
threatened both to sue the employer and to release the
recording to the media.
• The employer, faced with the negative publicity and a
potential lawsuit, agrees to a large settlement.
The Fiscal Times, July 28, 2011
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61. A quick aside on surfing the net
Gaskell v. University of Kentucky, E.D. Kentucky, Nov. 23,
2010
• Fact #1: The University of Kentucky wanted to hire a
Founding Director for its astronomical observatory.
• Fact #2: The University put together a search committee
which received about 12 applications for the position.
• Fact #3: The most qualified applicant by far was Martin
Gaskell. He was the top candidate until…
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62. Gaskell v. Univ. of Kentucky
• One of the members of the search committee conducted
an internet search for information about Gaskell and
found his professional website which linked to his
personal website which contained an article titled
“Modern Astronomy, the Bible, and Creation.”
• This information was circulated to the entire search
committee.
• From there, the search committee discussed Gaskell’s
religious beliefs with other professors at the University,
with the University Dean and Provost, and with Gaskell’s
previous employer. The search committee also reviewed
Gaskell’s student evaluations for references to his religious
beliefs.
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63. Gaskell v. Univ. of Kentucky
• Shocker #1: Gaskell wasn’t hired.
• Shocker #2: A less qualified person was hired.
• Shocker #3: Gaskell filed a lawsuit for religious
discrimination.
• The University tried to get the case dismissed but lost
because the Court concluded that there was sufficient
evidence to proceed.
• The smoking gun? An email from the chair of the
search committee.
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64. Gaskell v. Univ. of Kentucky
• The email, with the subject line “The Gaskell Affair,” stated:
• It has become clear to me that there is virtually no way
Gaskell will be offered the job despite his qualifications that
stand far above those of any other applicant. Other reasons
will be given for this choice when we meet Tuesday. In the
end, however, the real reason why we will not offer him the
job is because of his religious beliefs in matters that are
unrelated to astronomy or to any of the duties specified for
this position. (For example, the job does not involve outreach
in biology.). . . If Martin were not so superbly qualified, so
breathtakingly above the other applicants in background and
experience, then our decision would be much simpler. We
could easily choose another applicant, and we could content
ourselves with the idea that Martin's religious beliefs played
little role in our decision. However, this is not the case. As it is,
no objective observer could possibly believe that we
excluded Martin on any basis other than religious. . . .
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65. If you are going to screen…
• Create a list of the lawful information the company wants to find
out from the online search and use that list in every search.
• Decide whether the company will screen all applicants for all
positions, or only for certain positions.
• Have a neutral person conduct the online screening, filter out any
protected information about the applicant, and report to the
decision maker only information that lawfully can be considered.
• Consider whether to conduct the online search before or after the
in-person interview.
• Consider whether to provide notice to applicants and whether to
obtain the applicant’s consent before conducting the online
search. Notice and consent is required if using a third party
vendor.
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66. What Does This Mean for You?
• The rise of smartphones and tablets (collectively,
“smartphones”) creates new problems – or
amplifies old problems
– Do you provide your employees with a smartphone?
– If not, are your employees allowed to use their
personal smartphone for business purposes?
– Do you have a smartphone policy?
– What are the risks and liabilities you face today and
how can you be proactive in addressing these
concerns?
65

67. iPod Slurping – What is it?
• “iPod slurping “
• An application exists that can
search corporate networks for files
likely to contain business-critical
data. This app scans and
download files on to an iPod.
• To anyone even looking at a
person doing this, you would see
someone appearing to be listening
to their iPod. The person stealing
the data need not even have
access to a keyboard.
A 20 GB iPod can hold 700,000
documents.
66

68. Top 10 Steps to Reducing Risk
• Limit eligibility of use of multiple devices (or access
with a personal device) to specific categories of
employees.
• Require that your information technology department
be permitted to set security on any device that
accesses the system. Employees should be prevented
from disabling or modifying the security settings.
• Restrict the types of corporate resources that can be
accessed (e.g. only e-mail, calendar and contacts)
67

69. Top 10 Steps (continued)
• Restrict storage of corporate information on dual use
devices (e.g. e-mail, e-mail attachments, calendar
entries and contact cards)
• Get a signed acknowledgement that dual use devices
are subject to all corporate policies.
• Warn employees that dual use devices will be
monitored when connected to the corporate network.
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70. Top 10 Steps (continued)
• Remind employees that dual use devices (and
passwords) must be provided for inspection
upon reasonable request for company
investigations and to implement a litigation
hold.
• Obtain employee’s agreement to remote
wipe in the event of loss, theft or termination
of employment.
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71. Top 10 Steps (continued)
• Require employees to immediately report
lost or stolen devices.
• Add review of dual use devices to exit
interview procedures.
– Bonus step: Make sure employees aren’t
bringing it with them from a prior job when they
start working for you.
This ought to be in an offer letter, company policy or
employee agreement.
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72. Smartphone Policy Checklist
• Who is covered?
• Define types of devices covered
• List jobs/employees who are entitled to employer-
provided smartphone
• Set procedure for issuance of smartphones
• Set procedure for employee requests for smartphones
• Who pays?
– What is paid? (Data plans/repairs/replacements)
– Who pays for “apps” or downloads? What if “apps” are
used for business purposes?
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73. Mo. Computer Tampering Act
• § 569.095, et seq.
– A person violates this Act by:
• Modifying or destroying computer data
• Disclosing or taking data residing on a computer
• Disclosing passwords
• Accessing a computer to intentionally examine information
about another person
– Similar statutes apply to computer equipment and
tampering with computer users
– Criminal statute
– Civil penalties allowed under § 537.525
72

74. Quick Question
• Q. Can we require an employee to give us access to their online
social media accounts?
• A. Two opinions have said this constitutes a violation of the
Stored Communications Act.
• However, Congress has introduced the Password Protection Act of
2012. It makes it illegal to compel or coerce access to any online
information on the internet if it is secured from general access. It
appears that it applies to photo sites.
• Maryland and Illinois have passed statutes to stop this. California
appears next to enact one.
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75. THANK YOU FOR ATTENDING!
• Any Questions?
David Kight, Esq.
Spencer Fane Britt & Browne, LLP
@davekight
@socmedialawyers
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