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

Web 2.0: Hiring & Firing Web 2.0: Hiring & Firing Decisions Based on Social Decisions Based on Social Media Postings Media Postings September 29, 2010 September 29, 2010 Moderator: Julie Moderator: Julie Gromer Gromer Director of Webinars Webinars, , Director of LJN’ ’s s Web Audio Conference Division Web Audio Conference Division LJN jgromer@alm.com jgromer@alm .com 1

Larry Besnoff Besnoff, , Esquire Esquire Larry Larry Besnoff is Co-Chair of the Labor Relations and Employment Law Department at Obermayer Rebmann Maxwell & Hippel LLP. He clerked in the United States District Court for the Eastern District of Pennsylvania and then served as a Senior Trial Attorney at the U.S. Equal Employment Opportunity Commission’s Philadelphia District Office. Mr. Besnoff has litigated cases under Title VII, the EPA, the ADA, the FMLA and the ADEA, including handling matters involving public access, assistive listening devices in movie theaters, changes to building structures, and removing allergens such as smoke and fumes in the workplace. He has defended EEO cases filed with various state and local agencies with unique issues. One case involved a Wiccan witch who wanted the right to proselytize youth. Another case involved a person with a serious stutter who wanted to be a 911 dispatcher. Mr. Besnoff received his B.S. in Humanities and Social Sciences from Drexel University and his J.D. from the Temple University School of Law, where he served as President of the Evening Division. He has lectured extensively on EEO topics, most recently on the increased use of WEB 2.0 by both employees and employers. 2

Skeletons in Cyberspace Skeletons in Cyberspace 3

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Corman Corman v. UCG v. UCG  Maryland company hires Ohio Maryland company hires Ohio  applicant from Monster.com. applicant from Monster.com.  Months later, Corman re-posts his Months later, Corman re-posts his  resume on Monster.com and resume on Monster.com and wants to work only in Ohio. wants to work only in Ohio.  Corman fired for Corman fired for “ “cause cause” ”. .  7

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Corman v. UCG Corman v. UCG  Corman argued that posting a Corman argued that posting a  resume on-line was not “ “cause cause” ” resume on-line was not since it violated Maryland public since it violated Maryland public policy and hindered employment policy and hindered employment mobility. mobility. 9

Corman v. UCG v. UCG Corman  Corman argued that he was not Corman argued that he was not  given advance notice in contract given advance notice in contract that posting a resume was that posting a resume was grounds for “ “cause cause” ”. . grounds for 10

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LeDuc v. v. Roman Roman LeDuc  Use Facebook as a shield. Use Facebook as a shield.   Loss of enjoyment of life. Loss of enjoyment of life.   Plaintiff talks about his fishing Plaintiff talks about his fishing  expedition. expedition.  Admissible as evidence. Admissible as evidence.  15

Pretext Pretext  Phila Phila Bar Association advisory Bar Association advisory  opinion. opinion.  Not ethical to secretly send a third Not ethical to secretly send a third  party to “ “friend friend” ” a Facebook user a Facebook user party to to obtain information to impeach to obtain information to impeach testimony. testimony. 16

Attorney Client Exception Attorney Client Exception  Stengart Stengart v. Loving Care Agency, Inc., v. Loving Care Agency, Inc., 408 408  N.J. Super. 54 (N.J. App. Div.), affirmed N.J. Super. 54 (N.J. App. Div.), affirmed 2010 N.J. LEXIS 241 (2010) 2010 N.J. LEXIS 241 (2010)  Handbook policy clearly states e-mail Handbook policy clearly states e-mail  messages company property and not messages company property and not personal or private to employee personal or private to employee  Plaintiff assisted in creating the policy Plaintiff assisted in creating the policy   Occasional personal use allowed Occasional personal use allowed  17

Attorney Client Exception Attorney Client Exception  Stengart Stengart sent several e-mails to her lawyer sent several e-mails to her lawyer   From company-provided laptop From company-provided laptop   Over Company Over Company’ ’s internet s internet   Messages on personal Yahoo e-mail Messages on personal Yahoo e-mail  account account  Yahoo password not stored on company Yahoo password not stored on company  laptop laptop 18

Attorney Client Exception Attorney Client Exception  Stengart Stengart not know that Company stored a not know that Company stored a  copy of each web page in a cache folder copy of each web page in a cache folder  Stengart Stengart’ ’s s e-mails actually stored on e-mails actually stored on  company’ ’s server s server company 19

Attorney Client Exception Attorney Client Exception  Resignation and lawsuit under NJLAD Resignation and lawsuit under NJLAD   Employer discovers e-mails to and from Employer discovers e-mails to and from  employee attorney about suing employer employee attorney about suing employer  Employer plans to use the Employer plans to use the  communications in defense strategy communications in defense strategy  Trial court found employee waived Trial court found employee waived  attorney client privilege by using company attorney client privilege by using company equipment, time and resources equipment, time and resources 20

Attorney Client Exception Attorney Client Exception  App. Div. reversed App. Div. reversed   Violation of NJ Rule Professional Conduct Violation of NJ Rule Professional Conduct  4.4(b) 4.4(b)  Should have ceased reading e-mail upon Should have ceased reading e-mail upon  discovery discovery 21

Attorney Client Exception Attorney Client Exception  NJ Supreme Court agrees NJ Supreme Court agrees “ “Stengart Stengart could could  reasonably expect that e-mail reasonably expect that e-mail communications with her lawyer through communications with her lawyer through her personal, password-protected, web- her personal, password-protected, web- based e-mail account would remain based e-mail account would remain private, and that sending and receiving private, and that sending and receiving them using a company laptop did not them using a company laptop did not eliminate the attorney-client privilege… …. .” ” eliminate the attorney-client privilege 22

What Can We Learn? What Can We Learn?  If employers allow reasonable personal If employers allow reasonable personal  use of company systems, absent explicit use of company systems, absent explicit directions to the contrary, employees have directions to the contrary, employees have a reasonable expectation of privacy to the a reasonable expectation of privacy to the content and communications of personal, content and communications of personal, password-protected sites password-protected sites 23

What Can We Learn? What Can We Learn?  The same rule would also apply to social The same rule would also apply to social  networking sites with password-protected networking sites with password-protected entry entry  Allowing the computer to Allowing the computer to “ “remember me remember me” ”  for logins and passwords on company for logins and passwords on company equipment may forfeit the reasonable equipment may forfeit the reasonable expectation of privacy expectation of privacy  If attorney/client can If attorney/client can’ ’t be waived, what t be waived, what’ ’s s  next? next? 24

What Can We Learn? What Can We Learn?  Court notes that employer allowed Court notes that employer allowed  occasional personal use occasional personal use  Does this negate all the other caveats? Does this negate all the other caveats?   What if employee violates company policy What if employee violates company policy  and uses company computer to access his and uses company computer to access his personal bank account statement? personal bank account statement? 25

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Dooced Dooced  “ “Her Wretchedness Her Wretchedness” ”. .   “ “The most insane person you The most insane person you  have ever witnessed outside of have ever witnessed outside of ‘Dateline NBC Dateline NBC’” ’”. . ‘  On Armstrong On Armstrong’ ’s own time, own s own time, own  computer, outside of work. computer, outside of work. 28

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Brooklyn Nanny Brooklyn Nanny  Blog about sex life. Blog about sex life.   Detailed descriptions of work life. Detailed descriptions of work life.   Employer Employer’ ’s life broadcast s life broadcast – –  betrayal of confidence. betrayal of confidence.  More time blogging than watching More time blogging than watching  kids? kids? 30

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