The Times Are Still a Changin’: Technology’s Continued Impact on Labor and Employment Law
Today, technology constantly impacts our lives. The workplace is no exception. For many employers, technology is a key business tool. For most employees, using electronic devices and social media is a daily ritual.2 This article surveys the areas in which technology has impacted labor and employment law in recent years.
Technology and the National Labor Relations Act
Employers, whether or not they have a unionized workforce, can violate the National Labor Relations Act, 29 U.S.C. §157 (NLRA), by maintaining overbroad technology-related policies. Section 7 of the National Labor Relations Act, 29 U.S.C. §157, protects employees’ right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” whether they are a member of a union or not. Protected concerted activities involve employees joining in concert to affect wages, hours, and other terms and conditions of employment.
Employers’ social media policies frequently run afoul of the NLRA. According to the National Labor Relations Board (NLRB), social media policies are unlawful when they interfere with employees’ §7 rights. The NLRB has released several recent memoranda explaining that an employer violates the NLRA by implementing policies that “would reasonably tend to chill employees in the exercise of their [§]7 rights.”3 In March 2015, the NLRB released a memorandum concerning employee handbooks.4 Among other things, the memorandum identifies specific handbook provisions concerning social media, which the board deems unlawful,5 including the seemingly innocuous provisions: “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the employer’s] business operation or reputation” and “[you may not e]mail, post, comment or blog anonymously. You may think it is anonymous, but is most likely traceable to you and the [c]ompany.”6 The board, has, however, approved of some more narrowed social media policies, including: “Do not make negative comments about our customers in any social media” and “[u]se of social media on [c]ompany equipment during working time is permitted if your use is for legitimate, preapproved [c]ompany business.”7
Additionally, several recent cases reflect the NLRB’s broad position on employees’ rights under the NLRA in connection with social media.8 Notwithstanding the broad scope of protection the NLRB has afforded social media, the fact remains that other cases have previously found a handful of circumstances in which social media speech was unprotected.9
Technology and Workplace Investigations
Employers regularly use technology to conduct workplace investigations. When investigating prospective employees through social media, employers generally may rely on publicly available information posted by the applicant on a social media website; however, employers must keep in mind that the information posted on social media websites is not always accurate. Conducting such investigations is not without some risk. For instance, accessing information through social media poses the risk of stumbling upon a person’s legally protected characteristics and could lead to the discovery of information regarding an applicant that may be unlawful to consider during the hiring process.10 Should employers conduct social media investigations, it is important that they retain the results of their search, especially if a candidate is disqualified from employment as a result of his or her online postings or social media behavior.11
There has also been a trend nationwide to curb employers’ access to employees’ and prospective employees’ social media accounts. Indeed, 18 states now restrict employers’ abilities to demand that employees and/or applicants disclose means for accessing their personal social media accounts (i.e., usernames and passwords).12 This trend has recently gained momentum. States began enacting such laws in 2012 and, in 2014 alone, five states (Louisiana, Oklahoma, Rhode Island, Tennessee, and Wisconsin) enacted them.13 The statutes provide a variety of protection to employees with respect to their social media accounts.
Technology and Harassment/Retaliation/Discrimination Claims
In the modern workplace, cell phones and other digital devices connect employees to each other constantly. Such added connectivity allows for greater employee engagement, but it also creates opportunities for harassment and blurs boundaries of appropriate conduct. Employers must keep in mind that governmental agencies and courts have viewed harassment via social media and digital devices in the same manner as they view in-person harassment. Even when employees post harassing comments about coworkers outside the workplace, employers may be liable for allowing a hostile work environment if they were aware of the comments or if the employee posting the comments used devices or accounts provided by the employer. Indeed, the EEOC recently explained that workplace harassment is alleged in roughly 30 percent of all EEOC charges, and that the ease of posting and responding to messages and images through social media has spawned employee complaints of harassment.14
Recent cases highlight the seriousness of employee harassment through social media. For example, in Espinoza v. County of Orange, No. G043067, 2012 WL 420149 (Cal. App. 2012), the California Court of Appeals upheld a $1.6 million verdict against an employer when the plaintiff was harassed by co-workers on a blog because the plaintiff reported the harassment to his supervisor, and it was not addressed. Additionally, in August 2012, the EEOC reached a $2.3 million settlement with national retailer Fry’s Electronics in a case involving an assistant store manager sending frequent sexually charged text messages to a 20-year-old sales associate.15
Technology and Wage/Hour Claims
Employees’ use of technology, including cell phones and tablets, also presents the potential for wage and hour violations under the Fair Labor Standards Act, 29 U.S.C. §201 et seq., and other applicable wage laws. As an example, it is very common for office staff to work a set schedule, clocking in at 9:00 a.m. and clocking out at 5:00 p.m. Emails and calls, however, do not stop at 5:00 p.m. In fact, employees frequently review and respond to emails and calls they receive outside of their scheduled work hours. Although employers are likely to argue that such “work” involves infrequent and insignificant periods of time (i.e., de minimus periods of time) and is, thus, not compensable, depending on the amount of time such employees expend on reviewing and responding to those emails and calls, such time could be compensable. To avoid some of the risks posed by employees working off-the-clock through the use of portable devices, employers should ensure that they maintain policies prohibiting employees from working hours outside of their assigned work schedule without authorization and ensure that such policies are enforced.
Technology and Unemployment Claims
In Florida, employees’ use of technology may also impact their eligibility to receive unemployment compensationbenefits. On May 2, 2014, the Florida Reemployment Assistance Appeals Commission (RAAC) issued an order addressing whether an employee’s profane postings on Facebook concerning her discontent with her job and employer may constitute misconduct so as to disqualify that employee from receipt of benefits.16 As explained in the order, in the absence of a social media or other applicable policy prohibiting such conduct, unemployment appeals referees must consider various factors to determine whether an employee’s social media actions amount to misconduct (in the form of a conscious disregard of an employer’s interest).17 Such factors include, inter alia, 1) the dates and locations of the postings; 2) the specific statements made and language used in the postings; 3) whether the statements were opinions or defamatory in nature; 4) the purpose of the posting; and 5) whether the claimant had been warned against such actions.18 The order further provides that the unemployment referee must determine what harm the employer experienced (or reasonably could be expected to experience) as a result of the posting, including 1) whether the employer was identified in the posting; 2) the potential audience for the posting; 3) how often the claimant posted negative comments about the employer; 4) how the employer became aware of the posting; 5) whether the posting disrupted or caused harm to the employer’s business activity; and 6) whether the posting might be “protected concerted activity” under the NLRA.19
Public Employees’ Protections Under the First and Fourth Amendments
Many public employees have relied on the First and Fourth amendments to secure protection in their use of technology, particularly social media. For example, the First Amendment can and has been applied to cover public employee speech in the social media context.20 Not all First Amendment claims, however, have met with success.21 Furthermore, the protection that the First Amendment provides public employees has become somewhat mired in controversy since the decision in Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013), in which the Fourth Circuit Court of Appeals held that merely “liking” political content on Facebook constituted sufficient speech to merit constitutional protection.
In addition, while it has been well established that the Fourth Amendment protects public employees from unreasonable searches, it is unclear how such protections apply to social media. Indeed, Twitter privacy has been the subject of Fourth Amendment litigation in recent years. For example, in one recent case involving a student, Fourth Amendment protection was denied based on a lack of any reasonable privacy expectation.22
Employees’ Protections Under the Electronic Communications Privacy Act/Stored Communications Act
The Electronic Communications Privacy Act (ECPA), 18 U.S.C.A. §2510, and Stored Communications Act (SCA), 18 U.S.C. §§2701-2712, also provide protection to employees which, together, prohibit the intentional access of stored communications without, or in excess of, authorization. Cases interpreting the application of these statutes in the context of social media are becoming more prevalent as the court systems catch up to the use of different technologies by society and in the workplace.23
Technology and Discovery Issues in Employment Litigation
There has been recent litigation over access to social media accounts through discovery. Social media material is generally discoverable when the material is relevant to a claim or defense, and discovery of the same is not limited for reasons of oppression, embarrassment, and the like. Indeed, the employment litigation in this area continues to yield a number of cases permitting social media discovery.24 As courts are becoming more attuned to the nuances of social media accounts, however, they are requiring that requesting parties hone their requests based on relevance.25
Florida has been no stranger to social media discovery disputes. Indeed, two recent Florida appellate decisions have directly addressed discovery requests for social media documents.26 In Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014), the court denied the defendant’s request for Facebook postings made by plaintiff as overbroad, while the court in Nucci v. Target, No. 4D14-138, 2015 WL 71726 (Fla. 4th DCA 2015), permitted the defendant to inspect the plaintiff’s Facebook page because the plaintiff placed her physical and mental condition at issue and because social media users have an expectation that their personal information will be shared with others. Although Root and Nucci did not involve employment claims, their holdings will impact employment cases, which frequently involve requests for social media-related documents.
Litigants involved in employment lawsuits should also be sensitive to the impact of “bring your own device” (BYOD) policies on discovery. BYOD policies implicate numerous concerns, including issues surrounding lost or stolen devices, confidentiality information contained on employee-owned devices, and the protection of company trade secret/confidential information contained on employee-owned devices. It is not yet known how BYOD policies will affect e-discovery. At least one court addressing the issue denied a plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones because of a lack of any showing that the employer had any legal right to obtain the text messages.27 The outcome might have been different if the employer maintained a BYOD policy.
To the extent that parties attempt to use social media postings or comments as evidence to support or refute employment claims, they must consider evidentiary issues, including authentication and hearsay issues, surrounding such evidence.28
Technology and Settlement Agreements in Employment Cases
Litigants must also be cognizant of how technology may impact settlements. The recent case of Gulliver Schools, Inc. v. Snay, 137 So. 3d 1045 (Fla. 3d DCA 2014), is instructive. In Gulliver, a private school’s headmaster brought claims against the school for age discrimination and retaliation after his contract was not renewed. The school and headmaster eventually entered into a settlement agreement that included a detailed confidentiality provision. Four days after the parties signed the settlement agreement, the headmaster’s daughter posted a Facebook comment revealing the details of the settlement. The appellate court held that the daughter’s actions violated the settlement agreement and provided the school adequate grounds not to pay the headmaster.29
Technology has caused, and continues to cause, many legal issues in the employment law arena. The sampling of topics and cases discussed herein provide insight into some of the most salient issues employers and employees face. Litigants must be cognizant of these issues and topics and be on the lookout for new developments in this evolving area of the law.
1 In 2012, this author opined that times were “a changin’” due to the evolution of technology. As discussed below, that change has evolved and continues to impact the law, particularly labor and employment law. See Gregory Hearing & Brian Ussery, The Times They Are a Changin’: The Impact of Technology and Social Media on the Public Workplace, Part I, 86 Fla. B. J. 3 (2012); see also Gregory Hearing & Brian Ussery, The Times They Are a Changin’: The Impact of Technology and Social Media on the Public Workplace, Part II, 86 Fla. B. J. 4 (2012).
2 Indeed, a recent survey revealed that 72 percent of workers access social media on the job at least one time each day, a majority of which access social media several times per day, while 28 percent of employees spend at least an hour on social networking sites each day. See Ethics Resource Center, National Business Ethics Survey of Social Networkers: New Risks and Opportunities at Work 1, 8, 20 (2013), available at https://www.ibe.org.uk/userassets/surveys/erc_ethics_and_social_networking.pdf; see also Julie A. Totten & Melissa C. Hammock, Personal Electronic Devices in the Workplace: Balancing Interests in a BYOD World, 30 A.B.A. J. Lab. & Emp. L. 1 (2014).
3 The NLRB’s memoranda can be located at http://www.nlrb.gov/.
4 See Memorandum from the NLRB Office of Gen. Counsel (OM 15-04) (Mar. 18, 2015).
8 See, e.g., Triple Play Sports Bar, 361 NLRB No. 31 (Aug. 22, 2014) (holding, inter alia, that Triple Play violated the NLRA by terminating employees due to their participation in a profanity-laced Facebook status discussion criticizing their employer).
9 See, e.g., Richmond District Neighborhood Center et al., 361 N.L.R.B. 74, 2014 WL 5465462 (Oct. 28, 2014) (finding that employees’ Facebook comments advocating insubordinate acts, such as “Let’s f**k it up. I would hate to be the person takin your old job,” were not protected under the NLRA); Landry’s Inc., No. 32-CA-118213 (N.L.R.B. A.L.J. June 26, 2014) (holding that a handbook policy urging employees not to post information regarding the company or other employees which could lead to morale issues did not violate the NLRA).
10 Such issues were specifically discussed during a Mar. 12, 2014, hearing held by the EEOC concerning employers’ use of social media. See U.S. Equal Employment Opportunity Commission, Social Media Is Part of Today’s Workplace but its Use May Raise Employment Discrimination Concerns, available at http://www.eeoc.gov/eeoc/newsroom/release/3-12-14.cfm.
11 See Butler v. Edwards-Brown, No. 13-1378, 2014 WL 1776035 (E.D. Mich. May 5, 2014) (denying summary judgment for defendant in a failure to hire case, in part, due to the absence of the exact text that the plaintiff posted on her Facebook account).
12 See Bryan Knedler & William Welkowitz, States Continue to Protect Workers’ Social Media Privacy in 2014, Bloomberg BNA (Feb. 10, 2015), available at http://www.bna.com/states-continue-protect-n17179922967/.
13 Id. Notably, in 2014, the Florida Senate attempted to pass a social media privacy statute, however, the bill died in committee. See Florida Senate, CS/CS/SB 198: Social Media Privacy, available at https://www.flsenate.gov/Session/Bill/2014/0198.
14 See EEOC Press Release, Workplace Harassment Still a Major Problem Experts Tell EEOC at Meeting (Jan. 14, 2015), available at http://www.eeoc.gov/eeoc/newsroom/release/1-14-15.cfm.
15 See EEOC Press Release, Fry’s Electronics Pays $2.3 Million to Settle EEOC Sexual Harassment and Retaliation Lawsuit (Aug. 30, 2012), available at http://www.eeoc.gov/eeoc/newsroom/release/8-30-12.cfm.
16 See R.A.A.C. Order No. 13-06735 (May 2, 2014), available at http://www.floridajobs.org/finalorders/raac_finalorders/13-06735.pdf.
17 Id. Pursuant to Fla. Stat. §443.036(30)(a), misconduct includes conduct “demonstrating a conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.”
20 See, e.g., Velazquez v. Autonomous Municipality of Carolina, et al., No. 11-1586, 2012 WL 6552789 at *9 (D. P.R. Dec. 14, 2012) (holding that the plaintiff stated a First Amendment retaliation claim based on Facebook comments criticizing her employer).
21 See, e.g., Yoder v. University of Louisville, No. 3:09-CV-00205, 2012 WL 1078819 (W.D. Ky. Mar. 30, 2012) (finding that a nursing student’s First Amendment claim failed when the student posted patient information on the student’s MySpace page in violation of the school’s confidentiality agreement).
22 See Roasio v. Clark County School District, 2013 WL 3679375 at *5 (D. Nev. 2013).
23 See, e.g, Rodriguez v. Widener University, No. 13-1336, 2013 WL 3009736 (E.D. PA 2013) (declining to dismiss a claim brought under the ECPA and SCA based on an employer’s allegedly unlawful access to the plaintiff’s Facebook account).
24 See, e.g., EEOC v. The Original Honeybaked Ham Company of Georgia, Inc.,No. 11-cv-02560, 2012 WL 5430974 at *2-3 (D. Col. 2012) (establishing a special master process to facilitate the production and inspection of Facebook material); Glazer v. Fireman’s Fund Ins. Co., No. 11Civ.4374, 2012 WL 1197167 (S.D.N.Y. Apr. 5, 2012) (ordering production of social media material).
25 See, e.g., Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (noting that social media content is not protected by any right of privacy, but that this principle does not give defendants the right to serve overbroad discovery requests).
26 See Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014); Nucci v. Target, No. 4D14-138, 2015 WL 71726 (Fla. 4th DCA 2015).
27 See Cotton v. Costco Wholesale Corp., No. 12-2731, 2013 WL 3819974 at *6 (D. Kan. July 24, 2013).
28 See In re Carrsow-Franklin, 456 B.R. 753, 756-57 (Bankr. D. S.C. 2011) (explaining that blogs are not self-authenticating and excluding blog evidence due to failure to present authentication testimony); see also Miles v. Raycom Media, Inc., No. 1:09cv713-LG-RHW, 2010 WL 4791764 at *3 n.1 (S.D. Miss. 2010) (holding that unsworn statements made on Facebook page by nonparties constituted inadmissible hearsay under FRE 801).
29 Gulliver, 137 So. 3d at 1048.
Jeffery L. Patenaude is an associate with Thompson, Sizemore, Gonzalez & Hearing, P.A., where he practices management side labor and employment law. He received his undergraduate degree in political science and psychology, magna cum laude, from The University of the South in 2006, and his law degree, magna cum laude, from the Florida State University College of Law in 2009. He is a member of The Florida Bar, the Hillsborough County Bar Association, and a graduate of the Hillsborough County Bar Association Leadership Institute.
Gregory A. Hearing is managing partner of the management labor and employment law firm of Thompson, Sizemore, Gonzalez & Hearing, P.A. He has practiced management labor and employment law his entire career. He is a graduate of the University of the South where he graduated, magna cum laude, in 1986 and currently serves on its board of trustees. He received his law degree from the Florida State University College of Law, cum laude, in 1989, where he served on the Florida State University Law Review. He is board certified in labor and employment law, civil trial, and education law.
This column is submitted on behalf of the Labor and Employment Law Section, Frank E. Brown, chair, and Robert Eschenfelder, editor.