High Court Looked To for Clarity on New Technologies in Workplace
Employers and their attorneys grappling with employees’ use of digital communications, including social media, are looking to a coming Supreme Court decision for some guidance, lawyers said Thursday. The court has accepted for review a 2008 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that employers can’t monitor employees’ text messaging, Heidi Larson said on a webcast by her law firm, Squire Sanders. The appeals court ruled in Quon v. Arch Wireless that the federal Stored Communications Act barred the carrier from releasing, without the consent of a police officer fired for sexting, information about his text messages, she said. “This case could be very important” in setting employers’ rights, Larson said.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
One question that the Quon decision may shed light on is whether employees’ electronic messages to their lawyers using the employees’ devices or e-mail accounts are protected by the attorney-client privilege, said Emmet O'Hanlon, another lawyer with the firm. A district judge in Idaho ruled in November in Alamar Ranch v. Boise that the privilege didn’t apply to messages using an employer’s computer and e-mail, he said.
Another open question is whether an employer can install on its equipment a keystroke logger to monitor employees’ blog and other communications beyond the business, Larson said. A federal judge in the Northern District of California in May allowed Brahmana v. Lembo to proceed over challenge on an allegation that an employer had used a keystroke logger to reveal the plaintiff employee’s username and password for an external e-mail account, she said.
Social networking raises a wide array of complications for employers, O'Hanlon said. Users’ pages provide all kinds of information that can’t legally be used in hiring, he said. Facebook asks for age and marital status, for instance, and a user’s disability may be evident, O'Hanlon said. “I would make sure all of the interviewers don’t have this information.” Companies can face claims of wage-and-hour law violations over nighttime tweeting, along with copyright infringement, defamation, invasion of privacy, retaliation and wrongful termination, harassment and discrimination, he said.
The problems can just get stranger from there, O'Hanlon said. Interviews of avatars on Second Life started in connection with virtual jobs in the network, but now they're being done for actual positions, O'Hanlon said. Apart from anything else, this can confound affirmative-action reporting, he said. “It kind of raises interesting issues if the person you're interviewing happens to be a bunny on Second Life."
The federal Computer Fraud and Abuse Act creates liability for some impersonations, Larson said. An appeals court upheld compensatory and punitive damages for employees hired by Houston’s restaurants as a result of a manager’s friending them on MySpace under an assumed name and discovering comments critical of the employer, she said.
Social-networking rulings that may affect employers and employees are coming up in other contexts, Larson said. A Texas mother lost a challenge to the removal of a child, in a state Court of Appeals’ September ruling in Mann v. Department of Family and Protective Services. In that case a social-services agency had based its decision in part on captions on her public MySpace page referring to her drinking and being drunk, she said. And in April, a federal magistrate in Colorado, ruling in Ledbetter v. Wal-Mart, denied a protective order to keep the company from acquiring posts to Facebook and MySpace under privacy settings, because the company had offered evidence of their relevance to the case, O'Hanlon said.