Two Bar Associations Give Employers Another Reason To Adopt Social Media Guidelines

Posted by Elizabeth Arce on May 31, 2011

Social networking websites have become a treasure trove for lawyers looking for damaging information that could be used to impeach an opposing party or any adverse witnesses in a lawsuit.  As a result, the New York Bar Association’s Committee on Professional Ethics looked into the following question:

May a lawyer view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not ‘friend’ the party and instead relies on public pages posted by the party that are accessible to all members in the network?

Gavel3.jpgThe New York Bar concluded that a lawyer may ethically access and view the public social network pages of another party in a pending lawsuit to search for potential impeachment material.  In reaching its conclusion, the New York Bar analogized accessing information on Facebook or MySpace to obtaining information from other publicly accessible online or print media, or through subscription services such as Nexis.  The New York Bar also distinguished its opinion from one issued by the Philadelphia Bar Association’s Professional Guidance Committee which looked at whether a lawyer may ethically “friend” an unrepresented adverse witness in a lawsuit to obtain potential impeachment information.

In the Philadelphia Bar’s opinion, a lawyer proposed asking a third party to “friend” the witness in order gain access to the witness’ private Facebook and MySpace pages by providing truthful information about him or herself.  However, the third party would conceal his or her relationship with the lawyer and the real purpose for “friending” the witness (to obtain impeachment information).  The Philadelphia Bar concluded that it would be unethical for the lawyer to engage in this sort of conduct under the Pennsylvania Rules of Professional Conduct which prohibits lawyers from making false statements and engaging in dishonest, fraudulent or deceitful conduct.  The New York Bar also reached the same conclusion.

The California State Bar has not yet issued an opinion on the propriety of lawyers accessing social networking websites.  However, it is likely the California Bar will agree with the opinions of the New York and Philadelphia Bars.  Further, California courts are already facing motions to exclude evidence found on the Internet.  Since it appears lawyers will continue to have the ability to scour social medial sources for impeachment material, the best advice is for employers to develop social media guidelines.  Employers should also provide training to all employees on the impact their social media activities may have on potential or pending litigation.

LCW provides sample social media policies and guidelines in our Privacy Issues in the Workplace workbook for public agencies.  Additionally, LCW’s “Caught in the Net” provides training on social media issues.

Overtime Pay For Off-Duty Cell Phone Calls And Text Messages? Maybe!

Posted by Jeffrey C. Freedman on May 24, 2011

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The cell phone, in particular the so-called “smartphones” (e.g. iPhones, Blackberrys, Android phones) are amazing.  These devices allow us to be in contact no matter where we are on a 24/7 basis.  Some employers issue these devices to their employees both as a benefit to the employee but primarily as a benefit to the employer for the same reason: it allows contact at all hours of the day and night when necessary.

But when employees use these devices for work-related phone calls, text messages and emails while off-duty, should they be paid for this time?  This issue may be resolved in a case currently pending in the federal court in Illinois entitled Allen v. City of Chicago.

We normally do not report on a case pending in a trial court and certainly not about the ruling on a motion, which did not result in a judgment.  But this case seems of such particular significance that it merits a report.  Indeed, a number of other blogs have already commented on this case.

Here’s the situation.  The Chicago Police Department issued Blackberrys to a number of its officers including a Sergeant named Jeffrey Allen.  Sergeant Allen claims that he and other officers are required to use their Blackberrys to perform off-duty work including responding to telephone calls, emails, voicemails, and text messages.  Allen filed a purported class action lawsuit against the City alleging that he and other officers are entitled to overtime pay under the U.S. Fair Labor Standards Act for these phone based off-duty activities.  The City moved to dismiss the action but the trial court denied the motion and the matter will now proceed forward towards trial.

How this case will be resolved remains to be seen.  However, the novelty of this claim and the wide publicity the decision has received, may well result in a new cottage industry of FLSA litigation.

In order to minimize the likelihood of being the subject of such a case, the following steps are recommended:

  1. If possible, limit issuance of such devices to employees who are truly FLSA exempt and thus not entitled to overtime pay.
  2. If such phones must be issued to non-exempt hourly employees because of business necessity or operational demands, require employees to keep detailed time records of each phone related activity together with date, time of day, content description and actual duration of the call, email, text message, etc.  Be sure that the billings received from the service provider, such as AT&T, Verizon, etc., are maintained and reviewed and checked against the employee’s time reports for confirmation.  Keep in mind that FLSA requires the employer, not the employee, to keep accurate time records.  However, the employer can delegate that assignment to the employee as an additional part of their job.  Indeed, employees could be terminated for failure to keep accurate time records although they still must be paid because the employer receives the benefit of their services.
  3. If such phones must be issued to non-exempt hourly employees, limit their issuance to those who really do have a bona fide job related necessity to have them.  That is, only give phones to those hourly employees when their jobs truly require them to be available on an instantaneous basis even while off-duty.
  4. Some employees may need to have these phones while working but not while off-duty.  In these cases, issue a written policy prohibiting these employees from using their devices off-duty or institute a requirement that they reimburse the employer for personal use of the devices.  Another possibility is to require the employee to leave the phone at their job site, whereby they pick it up at the beginning of their work shift and leave it at the end.

The best advice is to develop a comprehensive written policy on the use of these devices so that employees are on clear notice of their entitlements and of their employer’s expectations of them.

LCW provides sample forms of Sample Electronic Communications Resources Policy and Authorization for Release of Information by Electronic Communications Service Provider in our Privacy Issues in the Workplace workbook for public agencies.  Additionally, LCW discusses the FLSA and strategies for complying with it in its Public Sector FLSA Compliance Guide workbook.

Keep visiting this website, as we shall update you on the progress of this case as it moves through the court system.

Photo Credit: Verizon Logo by methodshop.com, on Flickr

Details Do Count; FEHA Statute Of Limitations To Sue Begins When "Right To Sue" Letter Is Issued, Not When It Is Received

Posted by Jeffrey C. Freedman on May 17, 2011

Gavel2.jpgLawyers are sometimes faulted for being overly detailed and “picky.”  Maybe so, but sometimes attention to detail can be important!  A good example is the recent court of appeal decision entitled Hall v. Goodwill Industries of Southern California, decided this past March 16, 2011.  In that case, Hall was terminated from his job at Goodwill and filed a complaint with the Department of Fair Employment and Housing (DFEH) which issued a “right to sue” letter on December 24, 2004.  Mr. Hall received the notice on December 31, one week later.  After filing his DFEH complaint he spoke with a co-worker’s attorney but did not immediately retain her.  Many months later, he did retain the attorney to represent him in litigation against Goodwill and the lawsuit was filed December 30, 2005, six days after the one-year anniversary of the issuance of the right to sue letter but one day prior to the one-year anniversary of his receipt of the notice.

Goodwill filed a motion for summary judgment alleging that the lawsuit was filed too late.  Government Code section 12965(b) provides that a lawsuit must be filed “within one year from the date” of the right to sue letter.  The trial court denied the motion and Goodwill took the matter up on appeal and prevailed.  The court of appeal held that the clear language of section 12965(b) dictates a legislative intent that the act triggering the statute of limitations is the issuance of the right to sue letter, not its receipt by the complainant.  The court noted that earlier language of the statute, did key the running of the limitations period to the date of receipt.  However, the statute had been changed by the legislature to include the current language, making it clear to the court that the legislature intended the triggering event to be the issuance date, not the receipt date.

The appellate court contrasted the California statute with the language of Title VII of the 1964 U.S. Civil Rights Act, which clearly provides that the time to file a lawsuit after receipt of a notice from the Equal Employment Opportunity Commission (EEOC) runs from the date of the employee’s receipt, not from the date of the letter’s issuance by the EEOC.

Years ago, while still a young attorney, I learned from a more senior practitioner that one should never forget to check small details like this as they may provide an early and quick basis to dispose of a claim.  Such was the case here.  Mr. Hall’s delinquent filing of his lawsuit, while only six days too late, was enough to doom his lawsuit.  The court of appeal directed that the lawsuit be dismissed for having been untimely filed.

School Administrator's Sexually Explicit Craigslist Ad Costs Him His Job

Posted by Frances Rogers on May 11, 2011

There was a collective sigh of relief from employers and school districts alike this week when a California Court of Appeal overturned a personnel commission’s decision to reinstate a middle school administrator after he posted a pornographic and obscene ad on the popular Craigslist website soliciting (free) sex.

Frank Lampedusa was a tenured dean of students in the San Diego Unified School District when he placed an ad on Craigslist stating in obscene, vulgar and albeit misspelled and grammatically incorrect phrases that he wished to engage in sexual relations with another adult.  The ad also contained pictures of Lampedusa’s face and genitalia.  An anonymous parent of a student reported the ad to San Diego police who notified the District. Lampedusa was placed on paid administrative leave and served with notice of intent to dismiss for “evident unfitness for service” and “immoral conduct,” among other charges.

Certificated public educators may appeal their termination to a three-member commission on professional competence.  Such a commission ordered Lampedusa reinstated, reasoning that the District failed to establish a nexus between his conduct and his performance as an educator.  The District sought relief in Superior Court and ultimately the Court of Appeal.

The Court of Appeal held that the commission’s decision must be set aside and that Lampedusa’s conduct did in fact constitute grounds for dismissal, applying the “Morrison factors” which are used to determine whether a nexus exists between misconduct and the impact on performance as an educator.

The Court surprisingly gave weight to the hearsay evidence of the anonymous parent complaint to find that the conduct had an adverse effect on students.  Nonetheless, Lampedusa’s principal also testified that she lost confidence in Lampedusa’s ability to serve as a role model for students, thus establishing an adverse effect on other educators.  The Court also gave weight to the fact that the conduct was not remote in time and that Lampedusa served as an administrator and educator in a middle school.  Lampedusa’s conduct was further aggravated by the fact that he posted graphic, pornographic photos, and obscene written material on a website open to the public, that he admitted to posting similar ads in the past, that he would probably post tamer ads in the future, and that he believed he had not done anything immoral.

The Court also relied on evidence that Lampedusa did not take responsibility for his conduct, but rather stated that he expected parents and students to take care not to look at such ads on Craigslist (reasoning that ads are preceded by an advisory that the content is explicit and that users should be at least 18 years of age).  Lampedusa also claimed to believe that, if a student saw his ad, it would not affect his ability to teach them effectively.

The Court also found that Lampedusa’s conduct was immoral because it evidenced indecency and moral indifference. The Court further noted that disciplining Lampedusa for publicly posting his ad did not infringe on his constitutional rights or the rights of other teachers.  These factors established evident unfitness for service. 

This case is a victory for employers, not to mention students, parents and our schools.  It is worth noting here that this educator was not disciplined for his private sexual conduct and certainly, such conduct between two consenting adults was not the issue.  It is the fact that this educator, in poor judgment, decided to post obscene and pornographic statements and photos publicly that justifiably cost him his job.

The Litigation Landscape In An E-Discovery World

Posted by Morin Jacob on May 10, 2011

flash-drive.jpgThe “e-discovery” amendments to the Federal Rules of Civil Procedure were implemented in December 2006.  In 2009, California enacted similar “e-discovery” rules.  The adoption of these rules has greatly impacted the landscape for entities that find themselves in litigation in state or federal court.  There is an issue, for example, about the retention of documents that are stored in hard form and electronically.

The federal and state e-discovery rules are predicated in large part on the decision in Zubulake v. UBS Warburg LLC, a case which dealt with a litigant’s duty to preserve and produce documents and electronically stored information (“ESI”).  ESI comes in many forms.  It includes e-mail, voicemail, text messages, word processing documents, spreadsheets, websites, etc.  The duty to preserve ESI obligates a party who knows of actual or probable litigation not to destroy discoverable ESI or places where ESI is stored (e.g., hard drives, flash drives, servers, back-up tapes, etc.)  A party to a lawsuit cannot satisfy its e-discovery obligations simply by printing out hard copies of e-mails or other documents since electronic data (e.g., “metadata”) underlying an electronic document is often just as relevant as the document itself.  “Metadata” is the electronic data that can identify when a document was created, who created it, what changes or modifications to a document were made, who made those changes, when they were made, etc.

As explained in Zubulake, “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.  While a litigant is under no duty to keep or retain every document in its possession…it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.”

As for the scope of evidence and ESI that must be preserved, the Zubulake court observed, “[t]he broad contours of the duty to preserve are relatively clear.  That duty should certainly extend to any documents or tangible things . . . made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’  The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., the “from” and “to” fields in e-mails).  The duty also extends to information that is relevant to the claims or defenses of any party, or which is ‘relevant to the subject matter involved in the action.’  Thus, the duty to preserve extends to those employees likely to have relevant information – that is, the ‘key players’ in the case.”

Agencies should have a document retention policy in place that addresses retention of ESI.  Plus, we generally recommend that, if your agency is sued, you: (1) work with your legal counsel to develop a preservation plan related to the lawsuit; (2) immediately suspend the scheduled destruction of all documents that relate to a plaintiff’s claims (if any), and (3) preserve all ESI relating to plaintiff’s claims.

Computer Use Policies More Important Than Ever: Employee Liability Under The Computer Fraud And Abuse Act

Posted by Guest Author on May 09, 2011

This guest post was authored by Alison Carrinski

The U.S. Ninth Circuit Court of Appeals recently held in U.S. v. Nosal that an employer may sue for damages under the federal Computer Fraud and Abuse Act (CFAA) when an employee’s computer or data use exceeds authorization provided by the employer.

People at WorkSection 1030(a)(4) of the CFAA prohibits employees from knowingly, and with intent to defraud, accessing an employer’s computer without authorization or exceeding authorized computer access, to further their intended fraud.  The Ninth Circuit held for the first time that employees exceed authorized access whenever they violate the employer’s computer and data access policies.

Nosal, a former employee of an executive search firm, engaged three current employees of the firm to help him start a competing business.  The employer had a clear policy that allowed use of its proprietary information only for legitimate business reasons.  The company notified employees that accessing electronic information without authority may lead to discipline or criminal prosecution.  In violation of this policy, these employees accessed the firm’s trade secrets and proprietary information by using their user accounts to access the employer’s electronic database.  Nosal argued that they could not be liable under the CFAA because the employees were not accessing the computer system without authorization, i.e., they were not hacking into the system.  The Ninth Circuit disagreed with Nosal, reasoning that, by violating the employer’s clearly stated policy, the employees had exceeded their authorized computer access and may be liable under the CFAA.

Consider the difference between this example and LVRC Holdings LLC v. Brekka, where an employee who sent confidential work emails to his and his wife’s personal email accounts was not liable under the CFAA.  In that case, as opposed to Nosal, the employer never notified the employee of any computer restrictions, either through a policy or in an employment contract.  Brekka teaches an important lesson:  if an employer does not publish a written policy, it will be unable to hold employees liable under the CFAA when the employee uses a computer in an unauthorized manner with the intent to commit fraud.

Therefore, it is important for employers to maintain a written, up-to-date computer access policy that limits use of work computers to work activities only, and that limits access to confidential and sensitive data to only those employees who need such information to perform their jobs.

Public Agencies Must Comply With New Federal Laws Regarding Service Animals

Posted by Guest Author on May 05, 2011

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This guest post was authored by Heather DeBlanc

The American Disabilities Act (ADA) used to allow any animal to qualify as a “service animal” as long as it was trained to do a task for an individual with a disability.  In the early 1990’s, when the Department of Justice originally issued its regulations, ADA did not define the parameters of acceptable animal species.  Over the last decade there has been an increase in the number of unusual animals, such as pigs, snakes, iguanas, miniature horses and parrots, which have been promoted as service animals.  There has also been a rise in the number of people who abuse laws by claiming their pet is a service animal. 

Effective March 15, 2011, new laws have narrowed the definition of service animal to include only dogs and miniature horses.  The definition specifically excludes all other species and clarifies that emotional support animals or pets are not service animals.  The discernable quality of a service animal is that, when the handler is in distress or needs something, it is trained to respond.  Where an animal’s mere presence provides comfort or support, it is not a service animal. 

The laws covering service animals include ADA Titles II and III, Section 504 of the Rehabilitation Act, the Fair Housing Act (FHA) and California Civil Code Section 54 et seq. 

ADA Title II applies to state and local governmental entities.  ADA Title III applies to businesses and nonprofit entities that are “public accommodations,” and private entities that offer examinations and courses related to educational and occupational certification.  Covered entities must modify policies, practices and procedures to permit use of service animals to accommodate individuals with disabilities.  (See 28 C.F.R. §§ 35.136(a) and 36.302(c).)  Under ADA and Rehabilitation Act (for purposes other than housing) the definition of service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. . .”  The regulations also carve out an exception for miniature horses as service animals if they meet certain assessment factors.  California law only references dogs and no other species.  Because federal laws impose additional requirements, an entity’s policies and procedures should comply with the federal requirements. 

A public agency may have a service animal removed from the premises if it is out of control and the handler does not take control or if the animal is not housebroken.  Also, the agency is not allowed to ask about the nature or extent of a disability, but may make two inquiries:  1) whether the animal is required because of a disability or 2) what work or task the animal has been trained to perform.  The agency should not make these inquiries when it is readily apparent that the animal is trained to perform tasks for an individual with a disability.  However, no documentation or proof of certification is required to prove the animal is a service animal and no surcharge may imposed because of the animal’s presence. 

The standards for on-campus housing at a college or university are different.  The U.S. Department of Housing and Urban Development (HUD) has interpreted the FHA to require accommodation of “assistance animals.”  Assistance animals include “species other than dogs, with or without training, and animals that provide emotional support.”  The animal may not be permitted under certain circumstances (i.e. threat to health and safety, may cause property damage, or poses certain burdens). 

Covered entities should update their policies and procedures to ensure compliance with the new accommodation requirements.  

Six Million Dollar Settlement Is A Reminder Of The Importance Of Complying With The California Family Rights Act

Posted by Elizabeth Arce on May 03, 2011

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The California Department of Fair Employment and Housing (DFEH) and Verizon Services Corporation, which employs more than 7,000 people, agreed to settle a class action lawsuit challenging the company’s handling of family medical leave requests under the California Family Rights Act (CFRA).  The DFEH’s lawsuit against Verizon alleges that the company had several policies and procedures that resulted in a class of current and former employees who were improperly denied CFRA leave, were disciplined for absences that were CFRA qualifying, and/or were terminated for taking CFRA qualifying leave.

Although the DFEH did not specifically identify Verizon’s policies and practices that served as the basis for the lawsuit, the DFEH gave two examples of the company’s allegedly unlawful conduct.  First, Verizon required employees’ to provide more information to support their requests for CFRA leave than is necessary under the law.  When the employee failed to provide the additional information, Verizon improperly denied the requests.  Second, Verizon denied CFRA leave requests as untimely even though, in the DFEH’s view, the requests were timely made.

The lawsuit was brought after the DFEH’s Special Investigations Unit spent two years investigating Verizon’s CFRA’s practices.  The investigation was started after the DFEH received a number of complaints in 2008 from current and former Verizon employees accusing the company of violating their right to take family medical leave under the CFRA.  Verizon fully cooperated with the investigation and did not admit to any wrongdoing in the settlement. 

Under the terms of the settlement agreement, Verizon agreed to pay over six million dollars to current and former employees adversely affected by the company’s unlawful practices.  In addition, Verizon agreed to review and revise its leave policies and procedures.  The company also agreed to continue an existing internal review process employees can use to appeal denials of requested CFRA leave.  Finally, Verizon agreed to provide training to all California officers, managers, supervisors, and human resources personnel on the proper handling of CFRA requests.  According to the DFEH, the settlement is the largest in its history.

The settlement between the DFEH and Verizon did not receive much attention by the media or legal practitioners.  However, the settlement deserves notice because it serves as an important reminder to employers of the need to have a thorough understanding of the CFRA and how its application may affect other leave laws such as the federal Family Medical Leave Act (FMLA) and California Pregnancy Disability Leave.  For example, new FMLA regulations went into effect in 2009.  However, existing CFRA regulations still refer to the 1995 version of the regulations.  Consequently, it is important for employers to understand the differences between the FMLA and CFRA.  In addition, employers should periodically review their leave policies and practices to make sure they comply with the current law, and provide training to all employees who handle leave requests on the proper handling of them.

Photo Credit: Verizon Logo by methodshop.com, on Flickr