California Public Agency Labor and Employment Blog - Useful Information for Navigating Legal Challenges

Harvard University recently had some explaining to do.  Last fall, the University conducted an investigation into the source information leaked to the media about students at the Ivy League school who had cheated.  The investigation included searching the work e-mail accounts of 16 Resident Deans without telling them.  Although the University eventually told the one Dean who has been the “source” of the leak about the search, the rest of the Deans did not know that their e-mail accounts had been searched until a newspaper reported on the searches this month. 

Resident Deans live among students and act as their advisors.  However, they also teach courses but are not on track to become tenured professors.  Each Dean is given a personal Harvard e-mail account and one to use specifically in their role of Resident Dean.  It was the latter type of e-mail account that was searched by Harvard.       

Some of the Resident Deans reacted angrily to the search, calling it a breach of privacy and trust.  The Deans also said they should have been told about the search earlier pursuant to the University’s policies.  Harvard’s policies allow it to search employee e-mail accounts including those of faculty members.  However, faculty members must be told about the search either before it happens or immediately after it is completed. 

Harvard defended its actions, stating that it did not notify the Deans of the search in order to protect student privacy and the identity of the person who inadvertently leaked the information.  The University also insisted that only the “subject” lines of work e-mails were searched, not personal accounts, and that no e-mails were opened.  Interestingly, Harvard also said the e-mail accounts searched were associated with the Deans’ administrative roles as Resident Deans.  This raised the question of whether Harvard considers the Resident Deans faculty members for purposes of notification under its own policies.

While it is not known if any Resident Dean will pursue legal action against Harvard, this incident offers lessons for employers regarding e-mail communications in the workplace. 

Employers should adopt a written electronic communications resources policy that puts employees on notice that e-mails, texts and voicemails sent over employer owned property may be monitored, and that employees do not have a personal privacy right regarding such communications.  The persons who will be subject to the policy should also be clearly stated.  At Harvard, it appears the University did not define whether the term “faculty member” includes Resident Deans.  Thus, an employer’s electronic communications policy should clearly identify who is subject to the policy such as volunteers or part-time or seasonal workers.  The policy should also notify employees that the electronic communications systems belong to the employer and should only be used for legitimate business purposes.  Along those lines, employee should also be notified that any information learned from the employer’s electronic communications systems should only be disclosed to authorized employees. 

Finally, an electronic communications resources policy may only allow monitoring of electronic communications routed through the employer’s equipment and property.  In the event a third party provider is involved in the transmission or storage of electronic communications, employers should obtain the employee’s written consent  to access these communications in order to preserve the right to monitor them.  Third parties will likely not release the information to employers absent written consent from the employee.   

Obama or Romney?  “Yes” or “No” on Proposition 30?  With the election only several weeks away, these questions are starting to make their way into the workplace as political debates among co-workers are starting to break out in lunch rooms, hallways and around the water cooler.  While such political discussions usually consist of a polite exchange of viewpoints, some conversations can result in heated arguments.  Because political dialogue typically touches upon issues of race, religion, sexual orientation and other protected classifications, employers sometimes struggle with whether political expression should be allowed in the workplace.  The following are few tips that can help employers avoid liability and maintain collegiality in the workplace without infringing upon their employees’ ability to vote and engage in political expression. 

Political Expression

The Government Code prohibits public employers from restricting the political activities of any officer or employee.  In addition, the Labor Code prohibits employers from making or enforcing any policy that prevents employees from participating in politics, becoming a candidate for public office, and controlling or directing the employees’ political activities or affiliations.  Employers also may not coerce employees under threat of termination to follow or refrain from engaging in political action or activity under. 

However, notwithstanding these restrictions, public agencies may adopt rules and regulations prohibiting officers and employees from engaging in political activity during work hours and on agency premises.  This means agencies can implement a policy or enforce existing rules that essentially requires employees to perform work during the hours they are paid to work.  The rationale behind this is that employers have a legitimate business need to make sure that the work of the agency is carried out. 

Finally, public employers may prohibit officers or employees from participating in political activities of any kind while in uniform.  In addition, peace officers and firefighters may not wear their uniforms while participating in political activities of any kind.  Agencies can also prohibit peace officers and firefighters from engaging in political activity while on duty.

Campaign  Bumper Stickers and Posters

Employees who wish to decorate their own personal workspaces with campaign stickers and posters present special challenges.  For example, prohibiting employees from displaying campaign posters endorsing a particular presidential candidate in their own workspace may violate free speech.  On the other hand, the agency may be subject to a hostile work environment claim if a gay employee finds offensive a poster against same sex marriage.  Unless the agency has a policy prohibiting employees from displaying all forms of non-business related materials or a non-solicitation policy, employers should not try to suppress political displays in an employee’s personal workspace unless it creates an undue hardship on business operations.  However, if the display is insulting or derogatory towards a certain protected classification such as race or gender, the agency should investigate the matter pursuant to its anti-harassment, discrimination and retaliation policy.      

Time Off to Vote

All employees have the right to take time off to vote.  Employees can take off as much time as they need to vote.  However, no more than two hours of the time taken off for voting shall be without loss of pay.  In other words, employers are only obligated to provide employees with two hours of paid leave to vote.  Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless other arrangements are mutually agreed to between the employee and employer.  If the employee believes that time off will be needed to vote on election day, the employer must be given notice at least two days before the election. 

Conclusion

This post is only meant to provide an overview of issues employers face during an election season.  For example, this post does not cover sections of the Education Code regarding political activity by employees.  Because there are many aspects to political expression in the workplace, employers are encouraged to contact any of our offices with questions.

This guest post was authored by Alison L. Carrinski

Last year we reported on the case U.S. v. Nosal, in which the U.S. Ninth Circuit Court of Appeals held that an employee may be criminally liable when he or she misuses employer data in violation of the employer’s computer use policy.  Reversing course, the Ninth Circuit recently reheard this case en banc and narrowed the scope of the Computer Fraud and Abuse Act (CFAA) to apply when an employee hacks into a computer, but not when an employee misuses information that employee already has authorization to access.

David Nosal, a former employee of an executive search firm, convinced some of his former colleagues to use their log-in credentials to download confidential company information, including source lists and contact information from a confidential database.  The employees handed this confidential information over to Nosal.  While the employees had authorization to access the information, they violated the company’s policy prohibiting disclosure of confidential information.

The U.S. government charged Nosal with, among other things, violating the CFAA for aiding and abetting his former colleagues to “exceed [their] authorized access” with intent to defraud the company. 

The issue in this case was the meaning of “exceeds authorized access.”  Nosal argued that this term refers to “hacking”—where an employee who only has access to some data on a computer “hacks” into or accesses, other data.  The government argued, however, that this term also includes situations where an employee has unrestricted physical access to a computer but uses the information in an unauthorized manner.

The Ninth Circuit Court of Appeal, sitting as a panel of eleven judges, agreed with Nosal’s narrow interpretation of what “exceeds authorized access” means under the CFAA.  The Court characterized the intent of the law to apply to traditional computer “hackers”—those that break into data without authorization—rather than those who misappropriate data they already have access to.  The Court noted that in 1984 Congress enacted the CFAA to combat the growing problem of computer hacking, rather than the more recent issue of misappropriation of data.

In reaching its conclusion, the Court also examined how the term “exceeds authorized access” appears throughout the CFAA.  One section of the law makes it a crime to “exceed authorized access” of a computer connected to the Internet, whether or not there is criminal intent.  The Court reasoned that if “exceeds authorized access” included misusing data that users already had authorization to access, millions of employees would find themselves in violation of this provision of the CFAA.  The Court cited numerous examples of obscure private policies of large, frequently visited websites, such as Amazon, Facebook, or eBay, which users unknowingly violate without repercussion all the time.  If an expansive interpretation of the CFAA applied, these website users may become criminally liable—the Court determined Congress did not intend such a scenario.

The CFAA creates a private right of action for employers.  However, this ruling clarifies that employers may not invoke the CFAA when an employee misuses data that he or she has authorization to access.  Nonetheless, an employer may discipline an employee for violating the employer’s computer use policy.  Therefore, it is important for employers to create, maintain and train employees on a comprehensive computer use policy that places clear limits on an employee’s use of agency data.

The Ninth Circuit Court’s narrow reading of the CFAA provision diverges from that of other circuit courts, therefore, there is a chance the U.S. Supreme Court may review this issue.

Last summer we reported that an employer may under California law use GPS devices to track employer owned or leased vehicles.  We recently revisited this issue in light of the U.S. Supreme Court’s unanimous ruling in United States v. Jones.   Although Jones does address the use of GPS devices to track vehicles, the holding will not likely impact an employer’s ability to place Global Positioning System (GPS) devices on its own vehicles to track employee movement. 

In Jones, the government obtained a warrant to attach a GPS device to a vehicle registered to respondent Antoine Jones’ wife.  However, Jones was the exclusive driver of the vehicle.  Although the warrant authorized the device’s installation on the undercarriage of the vehicle in Maryland within 10 days, the government installed the GPS on the 11^th day and in the District of Columbia.  The government used the device to track the vehicle’s movements for the next 28 days and the data collected from the device was used to convict Jones of multiple drug related charges.  

The Supreme Court ruled that the government’s attachment of a GPS device to a vehicle without a warrant, and its use of that device to monitor the vehicle’s movements, violated the Fourth Amendment to the U.S. Constitution.  The Court’s ruling is contrary to the result in United States v. Pineda-Moreno, where the U.S. Court of Appeals for the Ninth Circuit found that the government did not violate the Fourth Amendment when it placed a GPS tracking device on the undercarriage of a suspect’s car without a warrant. 

There are at least two reasons why the holding in Jones will likely not affect a California employer’s ability to use GPS tracking.  First, Jones examined the use of GPS in a criminal investigation, not in an employment setting.  Second, it is already a crime under California law to use an electronic tracking device to determine the location or movement of a person unless the vehicle is owned or leased by the individual or employer doing the tracking.  Thus, if the employer owns or leases a vehicle, the employer may use GPS or similar electronic tracking devices to monitor the location or movement of its employees in that vehicle.  

However, we recommend that employers who wish to use GPS should only do so when they have a legitimate business reason to track, and they should give employees notice that they will be monitored.  It is a good practice for employers to implement a written policy that informs employees that their usage of employer owned or leased vehicles will be monitored.  The policy should also discuss the business reasons for monitoring such as measuring productivity, locating stolen vehicles and ensuring that employees are following their assigned routes. 

Finally, at least one Superior Court has ruled in an unpublished decision that a public employer, Metrolink, was not required to meet and confer with an employee bargaining unit before installing two inward-facing cameras in all of its locomotive cabs for purposes of monitoring the activities of its engineers.  Although public employers have a management right to use devices, such as electronic tracking technology, to monitor employees, they must negotiate the effects of the policy, such as discipline. 

An in depth discussion on the use of GPS tracking devices can be found in LCW’s workbook on Privacy Issues in the Workplace.  The workbook also contains sample policies regarding electronic device tracking.  LCW can assist employers with drafting a policy.

This guest post was authored by Judith Islas

A recent California Court of Appeal ruling provides employers an important weapon to combat workplace violence.  The Court in Kaiser Foundation Hospitals v. Wilson ruled that courts may consider and rely on hearsay evidence to grant workplace violence restraining orders and injunctions.  This is a significant departure from the usual rule that hearsay cannot be admitted into evidence or relied on to support a Court order.

As with all workplace violence cases, the facts are not pleasant.  After Kaiser terminated his wife, Jeff Wilson became irate, started making violent threats toward  Kaiser employees, including that he was  going to “kill someone” “going to flip his lid” and  “do something he would regret.”  Wilson also reportedly told his therapist he was going to shoot a Kaiser employee.  In response, Kaiser sought and obtained a temporary restraining order and then a permanent injunction, barring Wilson from Kaiser facilities and from any contact or communication with Kaiser employees.

Wilson challenged the Court’s temporary restraining order and permanent injunction,  arguing they were based on hearsay statements that cannot be admitted into evidence or relied on by the Court.  Kaiser acknowledged that most of the evidence was hearsay-- threats Wilson reportedly made to employees who did not testify-- but argued courts may consider and rely on hearsay when granting workplace violence restraining orders and injunctions.

In a somewhat surprising, but welcome ruling, the Court of Appeal agreed with Kaiser, expanding an employer’s ability to obtain workplace violence temporary restraining orders and permanent injunctions.  The Court reasoned that under the hearsay rule (Evidence Code section 1200) hearsay is generally inadmissible, “except as provided by law.”  Since the statute governing workplace violence hearings (Code of Civil Procedure section 527.8) expressly provides: “At the hearing, the judge shall receive any testimony that is relevant”  it is one of the exceptions to the general rule that hearsay is inadmissible.  This exception is logical, the Court explained, because the whole point of the workplace violence statute is to prevent workplace violence and the Court’s ability to consider all relevant testimony strengthens its ability to protect employees from violence.

WHAT THIS MEANS TO EMPLOYERS

The Kaiser case increases employers’ ability to obtain workplace violence restraining orders and injunctions, but also increases their responsibility to seek such orders, because employers can rely on any relevant evidence, not only admissible relevant evidence.  If an employer has relevant evidence of violence or credible threats of violence in the workplace, it should not disregard that evidence or decline to seek a restraining order  simply because the evidence is hearsay.  The failure to seek a workplace violence restraining order and permanent injunction when the employer is on notice of violence or credible threats of workplace violence, can result in liability. 

The holidays are a festive time to be shared with family, friends and even coworkers.  Many employers also join in the celebrations by allowing employees to put up decorations and exchange gifts.  Employers also like to host holiday parties filled with food, music and alcohol.  However, these types of activities may create legal liability for employers.  The following few tips can help employers avoid liability without spoiling their employees’ holiday fun. 

Religious Holiday Accommodations

For many, the holidays are a time for religious observance.  For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass or a Jewish employee may request time off to observe Hanukkah.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices and observances.  Thus, employers who are confronted with requests for time off should try to accommodate them unless it would impose an undue hardship.  Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a coworker.    

Workplace and Workspace Decorations

Before decking the halls, employers should consider the location of holiday decorations.  Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another.  For example, if a nativity scene is displayed in the reception area or lunchroom, the employer may be perceived as favoring the Christian religion which some employees may find offensive.  Employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, candy canes, holly and gingerbread houses.

However, employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukkah themed decorations present a more difficult question.  For example, prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to violations of free speech and freedom of religion claims.  Because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in the workplace unless it creates an undue hardship on business operations.           

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Holiday Gift Exchanges

The traditional holiday gift exchange where one employee gives a gift to a randomly assigned employee has largely been replaced by the “white elephant” gift exchange.  Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous.  However, this game can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift. 

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace.  For example, employees should be discouraged from buying items that contain profane, graphic or sexual content.  In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully. 

Holiday Parties

The two biggest concerns for employers about holiday parties is potential legal liability from sexual harassment and drinking and driving.  Because employees typically “let their hair down” during these events, they may not conduct themselves the same way as they do at work.  Also, alcohol clouds judgment.  Employers may want to consider taking the following preventative steps to reduce liability. 

Employees should be reminded of the employer’s discrimination, harassment and alcohol and drug policies.  In addition, employers should designate a supervisor or manager to provide discrete oversight over employees during the party.  For example, if an employee appears to have had too much to drink, the supervisor or manager should intervene and arrange for the employee to get home safely.  If alcohol is served, employers should limit the amount consumed either by issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party.  Finally, if a harassment complaint is made after the party, employers should make sure they investigate it promptly.  

The IRS has issued a notice clarifying the tax treatment of employer provided cell phones and similar telecommunications equipment for business purposes.  The notice provides guidance on two key issues regarding employee cell phone use. 

First, if an employer provides an employee with a cell phone for “noncompensatory business reasons,” the IRS will treat the employee’s use of the phone for business purposes as a “working condition” fringe benefit.  This means that the value of this use is excludable from the employee’s income.  Second, if the employee uses the employer provided cell phone for personal calls, the value of the personal use will also be excludable from the employee’s income as a de minimis fringe benefit.

According to the IRS, a cell phone is provided for “noncompensatory business reasons” if there are substantial business related reasons for giving the phone to the employee.  These reasons can include the need to contact the employee at all times for work related emergencies or for the employee to contact clients while away from the office.  However, a cell phone is not provided for “noncompensatory business reasons” if the cell phone is given to the employee to “promote the morale or good will of an employee,” to recruit a prospective employee, or to provide additional compensation to the employee.

The IRS clarified its position following questions it received following passage of the Small Business Jobs Act of 2010 which removed cell phones from the definition of listed property for taxable years beginning after December 31, 2009.  When cell phones were included in the definition of listed property, employers and employees were required to keep detailed records of whether calls made on employer provided cell phones were for work or personal purposes.  This put an enormous record keeping burden on employers.  If no such records were kept, the value of the cell phone and the accompanying service were deemed “perks” that should have been treated as taxable income to the employee.  As a result, numerous employers were being hit with back tax charges by the IRS.  Some may remember that UCLA was slapped with nearly $240,000 in back taxes a few years ago.      

The IRS’ clarification regarding the tax treatment of work issued cell phones is welcome news to employers.  Now, employers and employees will not have to go through the onerous process of reviewing cell phone bills to separate work from personal calls and then include the value of the personal calls in the employee’s taxable income.  Nonetheless, employers who already have a cell phone policy should review it to make sure it clearly states that the phone should be used for business purposes only.  In addition, the policy should discourage employees from using employer provided cell phones for personal use.  Finally, employers who do not have a cell phone use policy should adopt one.

A California Court of Appeal recently ruled there has to be evidence of sexual desire where someone is complaining of sexual harassment at work by a member of the same sex. This is contrary to other cases that hold that no sexual desire is necessary. Additionally, consideration of whether the perpetrator had a sexual desire toward the target is not part of the analysis in harassment complaints against the opposite sex. 

In Kelley v. The Conco Companies, Patrick Kelley was hired as an apprentice ironworker at Conco, a construction company.  A few days after he started his employment, he was exposed to multiple violent, offensive and sexually explicit comments that were directed at him.  David Seaman, his supervisor, and another co-worker made various threats about forcing sexual acts on Kelly. Kelley complained to the job site's Field Safety Manager.  However, the behavior toward Kelley worsened, even after he was assigned to a different job site.  Kelley continued to complain to supervisors and was essentially told that there was nothing they could do for him. 

Kelley sued Conco for, among other things, sexual harassment in violation of the Fair Employment and Housing Act (FEHA).  The court considered whether extremely violent and sexually explicit comments made by a male supervisor to a male subordinate employee were sufficient to establish sexual harassment.  The court held that Kelley could not pursue his sexual harassment claim without evidence that Seaman was motivated by sexual interest in Kelley.  There was no evidence, however, to conclude that Seaman made an expression of actual sexual desire or intent, or that Seaman was motivated by Kelley's actual or perceived sexual orientation.

Although the Kelley decision may be used as a defense in the event of litigation against same sex harassment (i.e., to argue that there can be no claim for sexual harassment unless there is evidence of sexual desire), public agencies can better avoid the cost of lawsuits and risk of liability by implementing and enforcing a zero tolerance harassment policy, without regard to whether the perpetrator harbored any sexual desire for the target of the harassment.  While some harassing behavior may not be sufficiently severe or pervasive to violate the law, it can result in increased costs to the employer and a toll on the employees due to disruption in the workplace, turnover, loss of productivity, absenteeism, and low morale.

There are a couple of significant benefits to the zero tolerance approach.  For example, prohibiting inappropriate behavior allows a public agency the opportunity to take corrective action at an early stage, thus preventing more severe and potentially unlawful conduct from  developing.  In addition, an employer can find that an employee has violated its policy without inadvertently admitting that the conduct violated the law.

The Kelley decision represents a substantial departure from the previous case law relating to sexual harassment complaints against members of the same sex.  It remains to be seen how broad of an application and what kind of impact the Kelley decision will have.  In the meantime, public agencies should continue to adopt and enforce zero tolerance policies with the aim of maintaining harmonious work environments, and preventing liability and litigation.

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.

Section 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.

Hospitals and other medical-related employers are at the forefront of a growing trend of employers who have adopted policies prohibiting the hiring of smokers.  This practice goes far beyond merely banning employees from smoking in the workplace.  Rather, these employers are actually telling smokers that they need not apply for employment at all, or that they will be fired if they are caught smoking, even if away from the workplace. 

The New York Times recently reported that employers who have implemented smoker-free workplace policies now have applications that “explicitly warn of ‘tobacco-free hiring,’ job seeker must submit to urine tests for nicotine and new employees caught smoking face termination.”  Employers who have adopted policies banning smokers from employment justify this hiring practice as advancing their mission to promote personal well-being and healthier living.  These employers also cite efforts to reduce high health care costs and increase employee productivity.  Opponents of smoker-free policies argue that they invade personal privacy and could pave the way for employers to regulate other lifestyle choices such as consuming alcohol or even fast food.

This growing trend begs the question of whether California employers may legally adopt similar policies that smokers will not be hired.  After all, California was a leader in passing anti-smoking laws that banned smoking in public places such as restaurants, bars and casinos.  Currently, California is considering legislation that if passed would ban smoking at all state parks and beaches.  Even the stereotype of a Californian is that of a health-conscious, physically fit individual. 

However, Californians are also known to be champions of civil liberties.  Thus, California employers will likely face numerous efforts seeking to obstruct implementation of smoker-free policies.  For example, Labor Code sections 96(k) and 98.6 prohibit employers from discharging an employee or discriminating against any employee or applicant for employment because the employee or applicant engaged in lawful conduct occurring during nonworking hours away from the employer’s premises.  Since the act of smoking itself remains legal in California, employers who refuse to hire smokers may be subject to liability under these provisions. 

In addition, smoker-free policies may be challenged on privacy grounds as an improper attempt to monitor and regulate personal conduct.  Finally, an aggrieved smoker may be able to assert a claim for disability discrimination if he or she is able to show that the employer believed that the smoker would be more likely to miss work due to smoking-related illnesses.  Both the Americans with Disabilities Act and the Fair Employment and Housing Act prohibit discrimination based on a perceived disability. 

This post was co-authored by Elizabeth Arce

The popularity of social media websites such as Facebook and Twitter have created new and unprecedented challenges for employers.  The New York Times reported recently that even commanders in our Armed Forces have expressed concern about troops playing with iPhones and BlackBerrys when they should be working.  Because the law has not caught up with the use of social media, navigating through issues raised by this technology can be a difficult, complicated and frustrating process for employers.  Further, as we recently reported, employment law enforcement agencies such as the National Labor Relations Board will continue to scrutinize employer social media policies.  Thus, employers can no longer afford to ignore social media.  Both employers and employees should be aware of the following 10 issues raised by this growing medium.  

1.   The Internet is a Public Place.  Employees need to be aware that everything posted on the Internet is either public or can be made public.  For example, although you may set your Facebook account privacy settings as accessible to “friends only,” there is no guarantee that a “friend” will not download the picture, show your page to a “non-friend” or disseminate the picture via email or other social media. at a recent conference addressing social media issues in law enforcement, our partner Melanie Poturica reminded the audience, “Never put in electronic form what you wouldn’t want to be received by at least one million people.”  Employees should exercise common sense and good, ethical judgment when using social media.  They should also consider the power of words and images and think about how they will be viewed by others, including current and future employers. 

2.   The First Amendment Does Not Protect All Internet Speech.  Employees generally believe everything they say on the Internet is protected under the First Amendment.  This is a common misconception.  First, the First Amendment only applies to government employers, thus, employees working for private entities are not protected by the First Amendment.  Second, the First Amendment only protects speech made by an individual acting as a citizen on matters of public concern.  Speech made by employees as part of their job duties or speech that is not about a matter of public concern is not protected.  Additionally, speech that violates the law is not protected.  For example, false or harassing speech can give rise to defamation or harassment claims.  Disclosing confidential information can lead to invasion of privacy claims.  

3.   Social Media May Be Reviewed as Part of Pre-Employment Background Checks.  A prospective employer may legally use social media if the information obtained is publicly available (i.e. not password protected) and is posted by the job applicant (e.g. on Facebook).  However, employers should never create an alias or provide false information to gain access to a website as doing so violates federal and state law.  Employers should also keep in mind that the information is unverified.  Importantly, employers must refrain from using the information for discriminatory purposes.  Employers should only consider information that relates to the applicant’s ability to perform the job, and that could have been legally elicited during an interview.  The best practice is to use a third party or designated individual to conduct the background check and to identify specific job related criteria that will be covered by the background check. 

4.   Content May Be Subject to a Public Records Act Request.  Pubic employers are subject to the Public Records Act (“Act”) in California.  The Act provides that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state.”  The term “public records” is broadly defined to include “any writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Thus, employees must not open a social networking account using their agency issued email without agency authorization.  Any information related to the conduct of the public agency’s business communicated by a public agency or employee via a social networking site may potentially be subject to the public records act.  Although the Act exempts personnel, medical or other information that would constitute an unwarranted invasion of privacy, no court has yet examined the issue whether information communicated via social networking sites sent through agency-owned property falls within this exemption.    

5.   Separate Work Related Social Media Use from Personal.  Employers should also encourage employees to separate their work related use of social media from their personal use by using privacy settings to restrict access to personal information on private websites.  Both employers and employees should also consider whom to invite or accept into their social network.   These individuals will have access to “private” information that they can easily print, save, or forward to others.  

6.   Personal Electronic Communications May Be Subject to Monitoring.  If an employer provides employees access to its electronic communications resources, such the Internet, computers, and email, it should adopt a policy putting employees on notice that communications on those resources are agency property, are not private and are subject to monitoring.  

7.   Employee Off-Duty Social Networking Use May Give Rise to Discipline.  An employer may discipline employees for social networking conduct that undermines its mission, purpose and credibility with the public.  This can include harassment, bullying or other conduct that affects the agency.  Employees may also be disciplined for social media conduct that violates agency rules or policies or that discloses proprietary information. 

8.   Improper Use of Social Media May Lead to Liability.  Employee postings of confidential information on the Internet such as third party (other employees, personal employee and student information could open employers up to liability for violating privacy laws.  In addition, employees who post negative comments about one another on social networking sites may give rise to harassment, defamation or discrimination claims against the employer.  Finally, information obtained from social networking sites, workplace emails and Internet usage can be used as evidence against the employer. 

9.   Posting Content Anonymously Does Not Necessarily Protect One’s Identity.  Posting anonymously or under a pseudonym will not necessarily protect an author’s identity.  A person seeking the identity of an anonymous user can serve a subpoena on the user’s Internet service provider (ISP), email provider, or web hosts that ask for documents or information that will reveal the user’s identity.  Although the user can attempt to block or quash the subpoena, courts have discretion to allow the disclosure of identifying information. 

10. Social Media Policies Should Be Narrowly Tailored.  Employees have the right to discuss their wages, hours and working conditions.  Thus, social media policies should not be overly broad and must balance the employer’s needs with the right of employees to discuss working conditions.  Properly worded policies may prohibit employees from making disparaging comments unrelated to work, abusive, libelous or obscene statements, and anticompetitive, disloyal behavior.

A session will be conducted on this topic at the annual LCW Public Sector Employment Law Conference to be held March 17-18, 2011 in Newport Beach, CA.  Please click here to view the conference brochure. Additionally, the conference binder, containing all conference handouts, will be available for purchase following the conference. Please visit our website after the conference, or email us if you would like to purchase the materials in either binder or CD format.

Many public universities and colleges in California want to establish policies regarding what kind of speech can occur on campus.  But doing so can be hazardous.  Imagine you are tasked with establishing a policy that governs organized student speech on your campus.  What would be reasonable?

Without a lot of legal guidance, you might propose the following: being careful, you might say, “none of the campus is considered any kind of ‘public forum’ for speech activities.”  But, to be generous, you might also say, “all of the walkways surrounding the school library will be considered a free speech zone for students and outsiders.”  The area is not heavily trafficked, and makes up only a small portion of the campus, but you expect that at least some students and other passersby will be able to see demonstrations or activities in the area specified.  Again being generous, you write, “student organizations and outside groups must apply to use the free speech zone for demonstrations or distributing literature, and the college guarantees it will respond to the applications in fifteen (15) days, and will only deny permission for a proposed demonstration if it is manifestly inappropriate for an academic environment as determined by the Chancellor or by his or her designees.” 

This campus policy doesn’t sound crazy.  And it certainly does not create a police state or Orwellian dystopia.  After all, it permits even demonstrations that criticize the college or its policies, since most people would agree such demonstrations would not, if reasonable, qualify as "manifestly inappropriate for an academic environment." 

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