General Counselor » Joel Rothman

Facebook privacy settings and privacy in the workplace

Joel Rothman — Tue, 09 Mar 2010 18:21:25 +0000

Since Facebook recently modified its privacy settings, the lines between what is public and what is private in the workplace have become blurred. As a result, it is more important than ever that employers and employees understand where the lines are drawn.

Many Facebook users (your employees included) face a risk of having private details of lives exposed if they opted for settings Facebook recommended back in December 2009. Users may not have understood what they agreed to when opting for the recommended settings.

Moreover, privacy settings have real-world consequences, as Arnstein & Lehr attorney Misha Kerr, an associate in our West Palm Beach, Florida office recently observed in an interview with e-Commerce Times. Misha and I saw this first hand in a case we worked on last year where a client’s private information was exposed to world, including the opposing party in our litigation.

Privacy settings and how you use them are becoming the subject of litigation more and more. In our case, Misha and I represented a client who inadvertently attended a film shoot for an adult (i.e. porn) website staged to look like a “wild party.” Our client never signed a release for her images but ended up on the adult site anyway.

After we filed suit the defendant responded by showing photos our client had posted on Facebook which were risqué at best. Taking the photos out of context our opponent argued that our client’s reputation could not be damaged. Meanwhile, if our client had simply corrected her privacy settings this issue could have been avoided.

Last winter, a dispute in Canada over Facebook photos also brought this emerging privacy issue to light. According to news reports, Nathalie Blanchard’s insurance company cut her disability benefits after an agent found photos of her on vacation through Facebook. When she was diagnosed with severe depression her psychiatrist told her to go on vacation. Until the payments ended last fall, she had been receiving monthly sick-leave benefits.

Manulife told Blanchard that her Facebook photos showed that she was able to work. According to Blanchard’s attorney, Manulife claimed that pictures of Blanchard having a good time at a Chippendales bar show, at her birthday party and on a vacation were enough proof to show that she was no longer depressed. Her attorney says she had the right to go on a vacation and claims that she was wrongfully dismissed from her benefits.

Manulife has reportedly said in a statement that the company would not deny or terminate a valid claim simply because of published information on social networking sites like Facebook. Blanchard responded by suing Manulife claiming that Manulife terminated her disability benefits without proper medical recommendations, relying instead on Blanchard’s Facebook photos, even after her doctor had recommended she go on vacation.

Employees need to treat information posted on social networking sites such as Facebook or Twitter like public information, not a private diary. Employees should also make sure that their Facebook privacy settings are appropriately set.

The recommended settings on Facebook give Facebook the right to publicize your own Facebook page’s private information, including your photos, status updates and other items you’ve posted. Everyone should consider changing the settings for (1) things you share, such as your status updates, photos, videos and other posted items; (2) who your personal information can be viewed by; and (3) whether your account is accessible to search engines like Google.

Fortunately, all of these settings, as well as other settings, may be modified to make your account more private.

Judge dismisses suit where boss texted witness

Joel Rothman — Tue, 18 Aug 2009 00:12:49 +0000

Today’s Miami Daily Business Review reports on a civil fraud case that Circuit Judge Scott Silverman dismissed after a witness’ boss sent text messages to his employee on the witness stand during trial.

According to the article, chief executive officer Yizhak Toledano sent messages to the company’s chief financial officer, Gavin Sussman, while the judge and lawyers conferred in a sidebar conference at the bench. When questioned, Sussman and Toledano admitted texting during the sidebar. The judge ordered the messages to be read aloud and into the record. The Judge ordered a mistrial in May after learning of the text messaging, and then ordered the case dismissed with prejudice last week.

Toledano’s texting “was underhanded and calculated to undermine the integrity of this court and the legal process,” the judge wrote in his Aug. 11 dismissal order. “Regretfully, plaintiff through its unacceptable conduct has reached into the court’s quiver of sanctions, drawn the bowstring taut and aimed the arrow at the heart of its own case. This court has justifiably released the string.”

Silverman also agreed to award attorney fees and costs to the defense.

Unbelievably, this wasn’t the first time Sussman was found to have texted a witness during a proceeding. During a deposition two months before trial, Sussman wrote to the witness, “Don’t worry about pleasing him. Just say no.”

Obama nominates three to NLRB

Joel Rothman — Mon, 03 Aug 2009 02:16:56 +0000

The National Labor Relations Board is presently composed of Chairman Wilma Liebman (D) and Member Peter Schaumber (R). That’s right, just two members. As a result, the NLRB’s decisions have been the focus of judicial scrutiny over whether it has the authority to issue decisions as a quorum of just two.

The President’s picks for the NLRB have yet to make it out of committee. The nominees are:

Republican Senate staffer Brian Hayes. Hayes currently serves as the Republican labor policy director for the Senate Committee on Health, Education, Labor and Pensions. Previously, he was in private practice for over 25 years, representing management clients exclusively in all aspects of labor and employment law. Hayes has represented employers before the Board, the EEOC, and various state agencies and has extensive experience negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. Before entering private practice, Hayes clerked for the Chief Judge of the NLRB and thereafter served as counsel to the Chairman of the NLRB. Hayes earned his J.D. from Georgetown University Law Center.
Democrat Craig Becker. Becker is associate general counsel to both the SEIU and the AFL-CIO. He received his J.D. from Yale Law School and has practiced and taught labor law for the past 27 years, as a professor of law at the UCLA School of Law and at the University of Chicago and Georgetown. Becker has published numerous articles on labor and employment law in scholarly journals and has argued labor and employment cases in virtually every federal court of appeals and before the US Supreme Court.
Mark Pearce, Democrat and founding partner of Creighton, Pearce, Johnsen & Giroux, a Buffalo, New York, law firm. Pearce practices union-side labor and employment law before state and federal courts and agencies. In 2008, he was appointed to the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the state department of labor in wage and hour matters. Prior to 2002, he practiced union-side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP, and from 1979 to 1994 was an attorney and district trial specialist for the NLRB. Pearce received his J.D. from State University of New York. He is a Fellow in the College of Labor and Employment Lawyers.

All three nominations have been sent to the Senate, but hearings have not been scheduled. Stay tuned.

Employees have an expectation of privacy in email sent from company laptops? Yes, a NJ court says.

Joel Rothman — Mon, 20 Jul 2009 21:32:17 +0000

A New Jersey appeals court has determined that an employee who used a company owned laptop to send email messages to her lawyer from her Yahoo account had an expectation of privacy in those messages, even though the employer had an electronic communications policy that stated that all communications sent from or using company equipment and facilities were property of the employer. Copies of the employee’s messages were recovered from the laptop through forensic analysis after the employee left the company’s employ.

The court had harsh words for the employer’s electronic communications policy:

A policy imposed by an employer, purporting to transform all private communications into company property — merely because the company owned the computer used to make private communications or used to access such private information during work hours — furthers no legitimate business interest. When an employee, at work, engages in personal communications via a company computer, the company’s interest is not in the content of those communications; the company’s legitimate interest is in the fact that the employee is engaging in business other than the company’s business. Certainly, an employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.

The court ordered that all emails exchanged by plaintiff and her attorney in the possession of either the company, the company’s attorneys, or their agents or employees be turned over to plaintiff, that all these emails be deleted from any computer hard drives upon which they were stored, and that the trial court consider whether the company’s law firm must be disqualified.

In this case there was no evidence that the employee had read, understood or agreed to the company’s electronic communications policy that the employer attempted to enforce against her. If the employer had documented her agreement to the policy, and it was clear that she agreed and understood the policy, perhaps the result may have been different.

Stengardt v. Loving Care Agency, Inc., Docket No. L-858-08 (N.J. App. Div. May 13, 2009).