Orwell Part II: Rethinking Personal Privacy

Posted on May 24, 2011 by Rob Radcliff

                               Photo courtesy of K. Berberi.

The post from last week raised some interesting question regarding the employer monitoring of employee social media communications.  The takeaway - Do we need to rethink the sacrosanct division of our employment versus private lives? 

As social media use continues and increases, individuals are creating more and more online content. With more and more content out there, employers and potential employers can learn about the ongoing activities of their employees and job candidates. Before we even reach the issue of whether employer monitoring of prospective or current employees is proper, the first question is do we as a society need to accept the fact that by opting in to social media, we have essentially opted out some of our privacy rights?

As draconian as that may seem, the answer is yes.  Once we engage in these types of platforms, we are to some extent losing privacy rights, and what constitutes privacy has fundamentally changed. Employers, business associates, friends, and other voyeurs are going to look at this type of information and in many instances we want them to do so. Why else would we post?

It would seem likely that most people would accept the proposition that the use of social media leads to less privacy. After all, we literally let in some cases hundreds of our nearest and dearest friends view status updates, pictures, and information about our likes and dislikes.   But, how much is too much?  Where is the line?  There isn't one yet.

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George Orwell and Social Media

Posted on May 20, 2011 by Rob Radcliff

                                    George Orwell, Author of 1984

Ohio lawyer Jon Hyman provided some insight yesterday on the NLRB's latest social media case.   The short of it is an employer is alleged to have fired five employees because of negative Facebook posts about employment conditions.   Others have weighed in on the propriety of the firing, but from my perspective that's not the interesting part of the story.

The interesting part of the story is how did the employer know about the posts?  Did an employee report the communications to management?  Did a manager, who was a Facebook friend of the employee, see and report the communication?  Was the employer monitoring these communications?  Does a manager who observes these types of communications have a duty to report them to the company?

Most employers do not want to create, or at least leave the impression that "big brother" is watching its employees shades of George Orwell's 1984.  That said, assuming an employer can properly review an employee's tweets or updates, should they? 

Maybe (typical lawyer answer).  There is no one size fits all answer.  There is a difference between being nosy and protecting a business.  There are some good reasons to do so: (1) ensure nothing improper is going on in the workplace; (2) monitor morale in the workplace; (3) ensure there are not improper disclosures about company business including customer and confidential information; and (4) monitor the possibility of employee departures.  There are also a lot of reasons not to do so, including privacy and other legal ramifications and the "1984 effect" where there is a sense in the workplace that employees are being watched.

As social media communications continue to rise employers are going to have to evaluate whether a formal policy on monitoring social media communications is necessary.  Employees also need to think about whether it makes sense to friend or follow their supervisors.  There is no right or wrong answer, yet.

 

 

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TekSystems - A Traditional Resolution

Posted on May 13, 2011 by Rob Radcliff

Last year we profiled the TEKSystems v. Hammernik case that was filed in the United States District Court for the District of Minnesota.  The case was significant because it was one of the first where a Plaintiff seeking a temporary injunction used communications from social media (LinkedIn) as evidence of a non-solicit violation. 

Ultimately, the case was resolved through entry of a stipulated permanent injunction.  This required the Defendants to among other things: (1) search their computers for TEKSystems documents and information and return or destroy the information; (2) submit their computers to forensic inspection; and (3) not contact, solicit or accept business from any persons identified in an agreed to customer list.

Though the lawsuit was novel in terms of social media evidence it’s resolution was not.  Parties frequently agree to a set of customers that are essentially “hands off” in order to resolve these type of disputes.  

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