Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

Legislation regarding social media is on the rise.  Commentators spend a lot of time monitoring the implications of social media in the employment and lawsuit context but the judicial branch is now weighing in as well.  A number of legislatures have already enacted laws that address what happens to social media accounts like Facebook or Twitter upon a person's death.  Some states are also considering restricting potential employers from requesting a person's social network password during the hiring process. 

Where else could we see legislation?  Like cases, the scenarios are endless:  (1) laws that address employers monitoring employee activities; (2) use of social media by companies that conduct background screens both in and out of the hiring process; (3) use of social media screening in university or school applications; (4) the use of social media in lawsuits both criminal and civil; and (5) even use of social media in credit checks and loan applications. Of course, the use of social media information by companies like Facebook and Google are discussed routinely as they change their privacy policies.  Certainly, legislatures will weigh on privacy issues as well.

The point is, as we contribute more and more to our online history through social media, a relatively new phenomena, there will be more ramifications for what that information can be used for by employers, advertisers, government agencies, etc.  The legislative branch will continue to address the use of social media through legislation instead of letting the common law evolve because so many people are now online and it is a sensitive topic.  We will continue to monitor this. 

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Tune into the Proactive Employer for a roundtable social media podcast that a number of sharp lawyers participated in last week.  Should be something for everyone. 

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On July 14, 2011, I will be a part of a panel discussion on social media on the Proactive Employer podcast - http://www.blogtalkradio.com/theproactiveemployer. Please check it out.

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Although it's nice to have high paid jury consultants and days to ponder potential jurors, the reality is in most jury trials the lawyer is handed a list of potential jurors minutes before they walk in the Courtroom door.  It's then up to the lawyer and his client to sift through basic information about the individual (race, religion, profession etc.) and then ask twenty minutes worth of questions to hopefully learn more.  Jury selection is more of an elimination process than a selection process.

With the rise of social networking sites, blogs, and the like, more an more people have some sort of an internet presence.  Trial lawyers, from prosecutors to defense lawyers, are using that information during the jury selection process.  As illustrated in a recent Wall Street Journal article, lawyers are using the net through ipads and laptops to try an obtain information about prospective jurors as they sit in the courtroom.  An example:

Paul Kiesel, a plaintiffs' lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.

"We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be," he said. "It's a waterfall of information, compared to the pinhole view you used to get."

Jury selection is but one example of lawyers using Internet research.  Assume that the same information is being obtained for potential witnesses and parties at the outset of a lawsuit.  The point is that social networking information is fair game in Court and it provides a candid look in many instances of the thoughts and predispositions of people. 

This type of research will continue and become more extensive as  individuals develop more and more of an on line history.  Don't be surprised if within the next few years there are actually services that will provide this type information for a fee - there are already some that do so in the employment background search world.

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You've probably seen friends, coworkers, family members, and strangers glued to their "smart phone" of choice as if it is somehow an appendage.  The use/addiction to these items is increasing as we become more and more mobile.  A couple of interesting stats courtesy of CNN:

A Pew study found in January that 80 percent of American adults have cell phones and 30 percent of them access the internet on their phones. In 2000, 50 percent of American adults used cell phones, according to a Gallup Poll, and phones rarely supported access to the web.

More than 28 percent of employers fired a worker for e-mail misuse in 2007, compared to 14 percent in 2001, according to the American Management Association.

We can text, email (from both work and hotmail accounts), tweet, and post on Facebook from these devices.  Some of the devices may actually be provided by our employer or the employer may pay for data/wireless service.  So does an employer have the right to see those texts, posts, or emails? 

The United States Supreme Court is considering a California case where the Ontario, California Police Department reviewed sexually explicit text messages that a police officer sent from a police owned electronic device.  The Ninth Circuit previously held the police department's actions violated the officer's privacy rights because its actions constituted an illegal search and seizure.  The case was argued before the Supreme Court on Monday. As usual, SCOTUSBLOG has an excellent analysis of the case and play-by-play from the oral argument.   

Many think the Court will limit its opinion and any ruling will have limited implications.  Nevertheless, employers and employees should be cautious.  Employers have the right to look at company email in most circumstances, that seems to be accepted.  As previously discussed here, whether employers can review gmail or hotmail emails that emanate from a company computer or mobile device is unclear.  The same is probably true for texting or social media posting.  Now, the line becomes blurrier if the mobile device is owned by the employee but the service is paid for by the employer. 

Employers must proceed with caution and on a case by case basis before accessing these types of communications.  Of course, they could be very important in situations where an employee may be taking trade secrets or preparing to violate a non-compete agreement.  As is a recurring theme on this this blog, employees should assume that any electronic communication may ultimately be published to the world.  Though emails and texts are more convenient, phone calls and face to face meetings are still an option.

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Minnesota based TEKsystems Inc. sued three former employees for violating non-compete and non-solicit agreements.  TEKSystems is in the technical recruiting business and it claims one of the former employees was contacting its contract employees.  The complaint alleges Defendant Brelyn Hammernik used LinkedIn to solicit these employees:

For example, Hammernik has communicated with at least 20 of TEKsystems’ Contract Employees using such electronic networking systems as “Linkedin.”  Hammernik has, at a minimum, “connected” with the following TEKsystems’ employees through “Linkedin" . . . In her contacts with Tom Peterson, Hammernick asked Peterson if he was “still looking for opportunities.” She then stated that she “would love to have [you] come visit my new office and hear about some of the stuff we are working on.”

Evidence doesn't get much better then this LinkedIn email:

Linkedln

Tom Peterson has sent you a message.

Date: 12/08/2009

Subject: RE: Brelyn

 

Hi Brelyn,

Indeed I am still looking. I have time, though!

Lets get together. Where are you working these days? Your profile still has you working at TEK Systems. BTW - my email address is lipidfish@gmail.com if you would prefer the non-Linkedln route.

Tom

 

On 12/08/09 8:47 AM, Brelyn Hammernik wrote:

Tom—

Hey! Let me know if you are still looking for opportunities! I would love to have come visit my new office and hear about some of the stuff we are working on!

Let me know your thoughts!

Brelyn

Needless to say it will be very difficult for Hammernik to defend this type of conduct.  I've used emails in non-compete/non-solicit cases but never LinkedIn evidence.  As individuals migrate from company to company they routinely use LinkedIn and other social networking sites to update contacts on their whereabouts.  Usually, most updates don't contain an outright solicitation like this. The moral of this story:  Employees - be smart about communications that are blatant solicitations.  Employers - watch former employees social networking activities once they have departed.

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