Video – This Week in Law, hosted by Evan Brown, an Illinois-based attorney who specializes in technology cases
If social media within our court system could take on the persona of a child, today it’d be considered a toddler, according to one legal expert.
And, as any parent can attest, a toddler is always developing and anything but consistent.
One thing most everyone agrees with is that social media is here to stay when it comes to legal issues in the workplace. That may be where the common ground ends.
To prove our point, let’s examine a few groundbreaking social media cases involving businesses that illustrate a court system still trying to find its footing.
Late last year, a federal judge ruled that the Buffalo, N.Y.-based nonprofit, Hispanics United for Buffalo, had to reinstate a group of employees who were fired for posting comments about their workplace on their personal Facebook pages. In the issue under dispute, a staffer expressed frustration with her workload on her Facebook page, which quickly generated a thread of harsh rebukes from co-workers regarding their comparable duties that the original worker then shared with her supervisor. That manager fired all the employees involved based on the firm’s social media policy banning cyber harassment.
The National Labor Relations Board, however, viewed the Facebook thread as an effort to improve work conditions and considered the comments protected speech, much the same as workers’ rights to form a union.
That shifted the scales a bit when compared to a 2010 case heard in federal appeals court in Georgia that involved a probationary firefighter in Savannah who posted photos of herself in uniform — along with some other very revealing ones — on her MySpace page. After being fired when those photos came to light, the woman sued for gender discrimination. The court dismissed the claim on grounds that the employee violated employer policies on photos posted on a public Website.
With these inconsistent legal outcomes, it’s no wonder employers are incredibly nervous about just how far they can go to set limits on employee use of social networking sites.
Further muddying up the waters is a New Jersey Supreme Court case, Stengart v. Loving Care Agency, in which an employee anticipating a lawsuit against her company used her Yahoo email, company laptop and server to communicate with her lawyer. The employee’s company argued they had the right to access the exchange based on its electronic communication policy. Initially, the company won the case, but the decision was later overturned in favor of the employee’s right to confidential attorney-client privilege.
Takeaway from all this? Clearly, any firm without a wide-reaching and detailed social media policy in place should install one. Yesterday. Other than that, there is no clear takeaway.
For further insights, we spoke with attorneys Evan Brown and John Barry.
According to Evan Brown, an Illinois-based attorney who specializes in technology cases involving computer software, developers and intellectual property, “There has always been a tension between law and technology with law constantly struggling to keep up. The whole idea of social media is just the most recent incarnation of this tension.”
Brown said companies remain on their heels because the field of social media is constantly in a state of flux while attorneys, too, are concerned when advising their clients based on the broad nature of various electronic media policies in place. He has, however, started to spot trends when it comes to the question of privacy of information on social media accounts in disputes.
“If there is a showing that the information is relevant (then) it can be used as evidence in lawsuits,” Brown said. “Safe to say a lot of these issues are unresolved, but as more disputes arrive in the context of social media, we will see more trends emerging.
John Barry, a partner in the law and employment department at Proskauer’s New Jersey office, agreed, noting “we will start to grow and figure out rules for how we’re going to address the use of social media (and) those rules will have some really solid guidelines. We’re probably past infancy and into the toddler stage. One thing that’s always going to be a part of this is social media is changing so rapidly. Just when we get our arms around how to face Facebook and Twitter, the reality is we’ll have new forms of social media in a year’s time. It all creates its own set of challenges.”
In a recent opinion piece on the role of social media in workplace disputes, Barry said: “I think courts have stuck their big toe in the water from understanding social media is a part of (discrimination) cases. Judges have ruled that it’s relevant. Applying solid guidelines to the electronic platform is difficult. That’s what they’re setting up.”