Written Testimony of Lynne Bernabei, Esq.1 Bernabei & Wachtel, PLLC

Meeting of March 12, 2014 - Social Media in the Workplace: Examining Implications for Equal Employment Opportunity Law

Thank you for the opportunity to address the significance of social media in the context of employment discrimination, harassment, and retaliation claims.

I. What is Social Media?

The definition of social media is changing and expanding. "Social media" no longer encompasses only Facebook and Twitter. New online platforms are constantly emerging, including media-sharing sites like Instagram, Imgur, Pinterest, and Vine, as well as forum-based sites like Reddit and social connection platforms such as Tumblr. Whereas ten years ago, an individual's online presence was largely limited to a profile-based site s/he curated, today a person's web presence is spread over any number of individual websites, and can include "likes,"² comments on websites, and connections on LinkedIn. A conversation between an employee and an employer, or between an attorney and a client, about the employee or client's "social media presence" is no longer as simple as inquiring about a person's Facebook profile or their Twitter handle.

Complex questions around discrimination, liability and discovery continue to arise as a result of the proliferation of social media options. First, to what extent may employers legally use the social media presence of employees to make hiring decisions? Second, how accessible are employees' social media activities in litigation discovery, particularly when an employee has brought suit against her employer? And third, to what extent are employers liable for the social media activities of their employees?

II. Use of Social Media In Hiring Decisions³

It is increasingly common for employers to obtain information about prospective employees from social media websites as part of formal or informal background checks.

If the employer hires an outside company to perform a background check on prospective employees, it must comply with the requirements of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. The employer must notify the prospective employee that the background check will be performed, and the prospective employee must consent in writing.⁴ Prior to taking any adverse action based on the background check, the employer must give the prospective employee the report and inform her of her right to dispute the accuracy of its contents.⁵ These requirements may provide the prospective employee with the information he or she needs to effectively challenge any adverse action.

However, employers may perform less formal background checks, in-house, escaping the requirements of the FCRA. There are currently more than 800 million active users of Facebook, more than 140 million people on Twitter, and around 125 million on MySpace. Each user is allowing potential employers to gain access to personal information, including the user's protected characteristics. Facebook, for example, allows users to post a profile picture, which often discloses the user's gender, race, or nationality. The user's profile can include information such as the user's gender, age, sexual orientation, and political philosophy, all of which are protected characteristics under various state or federal laws.

Surveys of hiring managers show that they are increasingly using social media to screen job candidates,⁶ and that employers may make a determination on an employee's suitability for a job opening based on the content of his or her social networking website.⁷ However, social media websites also display "non-job-relevant information that could be used inappropriately for evaluating applicants, resulting in biased hiring decisions,"⁸ and "the potential for legal liability is great, considering the dearth of research regarding whether [social network-] derived information validly predicts job performance."⁹ One study using hypothetical candidates found that individuals whose social networking site showed them drinking beer were significantly less likely to get a job offer (and those offers were at lower salaries) than were individuals whose social networking sites showed them in a family or professional context.¹⁰ Although alcohol consumption is not a protected category, this study does confirm that personal activities as revealed on a social networking site (and that are unlikely to be disclosed on a resume) may subjectively influence hiring decisions. Marital status, family and childcare obligations, home location (and therefore length of commute), and even sports team affiliation may directly or indirectly affect an employer's willingness to hire a given candidate-and all of this information is easily accessible on Facebook.

Employees may challenge such hiring practices under the anti-discrimination framework of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and other federal, state, and local statutes. Employees may also utilize some state laws that prohibit employment decisions, including refusal to hire, based on legal, off-duty recreational activities.¹¹

One court decision allowed an unsuccessful job applicant's age discrimination claim to go forward, where the plaintiff alleged "that the Defendants were aware of the Plaintiff's age, based on the inclusion of the year he graduated from college on a business networking site [LinkedIn]."¹² The district court noted that although the employer "claims that Heindel [the hiring manager] could not have reviewed his LinkedIn profile, the Plaintiff alleges in his Response that during telephone interviews, Heindel did inquire about and confirm the year that Plaintiff and the candidate who was selected for the position each earned their degrees."¹³

Some states have, often with the urging of civil rights groups, proposed legislation to prohibit employers from requesting employees' or applicants' usernames and passwords to access social networking websites. The Maryland chapter of the ACLU raised concerns after the Department of Public Safety and Correctional Services asked Robert Collins, a corrections officer, to provide his Facebook username and password during a re-certification interview.¹⁴ Mr. Collins observed the interviewer logging into his account and reviewing his private messages and pictures.¹⁵ The Governor of Maryland has signed legislation that prohibits employers from making such requests,¹⁶ marking the first state law to make this restriction. The Maryland Chamber of Commerce and other business groups opposed this legislation. A similar bill was signed into law in California in September, 2012,¹⁷ as well as in Illinois,¹⁸ Michigan,¹⁹ Colorado,²⁰ and New Jersey.²¹ Similar legislation was recently proposed in the U.S. Congress, although it died in committee.²²

Given the danger of increased reliance on social networking websites in hiring decisions, more states are likely to adopt laws that restrict an employer's access to social media websites, and restrict or prohibit the use of their content in making hiring decisions. At present, however, there is no national consensus on the extent to which employers may utilize personal social media posts when performing background checks and making hiring decisions.

III. Employer Liability for Employees' Posts on Social Media

Employers face potential liability for posts to social media sites made by their employees. This is seen most often in cases where an employee is accused by another employee of online harassment, discrimination, or defamation on a personal social media site and asserts that the employer knew of the conduct but did not act to stop it. ²³

To some extent, liability faced by employers will depend on the level of control an employer is assumed to have over employees' social media presence or online communications. For example, as more companies have a purposeful corporate "social media" presence and employ social media specialists to maintain and curate it, the lines between an employee's public and private social media identity are blurred. It may be more difficult for employers to assert that they are not aware of an employee's online presence and social media activity if maintaining that presence and activity are part of the job description. However, for the most part, employees' social media activity is a purely personal activity.

Nevertheless, some scholars have speculated that courts' willingness to consider outside-the-workplace activities in workplace harassment suits suggests that "courts should consider evidence of harassment over social media as part of the totality of the circumstances of a hostile work environment claim when the employer derives a substantial benefit from the social media at issue."²⁴ In Amira-Jabbar v. Travel Services, Inc., for example, the District Court of Puerto Rico held that social media harassment was sufficiently work-related to be included under the totality of the circumstances analysis, in a case where an employee posted photographs of a company outing on her Facebook page and another employee posted racially derogatory comments in return.²⁵

Notably, fact that relevant communications were conducted via an employee's personal electronic device does not shield an employer from liability or discovery. Some courts have ordered individuals to turn over their personal electronic devices for imaging when their employer is facing relevant litigation.²⁶

The issue is further complicated as more employers use a "Bring Your Own Device" policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job. In one of the only cases to date on the issue, the Court of Appeals of Georgia held that an employer's touching of an employee's personal laptop, which the employee was using for business purposes, to see and print some of the employee's personal emails which suggested he was aiding a competing business, did not constitute computer theft, computer trespass, or computer invasion of privacy.²⁷

Of course, public employers have additional special considerations. They must be particularly careful not to overstep First and Fourth Amendment constitutional boundaries in monitoring or limiting employees' social media activities; this may result in public employers being more vulnerable to accusations that they were aware of harassment or other online conduct but failed to stop it.

IV. Discovery of Employee Postings on Social Media and Networking Sites

Questions around discovery of social media most often arise in the employment litigation context when an employee or former employee brings suit against an employer, and the employer seeks to gain access to the employee's social media presence. Typically the employee's site, e.g. a Facebook page, has been periodically updated with news, photographs, and blog postings. Some sites require that a visitor be given permission ("friended") by the individual in order to access some or all of the content. Some of the information on these sites is innocuous, equivalent to an online resume or professional biography, and, if deemed discoverable, will pose no threat to a Plaintiff's case. Other postings may be more problematic - such as personal information that is embarrassing to the employee if it became widely disseminated, or that may contradict facts the employee is using to support her legal claims.

The Stored Communications Act, 18 U.S.C. § 2701 (SCA), limits an employer's ability to access an employee's electronic communications stored by a third-party provider, without the employee's consent. For example, a jury found that an employer violated the SCA by accessing a restricted-access employee chat group on MySpace, using another employee's login information without his effective consent.²⁸ As an alternative, information that is made publicly available by an individual can generally be subpoenaed²⁹ directly from the provider.³⁰ Where the information is not publicly available, however, the provider usually must obtain a letter of consent from the owner of the account.³¹ However, a criminal court rejected a defendant-subscriber's motion to quash a subpoena to Twitter, on the grounds that Twitter's terms of service and privacy policy made clear that the subscriber lacked any privacy or property interest in his account data or Tweets.³²

U.S. courts have increasingly held that employees do not have an expectation of privacy in their postings on social media and social networking sites, even information that is ostensibly limited to authorized visitors, on the ground that those sites explicitly disclaim any privacy or confidentiality in the postings (since the web administrators of the sites are allowed full access to all postings), and because the employee has already voluntarily disclosed that information to others. ³³

As a result, employers have increasingly sought discovery of employees' social media, particularly of the "private" side of their social media websites. The courts have started to apply a balancing test to determine if an employee should be required to allow the employer (or counsel for the employer) to access private postings and private sides of social media websites. One court explained that:

. . . material posted on a "private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b)... [and decisional law] ... there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiffs Facebook account.³⁴

Essentially, if an employee's "public" postings raise suspicions or red flags sufficient to demonstrate that her private posts may lead to the discovery of admissible evidence, that will often be enough to tip the balance in favor of the rest of her Facebook account being discoverable.³⁵

The sensitive nature of individuals' social media accounts have raised novel discovery questions. For example, how can parties determine what social media content is relevant without subjecting its owner to undue embarrassment? Some Judges have gotten creative, going so far as to create their own personal social media account to "friend" and view a party's social media activity if the party consents. In Barnes v. CUS Nashville, LLC,³⁶ the Magistrate Judge created a Facebook account specifically for the case so he could review and rule on withheld documents and photos, promising to terminate the account after reviewing the content for relevant information.

Additionally, attorney-client relationships must evolve to accommodate these new challenges. Attorneys and law firms may find themselves in the position of needing to use their own personal social media presence (e.g. a personal Facebook account) to "friend" a client in order to review what the client has posted, to determine if the client's activity could weaken a case or to evaluate how to respond to a discovery request. This raises significant ethical and professionalism issues, and further highlights the blurring of personal and professional boundaries caused by social media.

A unique problem arises when an employee had posted information on a social media website that is potentially relevant to the claims or defenses, but later deletes that posting, or deletes (or abandons) the social media account, thereby precluding discovery of those postings, or otherwise making it more difficult. In Hernandez, Magistrate Judge Ferenbach (District of Nevada), faced with a plaintiff who "attempted to retrieve the password to his MySpace account, an account that he has not used in years, but was not successful," concluded that discovery sanctions were not warranted as to that issue, since the defendant "can subpoena MySpace for access to plaintiff Ruano's MySpace account, … as his attempts to retrieve the password were unsuccessful."³⁷

In Gatto v. United Air Lines, a workplace injury case, Magistrate Judge Mannion (District of New Jersey) ordered plaintiff to allow the defense counsel access to his Facebook account by providing a new password to defense counsel, who then printed some pages from the Facebook account.³⁸ When the plaintiff received a notice from Facebook that his account had been accessed (i.e., by defense counsel), plaintiff then deactivated his Facebook account, so "that all of Plaintiff's account data was lost."³⁹ The result was that "the account could not be reactivated because Facebook had 'automatically deleted' the account fourteen days after its deactivation."⁴⁰ Defendant alleged that some of what they saw on the Facebook account before it was deactivated included comments and photos showing plaintiff's activities "that contradict Plaintiff's claims and deposition testimony," and sought spoliation sanctions.⁴¹ The Court found that "the deletion of Plaintiff's Facebook account" satisfied three of the four factors used in giving an adverse inference instruction, and concluded that "Defendants are prejudiced because they have lost access to evidence that is potentially relevant to Plaintiff's damages and credibility," so that "a spoliation inference is appropriate."⁴² However, the court did not find that attorney's fees and costs were warranted, since "Plaintiff's destruction of evidence does not appear to be motivated by fraudulent purposes or diversionary tactics, and the loss of evidence will not cause unnecessary delay."⁴³

In a 2012 sexual harassment case brought by the EEOC, Magistrate Judge Hegarty (District of Colorado) addressed the employer's request for sanctions relating to the EEOC's alleged dilatory conduct in responding to discovery requests relating to the claimant's social media postings.⁴⁴ The court had previously issued several orders defining the scope and procedures for this discovery, which was necessary because "at least some of the Claimants have been liberal in expressing their views about Defendant and their thoughts about this lawsuit using emails, texts, and blogging," which "has prompted the Defendant to seek similar evidence from all Claimants."⁴⁵ Although the EEOC has "caused unnecessary expense and delay in this case" relating to this social media discovery, the EEOC's conduct "does not rise to a level that is sanctionable under most rules governing the litigation process," including Rule 11, Rule 37(b), 28 U.S.C. § 1927, or the court's inherent authority.⁴⁶ However, Rule 16(f) could be applied to impose sanctions on the EEOC.⁴⁷ The court ordered the EEOC to "pay the reasonable attorney's fees and costs expended in bringing this Motion [to compel]."⁴⁸

V. Recommendations

The following recommendations follow from the case law that has developed up to this point:

1. Employers should develop clear policies that prohibit use of an applicant's social media postings in hiring decisions. These policies may assist employers defending against claims of discrimination in hiring.
2. The EEOC should define the situations in which it would be appropriate for employers to discipline an employee based on the employee's social media postings. The EEOC should articulate that an employee's use of social media to support a discrimination claim of another employee or to advocate for changes in the
3. work environment to eliminate discrimination are clearly protected activities, and cannot serve as a basis for discipline.
4. The EEOC should develop guidance on the extent to which an employee's outside-of-work social media activities can be used as evidence of discrimination or a hostile work environment for which the employer may be held liable.

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Footnotes

¹ Testimony prepared with the assistance of law clerk Jillian Wilson Ambrose.

² For example, the Fourth Circuit recently found that "Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it. It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech." Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013). In another case, an employee's act of clicking the "Like" button on a social media page was "concerted activity" for collective bargaining and organizing purposes because it expressed approval of employee complaints about payroll tax mismanagement and made "a meaningful contribution to the discussion." Three D LLC d/b/a Triple Play Sports, No. 34-CA-12915 (Jan. 3, 2012).

³ This section is taken substantively from Bernabei, Kabat, and Loveless, E-Discovery, Privacy, and Social Media in the Workplace, Presentation to the NELA 2012 Annual Convention, San Diego, CA, June 20-23, 2012.

⁴ 15 U.S.C. § 1681B(b)(2).

⁵ 15 U.S.C. § 1681M(a).

⁶ See Patricia Sanchez Abril, et al., Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee, 49 AM. BUS. L.J. 63, 86 (2012) ("One study recently found that forty-five percent of surveyed employers researched job candidates using online social networking sites. More than a third of employers in that survey also reported having found publicly available content on applicants' social media profiles that caused them not to hire the applicants."); C. Brandenburg, The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 FED. COMM. L.J. 597, 600 (2008) ("Of the employers electing to research candidates on social networking sites, sixty-three percent did not hire a prospective employee based on the information uncovered about the candidate online.").

⁷ See, e.g., Donald H. Kluemper et al., Social Networking Websites, Personality Ratings, and the Organizational Context: More Than Meets the Eye?, J. APPLIED SOC. PSYCHOLOGY (Feb. 2012).

⁸ Id. at 22

⁹ Id. at 23; see also Donald H. Kluemper & Peter A. Rosen, Future Employment Selection Methods: Evaluating Social Networking Web Sites, 24 J. MANAGERIAL PSYCHOLOGY 567 (2009).

¹⁰ Daniel Bohnert & William H. Ross, The Influence of Social Networking Web Sites on the Evaluation of Job Candidates, 13 CYBERPSYCHOLOGY, BEHAVIOR, AND SOCIAL NETWORKING 341, 343-45 (2010).

¹¹ See, e.g., N.Y. Lab. Law § 201-d; Cal. Lab. Code §§ 96(k), 1101, 1102; Colo. Rev. Stat. § 24-34-402.5; N.D. Cent. Code § 14?02.4?03.

¹²Nieman v. Grange Mutual Casualty Co., No. 11-3404, Opinion, at 4 (C.D. Ill. 2012).

¹³ Id. (denying motion to dismiss).

¹⁴ See Kevin Rector, Maryland Becomes First State to Ban Employers from Asking for Social Media Passwords, Baltimore Sun, Apr. 10, 2012 (http://articles.baltimoresun.com/2012-04-10/news/bs-md-privacy-law-20120410_1_facebook-password-social-media-bradley-shear).

¹⁵ Id.

¹⁶ See H.B. 964 (Md. 2012); S.B. 433 (Md. 2012) (codified at Md. Code Labor & Empl., § 3-712).

¹⁷ CAL. LAB. CODE § 980 (West 2012).

¹⁸ 820 ILL. COMP. STAT. 55/10 (2014).

¹⁹ MICH. COMP. LAWS ANN. § 37.271 (2012).

²⁰ COLO. REV. STAT. § 8-2-127 (2013).

²¹ N.J. STAT. ANN § 34:6B-6 (2013).

²² Social Networking Online Protection Act, H.R. 537 113th Cong. (2013) (applies to employers and educational institutions; allowing the Dept. of Labor to seek injunctive relief and civil penalties for violations by employers, but no relief for violations by educational institutions).

²³ For example, in Guardian Civic League v. Philadelphia Police Dep't., No. 2:09-cv-03148-CMR (E.D. Pa. filed July 15, 2009), Plaintiffs alleged that the employer police department created a hostile work environment under 42 U.S.C. § 1983 by allowing white police officers to operate a racist website and to post racially offensive comments while on and off duty. The case against the police department settled for $152,000 plus injunctive relief.

²⁴ Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 WASH. L. REV. 249, 251 (2012).

²⁵Amira-Jabbar v. Travel Services, Inc., 726 F.Supp.2d 77 (D.P.R. 2010).

²⁶ See, e.g., Stooksbury v. Ross, No. 3:09-CV0498, 2012 U.S. Dist. LEXIS 124148, at *13 (E.D. Tenn. Aug. 31, 2012); see also AllianceBernstein L.P. v. Atha, 954 N.Y.S. 2d 44, 46 (2012) (ordering defendant to deliver his iPhone and a record of its contents to the court for in camera review to determine what, if any, information contained on the iPhone was responsive to plaintiff's discovery request).

²⁷Sitton v. Print Direction, Inc., 718 S.E.2d 532, 535 (Ga. 2011).

²⁸Pietrylo v. Hillstone Rest. Group, No. 2:06-cv-05754, 2009 WL 3128420, at *1-6 (D.N.J. Sept. 29, 2009).

²⁹ On its "Desktop Help" webpage, Facebook notes that: "Federal law prohibits Facebook from disclosing user content (such as messages, Timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order. Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebook's "Download Your Information" tool, which is accessible through the Settings drop down menu.Notably, Facebook informs its users that it will respond to requests from law enforcement if it has "a good faith belief that the response is required by law." https://www.facebook.com/help/133221086752707?sr=2&sid=0W564ryoyCmOgR6Cp

³⁰Ledbetter v. Wal-Mart Stores, Inc., No. 06-CV-01958-WYDMJW, 2009 WL 1067018 (D. Colo. Apr. 21, 2009) (denying plaintiff's motion for a protective order; the subpoenas issued to Facebook, MySpace, and Meetup.com were reasonably calculated to lead to the "discovery of admissible evidence as is relevant to the issues in [the] case").

³¹Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) (quashing subpoenas to Facebook and MySpace for plaintiff's private messages under SCA and holding that the record was unclear as to whether the plaintiff's Facebook postings and MySpace comments were available to the general public; noting that if the posts were available to the general public, they could be subpoenaed); Mackelprang v. Fidelity Nat'l Title Agency of Nevada, Inc., No. 2:06-cv-00788-JCM, 2007 WL 119149 (D. Nev. Jan. 9, 2007) (defendant sent subpoena to MySpace to produce all records from plaintiff's accounts; MySpace produced publicly available information but refused to produce private information).

³²People v. Harris, No. 11-80152, 949 N.Y.S.2d 590, 2012 N.Y. Misc. LEXIS 3076, at *2-3 (Crim. Ct., June 30, 2012).

³³ See, e.g., Romano v. Steelcase Inc., 30 Misc. 3d 426, 434, 907 N.Y.S. 2d 650, 657 (N.Y. Sup. Ct. 2010) ("Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy."); see also Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125, 1130, 91 Cal. Rptr. 3d 858, 862 (Cal. App. 2009) (holding that, although an individual has the right to define one's circle of intimacy, the plaintiff's "affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under those circumstances, no reasonable person would have had an expectation of privacy regarding the published material.").

³⁴Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012); accord Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, 2013 WL 1176504, at *3 (M.D. Tenn. Mar. 20, 2013) (quoting Tompkins).

³⁵ See, e.g., Held v. Ferrellgas, Inc. 2011 WL 3896513 (D. Kansas 2011).

³⁶Barnes v. CUS Nashville, LLC, No. 3:09-CV-00764, 2010 WL 2265668 (M.D. Tenn. June 3, 2010).

³⁷Hernandez v. Creative Concepts, No. 2:10-cv-02132-PMP, 2013 WL 638696, at *8 (D. Nev. Feb. 20, 2013).

³⁸Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285, at *1-2 (D.N.J. Mar. 25, 2013).

³⁹ Id. at *2.

⁴⁰ Id. & n.1.

⁴¹ Id. at *2.

⁴² Id. at *4.

⁴³ Id. at *5.

⁴⁴EEOC v. The Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560, 2013 WL 752912 (D. Colo. Feb. 27, 2013).

⁴⁵ Id. at *1.

⁴⁶ Id. at *2.

⁴⁷ Id. at *2-4.

⁴⁸ Id. at *4.