I have previously posted about the intersection of social media and the workplace. Prior posts are here and here. Recently, however, there has been a lot of buzz around how employers are attempting to obtain from employees or prospective employees the username and password ("login") information relating to their social media accounts so they can snoop around and see what they are doing in their spare time. Employers are then purportedly using this information when making hiring and other employment decisions. Here is a good interview of a law professor that discusses many of these issues.
Whether employers can request this information and access your private accounts is unclear. The determination of where an employer's right to gain knowledge about its employees invades an employee's right to privacy in the world of social media requires the application of existing law in a manner that was never contemplated when the law was originally passed. This often proves very challenging for courts and lawyers.
I have a visceral reaction to the idea of providing login information to an employer. But why is that? And if asked, are you required to provide your employer access to your social medial profiles? What are the consequences if you refuse the request?
The reason providing access to your private social media is so personally offensive to us is because we come to this issue with real-life experience that informs our understanding of the employment relationship. While it is rarely discussed or defined, there is clearly a line between the information we typically are required to disclose to our employers and the information we choose to keep private. We generally understand that we need to provide some personal information such as our address, social security number, work history, educational background and the like in order to apply for and be considered for employment. Past that point (let's refer to it as the "disclosure line"), the employee has generally controlled the amount and nature of personal information that is provides to the employer and coworkers.
When posting to Facebook, we often don't think about that disclosure line. We may post unflattering pictures or information about ourselves that we intend to only be shared with our "friends," not our employer. So those unflattering pictures, personal posts and rants about a jerk supervisor are clearly things we would typically choose to keep private from our employer. The thought of sharing this information with our employer feels like a massive breach of the disclosure line and explains why requests from employers for our account information seems so offensive.
Do you have to provide the information requested? There are arguments that existing law may prohibit an employer from accessing your private social media accounts. The stored Communications Act (SCA) and Computer Fraud and Abuse Act (CFAA) both arguably prohibit "unauthorized" access to electronic data. The question then becomes, if your employer asks for your username and password and you give it to them, is their access unauthorized? One court has held that where the employee provided the information because they feared they would suffer some type of adverse job consequence if they refused, the employer's access was unauthorized and violated the SCA. Interestingly, the jury in that same case held that the employer DID NOT violate the employee's common law right to privacy by accessing the social media site.
Adding to the confusion, however, is the question of whose authorization is needed to "authorize" access? Facebook has a policy prohibiting anyone other than the account owner from logging on to any particular account. So if you authorize your employer to access your account but Facebook has not, is the access authorized or not? This issue is unresolved.
And if you refuse your employer's request for login information because you have a good faith belief that your employer's accessing your Facebook page is illegal (say, for example, a violation of the SCA), and the employer takes some adverse employment action because of your refusal, you may have a claim under Minnesota's whistleblower statute. The whistleblower statute prohibits an employer from retaliating against an employee who refuses to follow an order that the employee believes (in good faith) violates any law, rule or regulation.
And what if you are an applicant for employment who is asked to provide your login information? We oftentimes put information on our social media pages that may disclose our birthdays, ethnicity, national origin, disabilities, sexual orientation, marital status, veteran status, etc. Typically, employers are prohibited by the Minnesota Human Rights Act and other federal anti-discrimination laws from inquiring into these areas during the hiring process because employers may not consider these factors in making the hiring decision. But by asking for your login information, are they in essence asking for this information and violating the law? This is unresolved as well. Some in congress are taking action to investigate this practice and put a stop to it.
There are also situations where coworkers may use social media to harass another coworker based on their sex, race or other prohibited reason. If the employer has a credible report that social media accounts have been used to discriminate or harass in the workplace, should the employer be allowed to request access to social media sites in those situations? Again, this issue is unresolved.
Then, of course, the employer needs to ask itself whether it is really worth all the hassle to ask for social media access in the first place? One law firm that represents employers believes the possible legal complications in requesting social media login information far outweighs any benefit the employer may receive from obtaining access to this information. I tend to agree.
But what should you do today if your employer asks for this information? First, ask your employer why it needs the information. There may be a less intrusive way to get the employer what they want.
Second, ask what will happen if you choose not to provide the login information. Will you be fired? Is there some other negative consequence that will occur?
Third, ask if you can consult with an attorney before making a decision. If your employer won't let you talk to a lawyer and want an answer immediately, you need to exercise your best judgment in determining how to proceed. If you decide to provide the information to the employer, I would be sure to communicate to them (in writing where possible) that you feel compelled to provide the information for fear of losing your job or suffering some other negative consequence. You may also want to consider telling them that you believe what they are doing may violate the law.
All of these decisions have consequences that cannot be predicted. The best course of action is to try talk to a lawyer and evaluate the situation against what is in your personal best interest.
Showing posts with label social media. Show all posts
Showing posts with label social media. Show all posts
Wednesday, April 11, 2012
Saturday, March 3, 2012
What Do A YouTube Video, Kickboxing, The Burnsville School District And A $255,000 Settlement Have In Common?
The folks in the Burnsville-Eagan-Savage School District are up in arms over a settlement payment made to the District's departing human resources director Tania Z. Chance. As first reported, Chance was paid approximately $254,000 to leave her job, which is supposedly the balance on her two-year employment contract that the school board just approved in July 2011. Dozens of angry parents, teachers and community members confronted the school board on Thursday about such a large payout and wanted details of why such a payment was made. Many opined that because the District is looking at significant budget cuts it should have put that money into the classrooms instead. One speaker compared the affair to Watergate and urged the school board to not "cover up" what actually happened.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
Ironically, the buyout of Chance's contract comes despite the fact she purportedly had some performance issues prior to the contract being offered and a number of school board members questioned the wisdom of providing her a two-year contract when they had no obligation to do so. Moreover, Chance has a colorful background. She is a self-published author and Ph.D. in philosophy. She also stars in a YouTube video where she engages in a kick-boxing exercise routine, drives her car, walks through the woods, lip-syncs to the background tract and pours herself a half-dozen shots of alcohol and then slams one of them on camera. (Shot pouring and drinking at 2:07) She has her own website if you are inclined to investigate further. Despite knowing of these issues (and the YouTube video), the board eventually voted in favor of offering Chance the employment agreement. (My views on social media and the workplace found here and here.)
(Tania Z. Chance)
The copy of the Settlement Agreement between the District and Chance provided to the media didn't offer many more details of the reasons for her departure. It had nine lines blacked out.
On Friday, however, new details came to light about some of the circumstances surrounding Chance's departure. Specifically, a copy of the full Agreement without the redactions was leaked to the press. It seems Chance had filed a Charge of Discrimination against the District and its Superintendent Randy Clegg with the Minnesota Department of Human Rights as well as with the Minnesota Board of School Administrators. As part of the Settlement Agreement Chance agreed to withdraw those complaints.
The rest of us, of course, want to know what gave rise to the District making such a substantial payout when it was under such financial stress due to cutbacks. The District and Chance have remained tight lipped about the circumstances that resulted in the buyout. I suspect part of her agreement included a confidentiality clause or non-disparagement provision preventing her from dumping on the District while they pay her a quarter million dollars (which seems understandable). Chance has, however, encouraged people to file public data requests on the individuals involved (presumably Clegg) to get to the bottom of the story. The District's attorney has simply stated the payment was made because the parties "wished to terminate their employment relationship." Really? Thanks for clarifying that for the rest of us. You've gotta love the lawyers.
The controversy doesn't end there. The Star Tribune and Pioneer Press argue a state statute requires a governmental agency (such as a school district) to disclose the "specific reasons for the agreement if it involves the payment of more than $10,000 of public money" when it settles an employment dispute or engages in a buyout. Indeed, the Minnesota Government Data Practices Act (MGDPA) includes a provision requiring just that. The District argues its "they wished to terminate their employment relationship" explanation satisfies this standard. (I don't.)
So should the District have paid the big bucks? Are we entitled to know what happened? Has Chance booked a taxpayer financed vacation to Hawaii? I can't answer all of these questions, but let's shed as much light as we can.
The fact that Chance filed a Charge of Discrimination with the Minnesota Department of Human Rights indicates to us that she likely had a complaint of discrimination, harassment or retaliation against Clegg and/or the District. Other details aren't available. We can't assess the merits of her alleged claims and we don't know what the District's response may have been.
What I can tell you is that working closely with someone who has accused you of discrimination, harassment or retaliation can be tricky. We all have a natural inclination to be angry with people who accuse us of something we don't believe we did. And if you are the one who believes you were the victim of discrimination, you may see everything your boss does after you reported the alleged discrimination as retaliation for your complaint. I assume that Chance and Clegg were required to work closely together at the District. My wife is a teacher and is a representative on her union's negotiation team. She informs me that the human resources director and superintendent of her district work closely together during these negotiations and in other instances. These allegations could have created significant issues for Clegg and Chance's working relationship. But more importantly, their issues likely interfered with the smooth operation of the District.
Moreover, if Chance had just recently filed a Charge of Discrimination that had any merit, she and the District were looking at probably 12-24 months of additional administrative / judicial proceedings. Regardless of the merits of the case, the District was going to have to pay Chance while she continued to work at the District or place her or Clegg on some sort of paid administrative leave. To place her on unpaid leave because she filed a Charge would constitute illegal retaliation. So the District was likely looking at paying Chance for the duration of her contract one way or the other regardless of the way things eventually went down. By settling the matter by paying her the balance of what she was owed under the employment contract while removing her from the District offices and obtaining a release of claims, the District may have chosen the least expensive deal it could while avoiding any decline in District efficiency due to the dispute between Clegg and Chance. On the other hand, if Chance's allegations are without merit, I think most people would have preferred that money be used to fight her claims in court.
The bigger question in my mind is what the District is doing to conduct an independent investigation of Chance's allegations. If Clegg did in fact engage in some type of discrimination, the citizens, students and parents in the district deserve to know and the school board should terminate him immediately. The real tragedy would be if Clegg engaged in discrimination and it was brushed under the rug with this settlement. That would truly be a "cover up" entitling this drama to a "-gate" type moniker. I hope that in addition to raising legitimate questions about the size of the payout to Chance, that these folks keep pressure on the school board to disclose the details of Chance's complaints.
So what about the District's refusal to provide additional details? Here I have some sympathy for the District. Both Clegg and Chance were public employees. There were clearly allegations against Clegg of wrongdoing. He may be subject to an investigation and potential discipline.
The MGDPA provides conflicting requirements on the District in this situation. On one hand, the District has an obligation to provide the details of why there was a payout to Chance as explained above. On the other, however, is a requirement to keep private the details of any pending complaint or investigation into a public employee (Clegg). While the existence of a complaint is public information during an investigation, the underlying data and information upon which the complaint is based is private. Once the employee is disciplined, the details of the complaint and data supporting the disciplinary action become public.
If the District is investigating Clegg, the MGDPA prevents it from disclosing the underlying facts until Clegg has been disciplined and exhausted whatever grievance rights he may have. From a legal perspective, I think the District was wise to choose to limit the details of the alleged complaint if it is in fact investigating Chance's allegations rather than to acquiesce to the Star Tribune's request for additional details related to Chance's departure. Whether that was the best decision from a political or public relations standpoint is different question.
I think this story is far from over. The details of Chance's allegations will come out sooner or later and there will likely be additional fallout for the District. If Chance's allegations are substantiated, the school board will face criticism for not taking faster action against Clegg. If Chance's allegations are shown to be meritless, they will face an outcry for paying her a quarter of a million dollars. There is no happy ending for the District here.
Monday, February 6, 2012
Your Boss Is Big Brother
I can almost guarantee Noah Kravitz did not see this coming: Getting sued by his former employer for $340,000 because his former employer, PhoneDog, claimed his Twitter followers were a "trade secret." PhoneDog is a company that reviews mobile devices like phones and tablets. Kravitz was a writer for PhoneDog from 2006 until his resignation in 2010. At the time Kravitz resigned, he had approximately 17,000 Twitter followers on his handle "PhoneDog_Noah." When he quit, he changed the Twitter handle to "noahkravitz" but kept the 17,000 followers.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
PhoneDog claims that Kravitz' Twitter followers were a "customer list" and "trade secret" that belonged to the company and brought suit in July 2011. Specifically, PhoneDog sued for misappropriation of trade secrets, intentional and negligent interference with prospective economic advantage, and conversion (theft). Kravitz sought to have the claims thrown out of court because he claimed the court lacked jurisdiction to hear the case. The court basically denied Kravitz' motion and is allowing the suit to move forward.
This case is interesting for a couple of reasons. First, it highlights the intersection of social media and the workplace. Are these Twitterers following Kravitz or the company? Does that matter? Who owns the Twitter account if Kravitz set it up on his own and was simply doing his employer a favor by tweeting a promotion once in a while? Can Twitter "followers" be a customer list given how fluid they may come and go and given the fact that most of them have likely never done business with PhoneDog? And how is it fair if these questions are answered in Kravitz' favor but he has to pay tens of thousands of dollars in attorneys' fees to establish he was in the right? This is all food for thought when any employee is venturing out into the social media universe on behalf of their employer. And it is a call for employers to make sure they have a well written social media policy that communicates the understanding of what constitutes company property, intellectual or otherwise.
Second, as this article points out, Kravitz claims that the company's lawsuit was brought only after he sued the company for failing to pay him his earned compensation following his resignation. While this may appear like a clear case of retaliation, Kravitz may not have a cause of action if he were to sue in Minnesota. Minnesota's Whistleblower Statute only provides protection for current employees. Because the retaliation in question took place after he quit, he would have no viable claim. Furthermore, Minnesota's wage and hour statutes also do not have an anti-retaliation cause of action on which Kravitz could base a claim.
I will leave you with a few additonal thoughts about social media and the internet:
1. Anything you do on your company's computers (email, internet searches, facebook, twitter, etc.) is not private. It is the company's computer, internet connection and email server that is in use, not yours. You have no expectation of privacy. Assume that your employee is reviewing everything you do on your work computer and act accordingly.
2. Things you put on social media about your employer may come back to haunt you. I would guess at least one of your "friends" is a coworker. Status updates like "My boss suckz!!!" have an uncanny knack for finding their way back to your boss. When you are fired for this, please spare me the phone call. You don't have a claim.
3. Don't have your settings set to "public" while your profile picture is of you doing a keg stand at the frat house. Employers are constantly sifting through social media and other information on the internet to find out about job applicants and current employees. They use this information to find a reason to disqualify you from consideration, not to see if there are any other awards or accomplishments you inadvertantly left off your resume.
4. And finally, if Mr. Kravitz and PhoneDog have taught you anything, keep your personal social media accounts and email addresses seperate from your work accounts.
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