R U My Cookies? Sexual Harassment In The Age Of Technology

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R U Looking @ My

Cookies? Sexual

Harassment In The Age

Of Technology

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R U LOOKING @ MY COOKIES? SEXUAL

HARASSMENT IN THE AGE OF TECHNOLOGY

MODERATOR:

Mercedes Colwin, Esq. - Managing Partner - New York Office, Gordon & Rees LLP

PANELISTS:

Adeola Adele - Senior Vice President, EPL Product Leader, Marsh, Inc.

Sarah K. Goldstein, Esq. - Director of Employment Practices, Los Angeles Office, Kaufman Dolowich & Voluck LLP

Edward R. Quinn, Jr. - Chief Executive Officer, Rockville Quinn Management

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Litigation Today:

The Cyber World and Employment Claims Collide

• Road Map:

– The “What” and “How” of Information Available

to Employers in Today’s Cyber World

– Employers’ Potential Liability: What is Legal

and What is Not

– Litigation: Ethics and E-Discovery

– Insurance Coverage for Social Media Claims

– How Today’s Employer Can Avoid Litigation

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Information Employers Can Discover

• Employers Themselves Can Obtain “Social Intelligence” On Employees and Prospective Employees

– Facebook

• A Look Into Prospective Employee’s Social Life; Facebook Groups, i.e., racist remarks;

– LinkedIn

• Employment History

– Google

• Information From Past 7 Years

– Craigslist

• Sordid Listings, i.e, oxycontin case.

– Instagram

• Naked photo sharing

– Tumblr, user groups, e-commerce sites, bulletin boards

• Blogs; comments on postings.

– Twitter

• Online comments and locations

– Vine

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How Employers Can

Discover Cyber Information

• Employers Can Use an Investigator to Obtain

Information

– Investigator’s Use of Spyware • Software based

– Domestic vs. Commercial Spyware » i.e., investigation of internet

footprint; email tracing • Hardware based

– Actual devices placed on computer » i.e., Flash drives – pull deleted

data, search chat logs, obtain emails, texts and internet browsing history

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How Employers Can

Discover Cyber Information

• Types of Spyware Used by Investigators

– Internet URL loggers – track websites

– Screen recorders – Take snapshot images

of screen and store or transmit them

– Chat loggers and email recorders – make

text copy of all incoming and outgoing chat

and email sessions

– Key loggers – record key strokes

– Password recorders – track typed

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Obtaining Cyber Information:

What is Legal and What is Illegal

• Can you spy on your employees??

– Employer Phones – Generally, yes

– Personal Phones – Generally, no

– Employer Computers – Generally, yes

– Personal Accounts – Depends on

whether use is at work and on

employer’s equipment

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Social Media:

What is Legal and What is Illegal

Types of Social Media Claims:

• Invasion of Privacy

• Harassment

• Discrimination

• Libel

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Social Media:

What is Legal and What is Illegal

• Invasion of Privacy

– California Law made it illegal for

employers to request that employees or applicants disclose social media log in information, access or content

• “Reasonable Belief” exception to investigations

– Maryland Law made it illegal to ask current and prospective employees for their user names and passwords to social media websites

– 2012 – 14 States introduced legislation – 2013 – Thus far, 7 States enacted

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Social Media:

What is Legal and What is Illegal

• Invasion of Privacy Continued:

– New York currently has pending legislation that would:

• Prohibit an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service

• Protect the privacy of social media accounts • Prohibit an employer from requesting or

requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic

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Social Media:

What is Legal and What is Illegal

• Invasion of Privacy Continued:

– New Jersey currently has legislation that :

• Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

• Prohibits requirement to provide information for access to account on social networking website by employer.

• Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers.

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Social Media:

What is Legal and What is Illegal

• Harassment

– A message posted on an employee’s

Facebook page or “tweeted” by an

employee has the potential to create

a harassment claim

– Employers should treat all conduct

similarly, whether it be person to

person or through some digital

medium

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Social Media:

What is Legal and What is Illegal

• Libel

– Employees can vent about their

co-workers, supervisors, and

employers.

– Employers must protect their

companies’ and their managers’

reputations from being damaged

by inappropriate postings.

– Employers must ensure that their

corporate officers and managers

do not post material that could

create a claim against them.

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Social Media:

What is Legal and What is Illegal

• Retaliation

– Employer Social Media Postings Can Result in Retaliation Claims by Employees

• i.e., president of a chain of bar and restaurants blogged and posted on

Facebook calling an employee a "b**ch" and asking for the strength to not kill another employee after a wage and employment lawsuit was filed. Court allowed employee to amend her FLSA claim to add a claim for retaliation.

• i.e., employee tweeted her displeasure at “off color jokes” and was subsequently terminated.

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Social Media:

What is Legal and What is Illegal

• Why is social media dangerous for

employers??

– Encourages social interaction in

casual sphere between supervisors

and subordinates….

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Social Media:

What is Legal and What is Illegal

• Recent Court Decisions

– Vance v. Ball State University

• The Supreme Court held that an individual or employee is deemed a supervisor only when the employer has empowered that employee to take

tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits”

– Cherry v. Shaw Coastal, Inc.

• Employer vicariously liable for harassment by supervisor consisting of sexually explicit text messages sent to plaintiff’s personal cell phone

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Social Media:

What is Legal and What is Illegal

• Recent Court Decisions continued

– Hollis v. Town of Mt. Vernon

• Employer’s motion for summary judgment denied with regard to sexual harassment claim arising out of sexually charged texts and emails

• Court noted that coworker sent plaintiff text messages and emails to her personal cell phone and email account, while she was on duty, thereby finding sufficient grounds to warrant the conclusion that the texts and emails

affected the terms and conditions of plaintiff’s employment

– Garvin v. Sioxland Mental Health Services

• Court was unfazed by the fact that some of the alleged sexually harassing communications at issue occurred over media that were not used for work purposes (i.e., Facebook), or the fact that some of the communications did not occur during business hours

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Litigating in Today’s Cyber Wo

rld

• Ethical Considerations

– Hostile use of “friend” request puts New

Jersey lawyers in ethics trouble

– San Diego County Bar prohibits misleading

a party into online “friendships”

– Private Facebook pages are generally off

limits

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Litigating in Today’s Cyber World

• Electronic Discovery

– Parameters:

• NYSBA allows a lawyer who

represents a client and who has

access to social media used by

another party to access and review

that party’s social media for

potential impeachment material

• Lawyers can not communicate

with represented parties through

social media without consent of

the other lawyer or by court order

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Litigating in Today’s Cyber World

• Electronic Discovery

– Tips:

• Instruct client to enhance privacy settings

• Conduct internet searches on principal target, key witnesses, expert witnesses, your client • Refrain from negative blogs

about Judges that may preside over your case

• Circumvent court-imposed restrictions on voir dire through social media and internet

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Employment Practices Liability

Insurance and Social Media

• Most EPLI Policies require that an alleged wrongful

employment act to occur within the insured’s capacity as such • Questions may arise as to whether the employee was acting

is his or her capacity as an insured employee

• Was the conduct within the course and scope of employment

• The answer is often very fact specific • Coverage

• Some insurers have attempted to exclude coverage • Some have attempted to impose a sublimit

• EPL Claims arising from the use of social media should be evaluated for coverage in the same manner as other EPL claims