Marital Communications are "Essential to the Preservation of Marriage" - Unless Made from a Workplace Computer

Posted by Gilbert S. Keteltas on December 14, 2012

Editor’s Note: This post is a joint submission to BakerHostetler’s Discovery Advocate blog.

Communications between spouses are typically accorded a “marital communications privilege” because they are “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.”  But marital communications to or from a workplace computer just became less privileged – at least in the Fourth Circuit.

In United States v. Hamilton, the Fourth Circuit considered Phillip Hamilton’s challenge to his conviction for bribery and extortion under color of official right.  A jury concluded that, “while a state legislator, Hamilton secured state funding for a public university in exchange for employment by the university.” 

Email that Hamilton sent to his wife from his part-time consulting job at the Newport News public school system was key evidence in his conviction.  On appeal, Hamiltonargued that his email exchanges with his wife were subject to the marital communication privilege and were improperly admitted into evidence.  Why did a three-judge panel of the Fourth Circuit disagree?

The Fourth Circuit concluded:

  • a marital communication is “publicly disclosed” and, therefore, the privilege is waived when the communication is stored on a workplace computer and the workplace computer use policy provides that there is “no expectation of privacy” in the use of the device;
  • it did not matter that the email at issue predated the adoption of the workplace computer use policy because Hamilton“did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.”

Hamilton, supported by amicus Electronic Privacy Information Center (EPIC), argued that there is generally a reasonable expectation of privacy in the use of email.  But the Fourth Circuit concluded that that expectation ends in the face of a policy that states otherwise.  The Court likened the workplace computer to a stenographer and suggested, “just as spouses can ‘conveniently communicate without’ use of a stenographer, they can also ‘conveniently communicate without’ using a work email account on an office computer.”

EPIC amicus brief suggested that the lower court’s evidentiary ruling was out of step with modern workplace communications technology – and it may be that Hamilton and EPIC will now point to the Fourth Circuit’s example likening an email system to a stenographer as further evidence of a decision that reaches into the past rather than focusing on the modern workplace.

EPIC focused on the eroding distinction between business and personal communications in the modern workplace.  Indeed, much has been written about “bring your own device” policies where an employee supplies her own smart phone or tablet and the device is also set up for workplace communications.

But the Fourth Circuit was not faced with that fact pattern and EPIC’s arguments may yet find traction if a question arises about a communication stored on a device with mixed personal and business attributes.  But even in that situation, an employee should be careful to separate business communications on a work account from personal communications on a personal account.

This case continues to emphasize that employees who consider their communications on workplace devicesprivate– even, for example, when they access personal email accounts on workplace computers – put themselves at risk.  This issue sometimes arises when an employee contacts counsel from a workplace computer that is later the subject of discovery in a case brought by that employee against the employer.

Finally, as I prepare to participate in a panel today on technology in the board room with my colleague Suzanne Hanselman, I also see some warnings from Hamilton that are relevant to modern, mobile directors and the companies on whose boards they serve.  Think carefully about how sensitive information is communicated to outside directors.  If such information is accessed from the director’s day job, it may remain on that workplace computer and be subject to later discovery.

Maryland First to Enact Social Media Ban

Posted by Craig Hoffman on April 20, 2012

Although it may not be a widespread practice among employers, asking employees or job applicants to provide passwords or access rights to social media accounts (e.g. Facebook or Twitter) has gained national attention and has been widely criticized by advocacy groups and politicians. While members of Congress are evaluating ways to prohibit the practice, Maryland became the first state to enact legislation prohibiting employers from requesting or requiring an employee or applicant to disclose any user name, password or other means for accessing a personal account. The law also prohibits employers from taking or threatening disciplinary action or refusing to hire a job applicant for refusal to disclose such information. The new law becomes effective on October 1, 2012.

The issue began gaining attention in Maryland when the Maryland ACLU filed a complaint after correction officer job applicants were asked to give their Facebook user name and password to the Maryland Department of Public Safety and Correctional Services. While the stated purpose of the state agency's practice was to check for gang affiliations, the agency rejected seven applicants based on the information it obtained and later decided to drop its requirement. The Maryland ACLU claimed the practice was illegal under the Stored Communications Act (SCA), which generally prohibits unauthorized access to electronic communications stored at an electronic communications service provider. Specifically, a violation of the SCA is committed by anyone who: "(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;" or "(2) intentionally exceeds an authorization to access that facility; and thereby obtains...[an] electronic communication while it is in electronic storage in such system." 18 U.S.C. § 2701(a)(1)-(2). If employees or applicants consent and authorize the employer to access their social media accounts (and it is still an open issue as to whether the SCA applies to stored content in social media), there would be no violation. Thus, the Maryland ACLU argued that a "forced authorization" was not a valid authorization under the SCA.

Other states are following in Maryland's footsteps, with proposed similar legislation in Washington, California, Illinois, Michigan, New Jersey and New York. The Michigan proposal would impose both criminal and civil penalties if a violation occurs, with the criminal penalty constituting a misdemeanor, punishable by imprisonment for no more than 93 days, a fine of $1,000, or both. The New York bill would impose a civil penalty of $300 for the first violation and $500 for each subsequent violation. The California bill, which also would prohibit colleges and universities from requesting social media usernames and passwords from students, was approved by a California Senate committee on April 18.

Social media sites have also been vocal about their disdain for the controversial employment practice. On March 23, Facebook issued a statement on its blog: "If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information." The Facebook Terms of Service prohibit users from soliciting login information, accessing accounts belonging to someone else, sharing passwords or otherwise jeopardizing the security of their accounts.

Though Maryland is the only state to have enacted a law addressing this issue, employers across the board should be wary of requesting applicant and employee social media credentials. Information gained from employee social media sites, such as race, sex, age, disability, sexual orientation, religion or national origin, may put employers in a more precarious position and increase the risk of liability associated with making hiring, firing or promotional decisions.

If you have any questions about social media and employment law, please contact any member of Baker Hostetler's Employment and Labor or Privacy, Security and Social Media Teams.

Authorship Credit: Craig A. Hoffman, Jennifer D. Johnson and Daniel J. Guttman

NLRB Provides Guidance Regarding Social Media Sites

Posted by Leah Williams on September 09, 2011

In its continuing effort to grapple with when and where employee speech is protected under Section 7 of the National Labor Relations Act ("NLRA"), on August 18, 2011, the NLRB's Acting General Counsel issued a report addressing when it is lawful and unlawful to discipline employees for social media activities and the proper scope of employers' social media rules and policies.

Generally, employees have the right under the NLRA to be free from reprisal for discussing with their co-workers the terms and conditions of their employment. This is protected concerted activity because by doing so, they are implicitly or explicitly seeking to join together for their mutual aid or protection. Accordingly, employers who discipline their employees for concertedly complaining about their wages, hours, and conditions of employment violate Section 8(a)(1) of the NLRA.

SOCIAL MEDIA ACTIVITIES PROTECTED UNDER THE NLRA

The General Counsel's report discussed four advice memorandums in which it was determined employee conduct was protected under the NLRA. The specific conduct at issue (the majority of which took place outside the workplace) involved:

1. Employees complaining to each other via Facebook (with expletives) about their employer's tax withholding practices;

2. A commission-paid employee posting on Facebook pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event;

3. An employee posting negative comments on Facebook about a supervisor (including calling him a "scumbag"), who was investigating a customer complaint against the employee; and

4. Multiple employees posting comments (which included swear words and sarcasm) on Facebook criticizing the work performance of their coworkers and staffing level problems.

In each of the above situations, the conduct was deemed protected under the NLRA because: (1) the communications concerned the terms and conditions of employment; (2) the subject of the communication was brought to management's attention or the employee had reason to believe the communication would result in a discussion with management; (3) the communications addressed employees' shared concerns; and (4) the communications were directed at coworkers and/or discussed with coworkers.

SOCIAL MEDIA ACTIVITIES NOT PROTECTED UNDER THE NLRA

In addition, the August 18, 2011 Report dealt with two Advice Memorandums in which an employee's use of social media was not protected activity. The first Advice Memorandum involved an employee who complained on a senator's Facebook page that her employer paid low wages and lacked sufficient equipment. This communication did not constitute protected activity because (1) the post was not discussed with the employee's coworkers; (2) the employee did not try to raise the issue with management and she did not expect the senator to resolve the problems with her employer; and (3) none of the employee's coworkers had met or organized any group action regarding the subject of the employee's comments. Complaining by yourself about your employer to an outside entity that is not a union has never been protected activity.

The second Advice Memorandum involved a reporter who created a Twitter account after being encouraged to do so by his employer. On that account, the reporter criticized his employer's copy editors, made comments about area homicides (which were a part of his beat), and criticized an area television station. The General Counsel stated the reporter's subsequent termination was not unlawful because the Twitter posts did not relate to the terms and conditions of his employment and the reporter did not seek to involve coworkers -- both of which are fatal to any claim of protection under the NLRA.

RECENT ALJ DECISION

While not addressed in the NLRB's report, it is important to note that on September 2, 2011, an Administrative Law Judge (ALJ) issued the first post-hearing decision regarding an allegation that discipline of employees for comments made on a social media site violated Section 8(a)(1) of the NLRA. In Hispanics United of Buffalo Inc., NLRB ALJ, No. 3-CA-27872, 9/2/11, five employees were fired after they used Facebook to post complaints about a fellow employee's criticism of their work. The employer claimed that the Facebook comments caused the employee to suffer a heart attack and were a violation of the company's harassment policy. After a hearing, the ALJ ruled that firing the workers for such work-related comments violated the NLRA because the employees engaged in concerted activity that was protected by the NLRA. The ALJ specifically rejected the employer's defenses finding no evidence to support that the Facebook comments harmed the employee's health or violated the employer's harassment policy.

The Facebook comments at issue in Hispanics United of Buffalo Inc., clearly concerned terms and conditions of employment which were directed to coworkers and addressed the shared concerns of the employees. Accordingly, the ALJ had no problem concluding that the communications were protected concerted activity under the NLRA.

GUIDANCE REGARDING THE SCOPE OF EMPLOYER'S SOCIAL MEDIA POLICIES

The Advice Memorandums as well as the recent ALJ decision in Hispanics United of Buffalo Inc., make clear that an employer must tread very carefully in seeking to promulgate policies which regulate the activities of employees on social media sites. Certainly, any policy which seeks to regulate discussion among employees concerning the workplace or their terms of employment will be deemed unlawful and overbroad by the NLRB to the extent that it regulates protected concerted activity under Section 7 of the NLRA.

It is equally clear that employers have very limited defenses when disciplining an employee who engages in concerted activity. For example, in a matter in which the employees complained about an employer's tax withholding practices, the General Counsel rejected the employer's argument that discipline was appropriate, or that the conduct was not protected, because it was defamation. The General Counsel reasoned that an activity does not lose its protected status simply because the statement is false. The statement must be maliciously false to lose its protected status. Similarly, the fact that the protected communication contained swear words and insults was insufficient to render the communication unprotected. This reasoning is consistent with long-term precedent that holds that employee conduct must be significantly outside the realm of normal workplace conduct to lose the protection of the NLRA. Accordingly, it will be critical for employers to seek counsel before implementing such policies in the future.

NLRB Issues Advice Memorandums Regarding Disciplining Employees for Social Media Misconduct

Posted by Leah Williams on August 05, 2011

Since the advent of social networking websites like Facebook, employers have struggled to determine when it is appropriate to discipline an employee who engages in misconduct through social media.  Fortunately, the NLRB offered significant guidance on this issue in three Advice Memorandums submitted in July 2011.  These Memorandums seem to indicate an employer may discipline an employee for comments made on Facebook without violating the National Labor Relations Act (NLRA) if:

1.  The employee’s work complaints on Facebook were made only to family or friends; or

2.  The employee’s complaints expressed only an individual gripe with the employer, rather than concerns expressed by employees collectively.

The first Advice Memorandum.PDF concerned an employee who worked at a residential facility for homeless individuals who suffered from substance abuse and mental illnesses.  The employee posted demeaning comments about some of those individuals on her Facebook wall and was subsequently terminated.  None of the employee’s coworkers were her Facebook “friends,” and only personal friends responded to the relevant posts. 

The General Counsel determined that these Facebook posts were not protected because they: (1) were merely communications to friends about work; (2) did not relate to the terms and conditions of the employee’s employment; (3) were not discussed with the employee’s coworkers and no coworkers responded to the posts; and (4) were not an outgrowth of collective concerns and the employee was not seeking to induce collective action.  The employer, therefore, was permitted under the NLRA to discipline that employee as it saw fit since those posts did not constitute protected activity.

The second Advice Memorandum.PDF dealt with a bartender who complained to his step-sister through Facebook about not receiving a raise over the past five years and his employer’s policy that prohibited him from receiving a share of waiters’ tips, even though the bartender helped serve food.  He also posted insults regarding the employer’s clientele.  The bartender had a similar conversation about the unwritten tipping policy with a fellow bartender several months prior to the Facebook posts, but neither employee raised the issue with management.  Upon learning of the bartender’s Facebook posts, the employer terminated his employment.

The General Counsel reasoned that the employer bore no obligation to reverse the bartender’s termination because: (1) the Facebook communication was not addressed to the bartender’s coworkers and he did not discuss the post with his coworkers; (2) there had been no employee meeting nor any attempt to initiate group action with regard to raises or the unwritten tipping policy; and (3) no effort had been made to take the bartender’s complaints to management. It should be noted that the General Counsel reached this determination despite fully acknowledging that the communication addressed the terms and conditions of the bartender’s employment, and that the tipping policy had been the subject of conversation between the bartender and the coworker.  The General Counsel, nevertheless, concluded the Facebook posts did not grow out of earlier conversation with a coworker. 

The third Advice Memorandum.PDF involved an employee who posted the following language on Facebook:

I swear if this tyranny doesn’t end in this store, they are about to get a wakeup call because lots are about to quit.

. . . .

[The Assistant Manager] is being a super mega puta! Its [sic] retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting [sic] it for that price … that’s false advertisement if you don’t sell it for that price … I’m talking to [the Store Manager] about this shit because if it don’t [sic] change [the Employer] can kiss my royal white ass.

Obviously these posts addressed the terms and conditions of the employee’s employment.  Further, unlike the other employees addressed above, this employee’s Facebook posts were communicated to his coworkers, earning responses on the website such as, “hang in there,” “bahaha like! :),” and “What the hell happens after four that gets u so wound up??? Lol.”

The General Counsel concluded that even though these posts addressed the employee’s terms and conditions of employment and were directed to coworkers on Facebook, they did not constitute a protected activity.  The General Counsel determined that the Facebook post expressed only an individual gripe with the employer, and that the employee was merely expressing his personal “frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items.”  Thus, there was no outgrowth of collective concerns and the employee was not seeking to induce collective action.  As to the post being directed at coworkers, the General Counsel reasoned that the coworker’s responses did not convert the posts to collective action because their joking and sympathetic responses demonstrated their belief the employee was only speaking on his own behalf. 

An employee’s conduct is concerted only when he/she: (1) acts with or on the authority of other employees; (2) seeks to initiate, induce or prepare for group action; or (3) brings group complaints to the attention of management.  Based on the above-mentioned Advice Memorandums, it appears that social media communications that are solely on the employee’s behalf (e.g., posts that are not communicated to coworkers or management) or communications that are individual in subject matter (e.g., posts that may be communicated to coworkers but concern only an individual gripe) are not concerted activities and, therefore, are not protected under the NLRA.