UC and Social Media - How to Fight the Tough Cases

LITIGATION AND SOCIAL MEDIA IN UNEMPLOYMENT COMPENSATION: FIGHTING THE

HARD CASES

DEIRDRE J. KAMBER, ESQUIRE

Copyright 2010 (c) Deirdre J. Kamber

2UNEMPLOYMENT COMPENSATION: WHY BE CONCERNED?

UC is a quick hearing in a small room.

Referees are not bound to the Rules of Evidence. These are hearings, not court cases.

These are the easy cases.

3So, what’s the problem?

Referees view themselves as judges

The Rules of Evidence are now enforced

Many employers do not have up-to-date policies, AND

Employees (AND THEIR LAWYERS) are more excited than ever to bring “wrongful termination” and retaliatory discharge claims: UC is the new gateway to discovery of grounds for other claims.

SO, WHAT’S THE PROBLEM?

4OPPORTUNITIES GALORE

It is a chance to get information before bringing a claim.Phishing expeditionCheaper than litigationLearn about defensesNo counsel involvedSense of justice

It is a chance to get documents before bringing a claim or entering the discovery process.

5

It is a chance to argue that the employer did not fight

It is a chance to argue that the charge of discrimination or lost the argument

It is a chance to argue that the employer Did not assert termination for

causeLegitimate Business InterestPretextAt-will employment

UC: OPPORTUNITIES LOST

6

UC testimony is admissible in other actionsPrior inconsistent

statementImpeachmentPrior consistent

statementSworn testimony

USES OF UC IN OTHER LITIGATION ACTIONS

7

So, do we fight these cases or not?

What are the pros and what are the drawbacks?

If you fight them….

If you don’t fight them….

UC: FIGHT OR FLIGHT?

8

Do we hire counsel or not?

Sometimes yes, and sometimes no

If it’s a complicated case or if you think it’s going toward more litigation, call counsel to be sure: they SHOULD BE GIVING YOU a fair estimate of your chances of success

WHEN TOHIRE COUNSEL?

9

Do we hire counsel or not?

KNOW WHEN TO HANDLE THINGS YOURSELF AND KNOW WHEN TO HIRE OUT

Your lawyer should be teaching you how to handle cases on your own!

WHEN TOHIRE COUNSEL?

10Copyright 2010 (c) Deirdre J. Kamber

11OUR TIMELINE ON SOCIAL TECHNOLOGY

Where have we come from?

Where are we now?

Where are we going?...... Dave Carroll (United Breaks

Guitars)Huffington Post (United Breaks

Guitars) BPDirty Dominos“Your Newest Asset”

Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved

12

SOCIAL NETWORKING

Ibibo * Adult FriendFinder * Advogato * Amie Street * ANobii * ASmallWorld * Athlinks * AvatarsLast.fm * United * Badoo * Bebo * Bigadda * Big Tent * Biip * Black Planet * Blogster * Broadcaster

Yelp, Inc. * Youmeo * Zoo.gr * Buzznet * Café Mom * Cake Financial * Care2 * Classmates.com * Cloob * College Tonight * Couch Surfing * Daily Booth * Daily Strength * Decayenne * Deviant Art * DisABoom *

Dol2day * DontStayIn * Draugiem.lv * Elftown * Epernicus * Eons.com * Italki * Experience Project * Exploroo * Facebook * Faceparty * Faces.com * Fetlife * Filmaffinity * Fledgewing * Flixter * Flickr *

Fotolog * Friends Reunited * Friendster * Fruhstuckstreff * Fubar * Gaia Online * GamerDNA * Gather.com * Gays.com * Geni.com * Gogyoko *Hi5 * Goodreads * Gossipreport.com * Grono.net *

Habbo * Hospitality Club * Imeem * IRC-Galleria InterNations * Itsmy * Iwiw * Jammer Direct * KaiooKaixin001 * KIwibox * LibraryThing * LifeKnot LinkedIn * Live Journal * Lunar Storm * MeetIn * Meetup.com * Mobikade * MocoSpace * Mouthshut * Live Mocha * MOG * Mixi * Jaiku * Multiply * Muxlim *

MyAnimeList * My Church * My Heritage * My Life * My LOL * My Opera * MySpace * My Yearbook *

Masza-klasa.pl * Netlog * Nettby * Nexopia * NGO Post * Ning * Odnoklassniki * OKCupid *One Climate * One World TV * Open Diary * Orkut * OUT Everywhere * Partner Up * Plaxo *Passportstamp * Pingsta * Playahead * Playboy U * Plurk * Present.lv * Qapacity * Quarter-

Life * Qzone * Ravelry * Renren * ResearchGate * Reverberation * Ryze * Scispace * Shelfari *Skyrock * Social GO * Social Vibe * Sonico.com * Soundpedia * Stickam * StudiVZ * Super

Nova.com * Tagged.com * Talent Trove * Talkbiznow * Taltopedia * TraveBuddy.com * Travel –Lertspoint.com * Tribe.net * Trombi.com * Tuenti.com * Tumblr * Twitter * V Kontakte * Vam-Pirefreaks * Viadeo * Vox * Wakoopa * Wasabi * Wayn * WebBIographies * WeOurFamily *

Windows Live Spaces * Wiser Earth * Xanga * Xing * Xt2 * Yammer * Hyves *

The utilization of an online service, platform, or site that focuses

on the building and reflecting of relations among people.

SOCIAL NETWORKING

13

Blogs

Photo Sharing

Video Sharing

Tagging

Chat Rooms

Message Boards

Social Networks

Widgets

Podcasts

From Media

NewsArticles

News Reports

Lined Paper

LunchBreaks

BulletinBoards

CoffeeBreaks

Filing/ Labeling

WatchNews

PhotoAlbums

to Social Media

From Media SOCIAL MEDIUM –

a means for interaction, using accessible and scalable techniques, through web-based

technologies, to make monologues into

dialogues.

14

Expectations of Privacy

TMI

Online Business Relationships

24-7 access to the Internet

Third Party Management (Cloud Computing)

EMPLOYEE ISSUES WITH SOCIAL MEDIA AND NETWORKING

15

75% of employers use social

networking sites such as Facebook, MySpace, or Twitter to research job candidates, according to a CareerBuilder.com survey. 

70% of employers reported having refused to hire candidates based on content found on those sites. 

Even the Florida Board of Bar Examiners  suggested that bar applicants' web postings may reflect an “applicant's character and fitness not readily observable through the formal interview and application process.”

EMPLOYEEISSUES WITH TECHNOLOGY

16EMPLOYER MONITORING AND EXPECTATIONS OF PRIVACY

Employees should not expect privacy in their emails or Internet use at the office, or even at home where the workplace is implicated.

Employees should not have an expectation of privacy in Social Networking sites, such as Facebook.

However, if you do not have a policy or enunciate that policy, and a notice of monitoring, you may not be able to enforce it.

17EMPLOYER MONITORING AND EXPECTATIONS OF PRIVACY

An employer’s unauthorized search of employees’ private MySpace page is a violation of the Stored Communications Act. Pitrylo v. Hillstone

Accessing personal webpages without authorization of the employees involved (i.e., getting access from a coworker) is not consent. Pitrylo.

An employer’s accidental review of workphone texts, in connection with a different investigation, may be permissible, even where the employee had an expectation of privacy in the texts. Quon v. City of Ontario.

18Individuals generally possess a

reasonable expectation of privacy in their home computers.”).. Crispin v. Christian Audigier, Inc.,

There is a four step test for social media and policy “violations”:Did the employer have a policy

regarding the use of internet services in the workplace?

Did the employer place employees on notice of its intent to view content?

Did the employer actually follow its own policies?

Id.

EMPLOYER MONITORING AND EXPECTATIONS OF PRIVACY

19Copyright 2010 (c) Deirdre J. Kamber

20UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

How to handle the tough ones:

Prepare ahead of time – follow best practices IN the workplace.

Have relevant policies that are up to date and applicable.

Use your practices.

Policies

Practices

Better results

21

How to handle the tough ones:

Don’t do the PIMP MY RIDE version of policies.

Decide strategy up front. Are you going to fight this? What happens, pro and con, if you lose?

If you used policies, bring them along

Don’t try to apply policies after the fact

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

Don’t try to apply policie

s

retroactively

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

22

Have signatures for employee handbooks

Employees are not all bad or all good; avoid the extremes

If you are testifying, make sure you’re credible

Employees are not

All bad or all good

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

23

There is power in numbers. But don’t take it too far.

If you lose, it isn’t the end of the world, in most cases, unless the decision is really unfavorable.

If you lose, and you chose to appeal it to the UCBR or to court, be ready for anything.

THERE IS POWER IN NUMBERS

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

24

Don’t bring every piece of paper on earth; think about whether each one could help or hurt you.

Know your referee’s rules.

Avoid “emotional” appeals.

Anger AppealBad

Result

25On social media:

Have your policies in place

Use both your SNAPs and your Code of Conduct policies

Don’t just cut and paste webpages

Get authorizations

Have your chain of custody ready

Prep Work Results

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

26On social networking:

Apply policies evenly and non-discriminatorily

Do what you say you are going to do

Write up employees when you find out about off-duty conduct relating to the company

Decide how serious the infraction is and be prepared to defend your disciplinary decisions

Prep Work Results

UNEMPLOYMENT COMPENSATION(UC): BEST PRACTICES

UNEMPLOYMENT COMPENSATION: FIGHTING THE HARD CASES

Questions?

Comments?

Deirdre J. Kamber, Esq., CHP

[email protected]

610.797.9000 ext. 383

27Copyright 2010 (c) Deirdre J. Kamber