What’s in a “Like”?

A big part of why I am so intrigued by social media and employment law is because of the extent of information people are willing to share with others about themselves through these mediums. One way this can be accomplished is through the “like” feature on Facebook. Facebook describes the “like” feature as “a way to give positive feedback or to connect with things you care about on Facebook.” Once someone hits the “like” button, a caption to the content indicates his or her positive affirmation.

Consumer Reports (p. 28, June 2012) recently featured the extent to which people “like” things on Facebook. A national survey of active Facebook adults revealed that over the previous 12 months, 4.7 million “liked” a page pertaining to health conditions or treatments, 2.3 million “liked” a page regarding sexual orientation, 7.7 million “liked” a page relating to religious affiliation, and 1.6 million “liked” a page pertaining to a racial or ethnic affiliation. I raise these statistics with employers when I talk about social media because  these all relate to protected class statuses under the Wisconsin Fair Employment Act, Wis. Stat. § 111.31 et seq. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.

A recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a “like” in a First Amendment context. In Bland  v. Roberts, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff’s election opponents in an election the incumbent sheriff ultimately won. Two of the plaintiffs claimed that the retaliation was due, in part, to the fact that they expressed support on the election opponent’s Facebook page. The court found the only evidence of a “statement of support” was through each individual “liking” the challenger’s Facebook page. The court found that a “like” was not sufficient speech to support the plaintiffs’ freedom of speech retaliation claim. The court explained:

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Illinois Prohibits Employers From Seeking Social Networking Passwords

On August 1, 2012, Illinois Governor Pat Quinn signed into law a bill that prohibits employers from requesting or requiring employees or prospective employees from providing “any password or other related account information” to gain access to the individual’s social networking account. Ill. Public Act 097-0875. By enacting the legislation, Illinois joins Maryland as states that prohibit employers from obtaining social media account password information. The law amends the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55, and is effective January 1, 2013.

Illinois’ new social media legislation confirms that employers maintain the right to create lawful workplace policies that regulate the use of computer equipment, e-mail, and internet use. Moreover, the law also allows employers to monitor employee use of the employer’s electronic equipment and e-mail. Employers also may still obtain publicly available information concerning employees or prospective employees under the new law.

As part of the Right to Privacy in the Workplace Act, the law is subject to investigation and enforcement by the Illinois Department of Labor. Potential damages under the law include reasonable attorney’s fees if the violation is found to be willful and knowing.

This legislation comes in response to public criticism of reported incidences of employers seeking social media account password information for purposes of evaluating position applicants. Illinois employers who currently engage in such practices should be aware that any hiring policy or practice that requires applicants or employees to reveal such information will be a violation of Illinois law after the end of the calendar year.

Cross-posted to General Counselor.

 

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The Proper Procedure for Facebook Discovery, Part I

An individual is involved in a civil lawsuit against someone — a tort suit, an employment discrimination suit, a civil rights suit — and the opposing party requests production of everything in his or her Facebook account during discovery. The individual refuses, or produces some material but not others, and the requesting party moves to compel. How should the court respond?

This situation is coming up increasingly frequently, and it appears to be confounding in many cases for everyone involved — judges, attorneys, and the parties themselves. Many individual litigants are no doubt surprised by such requests; not being familiar with the ordinary rules of discovery, they may not have realized that suing someone, or being sued, means that all relevant documents must be turned over — which might include every half-witted Facebook post or photograph pertaining to some issue germane to the lawsuit (such as, e.g., the plaintiff’s emotional well-being). Businesses have lived for years with the knowledge that a single wayward email from the CEO can sink a lawsuit; now individuals are experiencing the litigation effects when every decision or even fleeting thought is permanently recorded and archived. And destroying relevant material after the prospect of litigation becomes clear just makes matters worse.

But individual parties are not the only ones surprised by the interaction between civil discovery rules and social networking materials. Judges and attorneys often seem not to know exactly how to categorize the materials on a site like Facebook: is it all one relevant document? Multiple documents? How should the material be produced? Can the material be sought directly from the site via subpoena? Is the material shielded from discovery in any way? This confusion has led in some instances to court orders I’ve criticized as requiring overly broad production of social networking materials, with parties unnecessarily compelled to turn over entire accounts or even, in some cases, passwords to those accounts so opposing counsel can peruse them at will.

By and large most of those cases have been state cases, but federal courts are starting to issue opinions on social networking discovery as well. Over at Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani points to a recent decision from a magistrate judge in the District of Nevada, Thompson v. Autoliv ASP, Inc., No. 09-cv-01375, 2012 U.S. Dist. LEXIS 85143 (D. Nev. June 20, 2012). In Thompson, the judge ordered production of 5 years’ worth of Facebook and MySpace posts, photographs, and other materials to opposing counsel for its review. On a quick read Thompson might appear to fit into the category of overbroad decisions, but, despite an insufficient number of caveats in the opinion for my taste, I don’t believe it is.

I want to spend this post detailing exactly what’s wrong with an order compelling production of an entire social networking account, and why I think courts issuing such orders are going off the rails.

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