William G. Madsen, Madsen, Prestley & Parenteau LLC A. Robert Fischer, Jackson Lewis LLC CBIA’s Mid-Year HR Update Workplace Privacy in the Electronic World

Issues To Be Discussed  The law of privacy  Managing social networking and other computer use  Employer/employee rights and obligations 2Copyright 2010 Jackson Lewis LLP

3 The Law of Privacy  Intrusion of Seclusion  Misappropriation of Name or Likeness  False Light  Public Disclosure of Private Truthful Facts

Managing Social Networking and Other Computer Use

Social Media and Other Computer Use at Work? Facebook Twitter Linked In MySpace Texting s Instant messaging Blogs 5Copyright 2010 Jackson Lewis LLP

Issues: Negligent hiring/supervision Divulgence of trade secrets or proprietary information Hostile work environment or discrimination Disclosure of non-public information that can subject employer to liability under securities laws Reputational harm to employers Breach of privacy Negative Publicity – Disgruntled employees can easily and immediately post negative commentary about an employer 6Copyright 2010 Jackson Lewis LLP

Privacy on Blogs, IMs and Social Networking Sites  Currently unclear whether an employee has a reasonable expectation of privacy in blogs or IMs  Courts have split on whether there is a reasonable expectation of the privacy of the content on third-party servers (e.g., web- based accounts) 7 Copyright 2010 Jackson Lewis LLP

City of Ontario v. Quon – Privacy Standard Regarding Electronic Communications When Police Sergeant Jeff Quon sent sexually explicit text messages on his pager issued by the police department, he probably did not foresee those messages becoming the subject of a Supreme Court case. In a unanimous decision, the Supreme Court held that the search of Quon's text messages, sent or received on his department issued pager, was reasonable and did not violate Quon's Fourth Amendment rights. The Supreme Court did not resolve the parties’ disagreement over Quon's privacy expectations, and instead disposed the case on the narrower grounds of the reasonableness of the search. 8Copyright 2010 Jackson Lewis LLP

Employer / Employee Rights and Obligations National Labor Relations Act- Section 7 of the NLRA guarantees employees the right to “self-organization to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for purpose of collective bargaining or other mutual aid or protection.” o Employees who IM or blog about their working conditions or employer may be protected under the NLRA o Employees have a right to engage in "concerted activity“ o Must be engaged in for the purpose of collective bargaining or other mutual aid or protection o Applies to both union and non-union employees 9Copyright 2010 Jackson Lewis LLP

Legal Constraints On Disciplining Employees For Online Activity Unlawful Restrictions: Statement that prohibit the sharing of information concerning other employees, such as wages, hours and terms and conditions of employment. Lawful Restrictions: o Prohibition on disclosing confidential company business information and documents; prohibition on disclosing confidential employee information o Prohibition of conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with the Company’s employees 10 Copyright 2010 Jackson Lewis LLP

11Copyright 2010 Jackson Lewis LLP