“Big Data” means different things to different people. In a March 7th, speech, Virginia Rometty, Chairman, President and CEO of IBM, provided her take on “Big Data” and I thought she relayed a number of interesting points. Her speech, entitled Competitive Advantage in the Era of Smart, describes a new way for private and public organizations to compete in an era of “Big Data” – data in the clouds, data on smart mobile devices and social networks, and corporations mining data for insights and the competitive edge. To her, “Big Data” is the next natural resource, like oil or electricity, to propel this country forward as everyone will have access to cloud infrastructures, mobile devices and social networks.
Ms. Rometty suggests three “principles of change” – change, not just in technology, but in an evolution of an organization – a cultural way of thinking and acting. All organizations make decisions about capital, people, products and services; create value for those individuals and entitles; and deliver value to its customers. Ms. Rometty laid her principles of evolution out as:
- Decisions will be based not on “gut instinct,” but on predictive analytics;
- The social network is the new production line; and
- Value will be created not for “market segments” or demographics, but for individuals.
Let’s look at each principal enunciated by Ms. Rometty.
Principle 1: Decisions will be based not on “gut instinct,” but on predictive analytics
In today’s global community, Ms. Rometty believes that enterprises should move to an analytical decision making model. Why is that? Because every two days we generate the equivalent of all of the data produced up to 2003. With the volume of this data and today’s raw computing power organizations can and should harness this duality to produce accurate and insightful knowledge-based decisions.
Ms. Rometty believes that organizations must use analytical decision-making models to reduce errors, and inadvertent or damaging outcomes. As proof, she pointed first to a global survey of top risk managers that identified the #1 method for identifying and assessing risk – senior management intuition and experience. And second, to the greatest recession of our lifetime –which many believe was caused by an inability to see and manage risk. To illustrate her point, Ms. Rometty cautioned that many of our decisions are subconsciously influenced by our biases – relying too heavily on a single piece of information we have internalized. For example, a doctor hears a patient disclose two or three symptoms out of many, and then makes a diagnosis while discounting those symptoms that do not fit into her predetermined category. The key point to this analytical decisions making model is that:
“[t]his isn’t just a change in tools. It’s a change in mindset and organizational culture. Which is also the greatest challenge it poses: the need to “unlearn” deeply engrained professional and leadership assumptions: . . . How you manage enterprise risk . . . and how you manage an enterprise.
Ms. Rometty believes the mentality will be not just to learn new skills, but to learn a whole new job. So will we be willing to do that? And how quickly can such predictive analysis be created? Will executives be willing and able to wait for that analysis – I personally don’t think we are there yet. It certainly seems that we all are relying upon gut instinct every day…this would certainly be a hard thing for me to overcome.
Principle 2: The social network is the new production line.
Create intellectual capital! What does that even mean? According to Ms. Rometty, the vast amount of data now produced, the power of the computers, and today’s shared connectivity have now created the means for the production of knowledge – with social networks as the new production line. “In a social enterprise, your value is established not by how much knowledge you amass, but by how much knowledge you impart to others.” So how do you produce knowledge?
The long-term objective is an enterprise expertise model where information is analyzed automatically, content is organized in relevant topics and personalized action plans are created – and where rewards are shaped by who contributes the most and best ideas.
The goal is not to just share information – the connectivity – but actually create experts in an organization. Anyone in an enterprise can become an expert. Could every company, however, hire, compensate, evaluate and promote employees based upon the concept of “shared and catalyzed knowledge”? Ms. Rometty believes most can and will. Every IBM employee now has a social network page, and access to vast amounts of internal and external information sources, blogs and wikis – the ability to create intellectual capital. According to Ms. Rometty, IBM is working toward a future -
in which all IBMers will be rated by their peers and profession, based on how good they are at sharing their knowledge . . . how good they are at making it useful, consumable . . . how well they contribute to the community and to [their] clients’ needs and experiences.
I certainly agree that the ability to communicate, contribute and share is going to be a key factor to success in future organizations!
Principle 3: Value will be created not for “market segments” or demographics, but for individuals.
The rapid emergence of Big Data, social networks, mobile communications, and location tracking software has lessened the inherent value of segmenting consumers – whether public consumers of government services or private consumers of business. “I” and “You” bear today’s fruit. It’s the age of the individual. Today’s technology has created the ability for enterprises to track individual wants, needs and desires, and then to encapsulate that into a good or service targeted to that specific consumer.
In her speech, Ms. Rometty gave the example of how President Barack Obama’s re-election campaign used Big Data analytics and behavioral science to understand how individual voters in key states might react.
Using dynamic modes powered by voter contact data, the campaign’s Analytics team ran 66,000 simulations each night to protect who was winning every battleground state. They used this data to allocate resources-funding, campaign workers, outreach – in real times. The final simulations of the Ohio vote were accurate to within 0.2 percent.
Companies now must recognize the emergence of this capability to remain competitive in the global market place. Forward-thinkers will use this data and computational ability to actually learn what “You” and “I” want – not what some organization deems “we” want. Ms. Rometty believes, in the end, that organizations and consumers will offer each other measurable value – information about “You” and “I” in exchange for a benefit in return.
Virginia Rometty concluded by saying:
[t]he challenge is not the technology. The challenge, as always, is culture . . . changing our entrenched ways of thinking acting and organizing. . . .We have, in Big Data, a vast new natural resource, as well as the means to mine it for value. And that is unleashing not only insight and knowledge, but new ways of creating business and societal value . . . and new ways of working that are more flexible, innovative, collaborative, humane.
Erik Brynjolfsson, director of the Center for Digital Business at MIT’s Sloan School of Management, echoed Ms. Rometty’s sentiments. (see New York Times, I.B.M.s Rometty on the Data Challenge to the Culture of Management). “The technology has been available for a few years now to create a management revolution based on big data, and now we’re beginning to see more and more companies undertake the much harder job of reinventing their business process and culture to take full advantage of those technologies.” Based upon the number of targeted ads that we are seeing, I am pretty confident a number of organizations have embraced this last concept!
So what does this mean for you as an individual or an organization? Do you agree that you should disregard your gut instinct and replace it with a “computerized” risk analysis? Do you share and create knowledge and information to increase your market share and demonstrate your expertise – whether via social media or otherwise? And finally, what do you think of the individually targeted culture being created by all of the data mined by organizations? I admit that I don’t know where I stand. As always, we welcome your input!
We’re extremely pleased to have another guest blogger this week – our colleague, Karen Schanfield. Karen is a shareholder in Fredrikson & Byron’s Employment & Labor Law Group, and, among other accolades, has been named by her peers as one of the Top 40 Labor and Employment Law Attorneys and one of the Top 50 Women Attorneys in Minnesota. Thank you, Karen, for this post!
In its most recent ruling on the subject, the National Labor Relations Board again concluded that terminating non-union employees for postings on Facebook violated the National Labor Relations Act. The case, Design Technology LLC dba Bettie Page Clothing, had a couple of interesting twists.
First, the employer argued that it had been “trapped” into firing the employees (the theory being that the employees were deliberately trying to get fired), a claim the NLRB found “nonsensical.” Second, the NLRB learned in the course of the proceedings that the company had a rule prohibiting employees from discussing their salaries with one another, a clear violation of the Act. Consequently, the NLRB not only ordered reinstatement with backpay for the three employees, but required the employer to rescind or replace the policy and post a notice prepared by the NLRB at all locations where the policy applied.
So, what actually happened? Well, an employee at one of Bettie Page Clothing’s stores in San Francisco asked the store manager if the store could close at 7 p.m. like other stores in the area, rather than 8 p.m., saying that employees felt unsafe in the neighborhood after other stores had closed. When the request was denied, the employees complained to one another and others on Facebook. In addition to comments like “bettie page would roll over in her grave” and “It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so,” one of the employees posted:
“hey dudes, it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all that crap that’s going on that’s in violation [sic] see you tomorrow!”
All three employees were terminated. The Board concluded that two of the employees were engaged in protected concerted activity when they presented their concerns to the store manager and owner and that the Facebook postings were a continuation of that effort. It also went a step further, holding that the postings among all three employees would have been protected concerted activity even without the prior conversations with management.
The Board also made short shrift of the employer’s “discharge conspiracy” theory. Not only did the Board find that there was no evidentiary support for the argument, it held that even if the employees were acting with the hope of being fired, Bettie Page had not shown that their actions were not protected.
The takeaway? The NLRB remains keenly interested in social media and its impact on the rights of both non-union and union employees. Employers are well advised to review their handbooks, social media policies, and practices to ensure that they do not inadvertently run afoul of the NLRA.
We haven’t seen a lot of Facebook firing cases coming out of the National Labor Relations Board (“NLRB”) recently, but on April 3, 2013, the NLRB’s General Counsel released an advice memorandum that discusses one such case. In that case, the charging party worked as a hostess at a bar/restaurant called Character’s Pub. After new owners took over, the transition did not go well. Two servers were terminated; another staff member quit; and others were upset over a new rule that servers were prohibited from discussing the menu with cook staff and could only discuss menu issues directly with the head chef.
Meanwhile, the employees had a private group Facebook page where they “talked” about work. After the new owners took over, complaints on the private page increased. A few days before the Charging Party was fired, she posted, “I just want to cry right now. Depressing … no regulars, no staff, no fun!! I miss everyone. I didn’t think they’d f*** it up this badly!!!”
When the employee got to work a few days later, the owners of the restaurant met her outside the restaurant. They told her, “We saw the Facebook page,” and terminated her employment. The employee then brought an unfair labor practice charge alleging the comments on the private group Facebook page were protected concerted activity under the National Labor Relations Act (“NLRA”). The charge was submitted to the General’s Counsel office for advice.
The General Counsel found that the posts were protected because:
- The employee complained about the terms and conditions of her work;
- She directed the complaints to a group of employees; and
- The complaints were “part of their continuing discussion of shared workplace concerns revolving around changes in the employee’s terms and conditions of employment caused by the new ownership.”
While perhaps there aren’t any particularly new or unusual facts in this case, this decision confirms that the NLRB is taking a consistent line – when an employee is terminated for complaining about management or changes in the workplace and the complaints are made to other employees who respond in some way – the NLRB will find the social media posts to be protected and the termination unlawful. The case is also a good reminder that the NLRB is still focused on social media discipline and discharge cases and that employers need to be careful when taking action against an employee based on social media posts.
Perhaps more importantly, while the case doesn’t explain how the employer happened to see the posts, since they were on a private group page, the case serves as another reminder that making employment decisions based on information on a private site is extremely risky. There also could have been privacy implications caused by the employer’s viewing of the posts.
Have you disciplined or discharged an employee due to social media posts? If so, what steps did you take to analyze whether the posts were protected or to determine whether you should have had access to the posts in the first place? As always, we would love to hear from you.
In an update to our recent post, Hijacked Identity or Legitimate Business Practice? LinkedIn Lawsuit Soon To Be Decided By Court, we now have the Judge’s Order in the Eagle v. Edcomm case. As you’ll recall, when the plaintiff, Linda Eagle, was terminated, her former employer, Edcomm, took over her LinkedIn account by using her username and password, replacing her picture with that of another employee, but leaving Eagle’s honors, awards, recommendations and connections. Eagle claimed she was wrongfully locked out of the account and that Edcomm hijacked her identity and invaded her privacy.
Eagle, representing herself at trial, managed to prevail on three of her claims – misappropriation of identity, invasion of privacy, and violation of a Pennsylvania statue prohibiting unauthorized use of someone’s name – but she was not able to prove that she suffered any damages.
Her theory of damages was creative – she used her average sales per year divided by the number of contacts she maintained on LinkedIn to arrive at a dollar figure per contact, per year. She then divided that figure by 4 to represent that for one-quarter of the year she did not have full access to her LinkedIn account. Based on those calculations, Eagle claimed she had suffered damages in excess of $248,000.
The court, however, was not convinced. Creative math aside, the court noted that Eagle “failed to point to one contract, one client, one prospect, or one deal that could have been, but was not obtained during the period she did not have full access to her LinkedIn account.” As a result, she couldn’t prove her damages with the required level of certainty.
In addition to the damages issue, one of the other interesting aspects of this case was the question of who actually owned Eagle’s LinkedIn account?
The Court noted that Edcomm did not have a policy in place informing the employees that their LinkedIn accounts were the property of the employer, and (as one of our commenters to our previous post noted), it was questionable whether such a policy would have been binding in the first place because it contravenes LinkedIn’s “User Agreement” which states that the account belongs to the individual (“If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us.”).
Additionally, take a look at these emails Edcomm sent internally (with Eagle as one of the recipients) discussing ownership of Eagle’s LinkedIn account:From: Cliff Brody Sent: Tuesday, March 2, 2010 1:36 PM To: Linda Eagle; David Shapp; Kathy Luczak Subject: few loose ends David…. Can you look into what our requirements/responsibilities are as far as LinkedIn accounts and former employees. CB Clifford G. Brody Founder & Chief Executive Officer The Edcomm Group Banker’s Academy From: David Shapp Sent: Tuesday, March 2, 2010 2:17 PM To: Cliff Brody; Linda Eagle; Kathy Luczak Subject: few loose ends I think we can leave it up forever and mine the information contained within as long as we do not pretend to be her. The company/employer owns all data on its hardware, including email archives. The employee has no rights at all in his email identity. Ordinarily, as a courtesy, employers tend to keep old accounts active for a limited time in order to avoid rejecting business-related communications, and forward personal emails to the former employee. There would potentially be an issue if the employer used the former employee’s email to perpetuate a false impression that the employee remained with the company, but simply mining the incoming traffic is certainly within the employer’s rights. David David Shapp Partner & Senior Vice President The Edcomm Group Banker’s Academy From: Cliff Brody Sent: Tuesday, March 2, 2010 3:23 PM To: David Shapp; Linda Eagle; Kathy Luczak Subject: few loose ends What about LinkedIn – not on our hardware. The question is who really owns that account? Ideally it would be us. We could leave it up as-is and she would have to create a new one. CB Clifford G. Brody Founder & Chief Executive Officer The Edcomm Group Banker’s Academy From: David Shapp Sent: Tuesday, March 2, 2012 3:53 PM To: Cliff Brody; Linda Eagle; Kathy Giola Subject: few loose ends We do. It was created with an email account that is ours, on our computers, on our time and at our direction. She cannot use that account because she does not own the email address that opened it. I think as long as we just read from it and do not write to it, we are not breaking any laws. Same thing with her email account – as long as we only read and do not write, we are within our rights to do so. David David Shapp Partner & Senior Vice President The Edcomm Group Banker’s Academy
Finally, to add one more wrinkle, Mr. Brody, who seems to have understood the bigger issue regarding who actually owned the account, appears to have left Edcomm at some point because he is now Eagle’s business partner and he testified on her behalf at trial regarding Eagle’s damages theory. An interesting case.
Do you have a plan in place to address ownership of social media accounts, or the content contained on those accounts – including contacts/connections? Do your policies and agreements give you the right to the busines content (vs. purely personal content) on the site, even if you do not have the right to take the account over from the employee? If you have social media accounts being managed and run by one employee, have you taken steps to insure that you will control that site once the employee leaves? This case demonstrates that a proactive approach to managing social media sites used to promote your business will go a long way to protecting your investment after an employee departs.
Question: What happens when a company “hijacks” a former employee’s LinkedIn profile? Answer: In some cases, that employee sues for identity theft and invasion of privacy. The bigger question right now is whether that employee will prevail – particularly when she pursued her case without the assistance of a lawyer. Some of you may recall the Linda Eagle v. Edcomm case – which centered on a former employee’s claims that the company wrongfully misappropriated her LinkedIn account after she left the company.
That lawsuit was tried to the United States District Court for the District of Pennsylvania in November 2012. The Court heard oral arguments on post-trial motions on Wednesday and promised to issue a decision soon. So, while we are waiting for that decision, let’s look back to the facts which prompted the lawsuit.
The lawsuit centered on the following allegations. Eagle worked for Edcomm in an executive position. When she was terminated, Edcomm took over Eagle’s account by using her username and password, replacing her picture with that of another employee, but leaving Eagle’s honors, awards, recommendations and connections. Eagle claimed she was wrongfully locked out of the account and that Edcomm hijacked her her identity and invaded her privacy.
Eagle admitted that she created and used her account to promote Edcomm’s banking education services; foster her reputation as a businesswoman; reconnect with family, friends, and colleagues; and build social and professional relationships. While she was employed with Edcomm, she admitted another employee assisted Eagle in maintaining her LinkedIn account and that employee had access to Dr. Eagle’s password.
Edcomm had a different story. Edcomm encouraged its employees to use LinkedIn. It further urged employees to create LinkedIn profiles, with Edcomm templates, and with Edcomm email addresses. Edcomm, you see, asserted at trial that its policies “claimed ownership” over any LinkedIn account created with an Edcomm email address; that is, the LinkedIn account (and everything contained there) was the property of Edcomm. (We are not privy to that policy so can’t comment on its effectiveness.)
Edcomm claimed that because of this policy, it could “mine” all of the contacts or information in a former employee’s LinkedIn account, so long as Edcomm did not steal that former employee’s identity. Eagle had created her LinkedIn account with an Edcomm email address and used Edcomm resources to maintain and supplement her LinkedIn profile. Finally, Edcomm asserted that when it took over Eagle’s LinkedIn profile, it replaced her picture, her experience, education, etc. and that no one would have been mistaken for that of Eagle’s. Edcomm also later gave Eagle back her account.
I have to admit that Edcomm’s side of the story sounds pretty valid. Yet, Eagle still sued, asserting the following claims: 1) violation of the Computer Fraud and Abuse Act; 2) violation of the Lanham Act; 3) invasion of privacy for misappropriation of identity and publicity; 4) identity theft; 5) conversion; 6) tortious interference with contract; 7) civil conspiracy; and civil aiding and abetting. Edcomm then asserted counterclaims for misappropriation, unfair competition and conversion (of a laptop computer).
In an October 4, 2012, Order, the Court dismissed the Computer Fraud and Abuse and Lanham Act claims, but permitted the state law claims to go to trial. In its post-trial submissions, Edcomm requested that the Court dismiss Eagle’s claims and further requested that the Court award Edcomm $41,000.00 in damages against Eagle. We will see how it turns out.
So from these facts, what could Edcomm have done better and what did Edcomm do right? Here are my takeaways:
1. Define (via agreements and policies) the difference between personal and business social media sites. If you want to retain the LinkedIn profile after an employee departs, make sure that employee knows he/she does not own that profile. Edcomm probably could have done a better job with this.
- If you do this, some employees will not choose to create accounts that you can later claim as your own. You may choose instead to do this on an individual basis for certain employees who have a big social media presence – those who are the “face” of your company.
- When in doubt, address the ownership as soon as you learn about a site that might impact both personal and business. Don’t wait until the employee departs the company.
2. Insure that you have administrative rights and passwords to all sites designated as “business.” Many lawsuits arise because employees leave and convert the sites for personal use, refusing to return the site or administrative access to the site. Edcomm had the administrative passwords, but there was a question about whether they were entitled to use them (see number 1 above)
3. Insure that you have defined (via agreements or policies) that the company not only has the right to access the site, but also owns all site content. That is, you want to preclude an employee’s right to claim ownership to content after the fact (other than clearly personal information, such as name, education, experience, awards, honors, etc.). It is not clear from Edcomm whether this aspect was appropriately defined.
4. Know that recent legislative movements may impact the right to access or otherwise demand access to sites that contain both personal and business-related information. (See Emerging Issues in Social Media – The Status of Social Media Password Legislation)
In short, it is always better to clearly define ownership of content and the social media site before a lawsuit is filed. If you have had issues with ownership of your social media sites, we would love to hear your story.
Given Facebook’s seemingly endless changes to its privacy settings, the most recent being in December, as well as Facebook’s “newfangled search tool, [which] can allow strangers, along with ‘friends’ on Facebook, to discover who you are, what you like and where you go,” have you taken steps to make sure the information you want to be private really is private? How do you make sure that your friends who are less concerned about privacy don’t inadvertently “suck you into their orbit”?
Well, aside from giving up Facebook entirely (or perhaps simply taking a break for a while, which apparently 61% of adult Facebook users have done at some point, according to a new Pew Research Center study), the New York Times recently published an article called, Staying Private on the New Facebook, that includes some helpful tips and new tools that can help you maintain at least a modicum of privacy.
The author, Somini Sengupta, suggests asking yourself these basic questions:
- How would you like to be found?
- What do you want the world to know about you?
- Do you mind being tracked by advertisers?
- Whom do you want to befriend?
Of most interest to me as an employment lawyer was the question of “what do you want the world to know about you?” As the author points out, depending on how you have your privacy settings adjusted, you may be broadcasting to the world basic facts like your gender and birthdate. While you may not care about keeping this information private, we’ve talked before that employers who use social media to vet job applicants may be advised to screen out this kind of information since gender and age are protected by state and federal anti-discrimination laws. (See The Summary – Social Media Best Practices in Recruiting, Sourcing and Hiring.)
Aside from disclosing protected class information, what about all those pictures you’ve seen on Facebook of your friends (or yourself) having a bit too much fun on the weekend? Well thank goodness there’s an app for that. A team of college students have created a tool called Simplewash that searches for “profanity, references to drugs and other faux pas that you do not necessarily want, say, a law school admissions officer to see.” There’s also a tool called Socioclean. While these tools only work for Facebook, both sites appear to be working on adding other social networks.
While taking the time to adjust privacy settings and scrub your social media content until it’s squeaky clean may not be very fun, it’s definitely worthwhile. It is also wise to remember that your interaction with others on Facebook opens up some of your information to “friends” of your friends and even the public, depending on how your friends adjust their privacy settings. So, how do you protect your privacy online? If you have any tools or tips for safeguarding privacy online, we’d love to hear from you.
Discovery of Social Media Accounts Might Be a Toss-up if Requests are Too Broad – Two Conflicting Federal Points of View
Courts continue to ponder questions about how far reaching discovery of litigants’ social media accounts should be. You may recall that we wrote about this in Can the Court Force You to Turn Over Your Facebook Account? The Short Answer. Yes. Recently, a magistrate from the Central District of California issued an order in Mailhoit v. Home Depot U.S.A., Inc. which again analyzed this very issue. So why should we be interested in another social media discovery case?
Well, the case is strikingly similar to EEOC v. Simply Storage Mgmt., LLC., 270 F.R.D. 430 (S.D. Ind. 2010) – a case where the Court granted broad discovery of social media content. The two cases include similar allegations, similar claims of mental and physical injuries, and more importantly, almost identical social network discovery requests. In fact, counsel for Home Depot used the wording from the Simply Storage requests when drafting the defendant’s discovery requests. They are as follows:
- Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state;
- All social networking communications between Plaintiff and any current or former Home Depot employees, or which in any way refer [or] pertain to her employment at Home Depot or this lawsuit; or
- Any pictures of Plaintiff taken during the relevant time period and posted on Plaintiff’s profile or tagged or otherwise linked to her profile.
So then why is the Home Depot case noteworthy? Because the judges in each of these cases approached the discoverability issue in completely different ways. In Home Depot, the magistrate looked to restrict and limit the scope of social media discovery (refusing to compel production of documents from Request Nos. 1 and 3 above), while the magistrate in Simply Storage reasoned that discovery of information from social media sites must be “extremely broad” for the parties to acquire and/or refute evidence.
So what did each Court say about the discoverability of social network site content?
The Simply Storage Decision. The magistrate in Simply Storage found that discoverability of social networking sites (“SNS”) was novel, but that it was not “unique to electronically stored information or to social networking sites in particular.” The Court held “the challenge is to define appropriately broad limits (emphasis added) – but limits nonetheless – on the discoverability of social communications in light of a subject as amorphous as emotional and mental health, and to do so in a way that provides meaningful direction to the parties.”
Specifically, Simply Storage found that “it is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.”
The Court rejected, as too restrictive, the EEOC’s view that the claimant should only have to produce communications that directly reference matters in the complaint. “This standard likely would not encompass clearly relevant communications and in fact would tend only to yield production of communications supportive of the claimants’ allegations. It might not, for example, yield information inconsistent with the claimants’ allegations of injury or about other potential causes of injury.” The magistrate remarked that not many claimants, if any at all, would post non-events, such as “My supervisor didn’t sexually harass me today,” on their social network sites. A definition of relevant SNS content must, therefore, be broader than that proposed by the EEOC, and subsequently by the Home Depot court. In short, Simply Storage ruled that any posts that “reveal, refer or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state” should be discoverable.
The Court in Simply Storage did acknowledge that disclosure of SNS communications might reveal sensitive or private information. The Court, however, ruled that this release is inevitable – “this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person.” As one judge observed, “Facebook is not used as a means by which account holders carry on monologues with themselves.”
In short, the decision in Simply Storage is in line with how we would expect a Court to rule on discoverability issues. To the contrary, the Home Depot decision is not.
The Home Depot Decision. The magistrate in Home Depot seemed to have a preconceived view point on how discovery requests for the defendant should turn out, or she may have simply misunderstand the breadth and scope of the potential relevant information contained nowadays in social network communications.
Indeed, the Home Depot court brushed aside the Simply Storage holding relating to the breath of discovery in severe emotional or mental injury cases. The court never acknowledged the nebulous nature of this type of evidence, or the difficulty a party has in documenting a claimant’s mental or emotional health. It did recognize that some of the SNS communications would likely be relevant. Despite this, the court ruled that, although the defendants modeled their discovery requests upon Simply Storage, those requests were not precise enough for the claimant to determine the type and scope of the information requested – therefore, the discovery requests were overly broad and vague. As noted, the Court refused to compel production of requests Nos. 1 and 3 above.
The End Result? So how does it work then for discovery of social media communications when a claimant alleges emotional and mental injury? Well, both courts agree that social network content must be relevant to a claim or defense for discovery. And further, that the mere fact that a claimant has made social media communications “is not necessarily probative of the particular mental and emotional health matters at issue.” Rather, the Home Depot and Simply Storage courts both agreed that it’s the substance of the communication on a social network site, and to whom it was made, that determines relevancy.
So then what should the procedure be for requesting a claimant’s social network communications? Even with the contradictory rulings from various courts, we believe it is reasonable to start with the discovery requests laid out in Simply Storage. The scope, as with any discovery, should be as precise as possible, with an eye towards demonstrating why this type of information is relevant to the particular claims or defenses. You should be ready to defend why your client should be entitled to broad discovery of social media content.
Has anyone been down this road before? Let us know what the court held. This issue will certainly be an up and down process until higher courts delineate specific guidelines for the parties, and even lower courts, to follow.
On December 14, 2012, the National Labor Relations Board issued its latest Facebook firing decision, affirming the administrative law judge ruling in NLRB v. Hispanics United of Buffalo, Inc. (See our original post, NLRB Judge Finds Employer Unlawfully Discharged Five Employees For Facebook Postings)
In Hispanics United, as you may remember, a group of employees complained on Facebook about one of their coworkers who had a habit of criticizing their job performance. The original poster wrote:
Lydia Cruz, a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?
Coworkers then responded with posts such as:
- What the f. .. Try doing my job I have 5 programs
- What the H…, we don’t have a life as is, What else can we do???
- Tell her to come do mt [my] f…ing job n c if I don’t do enough, this is just dum
The original poster then wrote:
- Lol. I know! I think it is difficult for someone that its not at HUB 24-7 to really grasp and understand what we do ..I will give her that. Clients will complain especially when they ask for services we don’t provide, like washer, dryers stove and refrigerators, I’m proud to work at HUB and you are all my family and I see what you do and yes, some things may fall thru the cracks, but we are all human love ya guys
Lydia Cruz-Moore, read the comments and posted, “Marianna stop with ur lies about me. I’ll b at HUB Tuesday…” When she got into work she went to her employer and complained that she was being harassed.
The employer determined that the Facebook comments constituted “bullying and harassment” of a coworker and violated their “zero tolerance” policy, so the employees were terminated.
After their termination, the employees filed an unfair labor practice charge, claiming their Facebook comments constituted “protected concerted activity.” The ALJ agreed, and now the Board has affirmed that decision.
Of all the Facebook firing cases before the NLRB, the Hispanics United case has been seen by many (including us) as being a bit of a stretch. The employees were posting about a coworker, not a supervisor, and the posts don’t really seem to indicate that the employees are planning to do anything about the situation (although the Board found that the posts showed that the employees “were taking a first step towards taking group action” because the employees has reason to believe that Ms. Cruz-Moore was going to report them to management).
Instead, as the dissenting member of the NLRB pointed out, the comments appear to be more like “venting” than a call for action.
While we tend to agree with the dissent (which unfortunately does not control), the Board’s decision in this case is yet another reminder that, as an employer, before you discipline or discharge an employee because of comments made on social media, you would be wise to stop, reflect, and do some analysis (hopefully with legal counsel) about whether the comments may actually be protected.
Have you addressed potentially harassing comments on Facebook between employees that don’t appear to be “protected concerted activity”? How have you handled similar situations? As always we welcome your input!
We have all read, relied upon or at least considered those online reviews that are attached to internet products and services – right? You know – the ratings, stars or “opinions” that represent a person’s experience with a product or service? But what do we really know about the truth of those reviews, or the circumstances that surrounded the business transaction? Nothing.
In fact, relying on such reviews is an act of faith. So what happens when an online review is not accurate, or the reviewer acts with bad faith in an attempt to ruin a business’s reputation? Where can that business turn for help?
Unfortunately, businesses often do not receive much help from the website itself. They might not even find an appeal process to request that the false negative reviews be removed from the site. In my experience, businesses have mixed luck when requesting that posts be removed. Best results are obtained when statements appear malicious or threatening, not merely untrue.
Internet review sites, like Yelp or Angie’s List, do not screen reviews and they certainly don’t (and really can’t) investigate the veracity of the statements, whether good or bad. In fact, the sites are protected by the federal Communications Decency Act which generally shields those types of websites from defamation suits relating to content posted by third parties.
So what can a business do? Well, one option could be to target the individual reviewer by bringing a defamation claim.
That is exactly what a Virginia contractor recently did. Christopher Dietz filed a $750,000 internet defamation lawsuit against Fairfax resident Jane Perez. Ms. Perez was unsatisfied with work performed at her residence so she took to Yelp and Angie’s List to voice her displeasure – even accusing the contractor of stealing jewelry. In his lawsuit, Mr. Dietz claims the negative comments devastated his business reputation and cost him $300,000 in business.
“The impact has been awful,” Mr. Dietz reported to the Washington Post, Virginia woman is sued over her Yelp review. “There is no one to protect businesses when people slam their name.” In some ways, the internet has made defamation much more damaging – a single false post can live forever in cyberspace, reaching millions of viewers, and causing untold harm. On Wednesday, the trial court judge issued a preliminary injunction order requiring Ms. Perez to edit her Yelp review.
It may be that internet defamation suits will increase in frequency as review sites, such as Yelp or Angie’s List, become more prevalent in our everyday consumer transactions – and results like this could encourage such suits (for good or bad).
But let’s all do a reality check – how big a deal is an online review? A 2011 Harvard Study quantified the effects of a positive Yelp review. The study found that a single star increase, on Yelp’s five-star rating system, among posts for Seattle restaurants led to a 5-9 percent growth in the business’ revenue.
Conversely, a one-star review can sometimes have catastrophic financial consequences. According to the Herald-Tribune, Online criticism sparks real world defamation lawsuit, Michael Rassel, owner of Razworks, a computer graphics company, found that a single person’s one-star review on Yelp dropped his annual income by 70 percent. One online tirade against him, according to Mr. Rassel, resulted from a customer wanting, and ultimately pressuring, him to provide extra services for free. The post called Mr. Rassel a “scam liar and complete weirdo.” “They see something like this on the first page of Google, they’re gone, they’re not even going to give me a second thought.”
But is litigation the answer? Mark Goldowitz, founder of the Public Participation Project, a group that monitors internet defamation lawsuits, sees the rise of internet defamation suits as a threat. “The suits can have a chilling effect on people’s willingness to share information,” Mr. Goldowitz told the Washington Post. “It does lead to people not posting reviews for fear of getting sued and to take them down when threatened by a lawsuit.”
Regardless of your position on whether litigation is a good idea, businesses still need to be able to respond to inappropriate, threatening or untrue statements posted online. Even Yelp notifies users that they can be held responsible for their online content. The Yelp Terms of Service provide:
You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone’s reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. . . .
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
So what would you do? Would you be prepared to bring legal action to put a stop to defamatory reviews that are harming your business? In our next post we will talk about how some doctors are doing just that by taking legal action to counteract negative reviews. Stay tuned!
Just when you thought that every news story these days must be fraught with calamity and strife….along comes a funny (ok, funny for a lawyer interested in social media) story in USA Today – Even When You Gotta Go, Social Media Goes Too – about how all things eventually change with technology. The story focuses on the rise of social media use, and a recent social media survey conducted by NM Incite – a joint venture between Nielsen and the consulting firm McKinsey and Co.
What could possibly be so humorous in a social media study?
Well, as the title of the USA Today story implies, the survey found that 32% of the heaviest users of social networks, ages 18-24, use social media while in the bathroom. This new sit down experience apparently transcends most ages. 28% of users ages 25-34 and 15% of 35-44 year olds use vital bathroom time to update their social networks. USA Today did not discuss the social media usage of those of us over 45. I guess that means we must be relegated to the era of print newspapers and People magazine – but I am not so sure. Both sexes reportedly are equally guilty of this new trend.
Deirdre Bannon, vice president of social media solutions at NM Incite, summed it up: “social media is truly everywhere in people’s lives. It is so ingrained and has touched every facet of everything we do all day long. We are literally taking our phones with us to the bathroom and connecting on social media.” I suppose it is not surprising that social media users must use this time to connect on social media considering the sheer amount of time spent in social media forums. The Nielsen survey found that if you combined all electronic devices (PCs and mobile devices) the overall time spent on social networks rose 37% last year. Women spent an average of 18 hours and 20 minutes per month and men spent about 13 hours.
The biggest users, the 18-24 year olds, spend more than 21 hours each month on social network sites. (51% of this group are connected to social media sites during work hours.) Most of the internet traffic is generated on mobile devices – usage increased by 85% for internet on mobile apps and 82% on mobile Web browsers – and nearly one-third (30%) of all time spent on mobile devices is spent on social networks. The PC usage actually dropped by 4% to 204.7 million. Bannon says, however, that “personal computers remain at the center of the social-networking experience and most of the time spent is actually there.”
So what does this tell us? Our prediction came true – technology really is intersecting every aspect of our lives. So, in light of that, please don’t tell me where you are when you next update your status!
Teresa is the Chair of Fredrikson’s Non-Competes and Trade Secrets Group, and an MSBA Certified Labor and Employment Law Specialist. She counsels business clients on risk management and policy development relating to employee use of technology, and also litigates their business and employment disputes. Teresa trains, writes and lectures extensively on legal issues arising from business use of technology and social media.