In Your Workplace Investigation, Can You Consider the Complainant's Facebook Page and Personal Emails?
Maybe.
The Internet has transformed communications as evidenced by the current estimate that over 210 billion emails are sent daily, 50 million tweets are sent daily, and over 1.5 trillion text messages were sent in 2009. Social networking is here to stay. So employers need to stay abreast of changes in the courts' views on employer access. Notwithstanding the recent U.S. Supreme Court holding in the Quon case(see last post), there is a trend by courts across the country to extend more and more privacy rights to employees' use of electronic communications in the workplace.
A. Facebook
On May 11, 2010, a federal court in Indiana held that during the discovery phase of their trial, two plaintiffs had to turn over all Facebook and MySpace postings for the past three years. The plaintiffs were claiming to suffer from post traumatic stress disorder, and the court reasoned that pictures and statements the plaintiffs had posted might be relevant to their mental state during the relevant time period. EEOC v. Simply Storage Management, S.D. Indiana (May 11, 2010).
Of course, the holding sets precedent only in Indiana, but the reasoning utilized gives some comfort to employers who review this type of SNS (social networking sites) information when investigating a complaint.
B. Personal Emails
A 2009 study revealed that more than 52% of employees check and use their private email accounts while using their workplace computers. Does this mean that during an investigation, an employer can access these private emails sent through accounts such as hotmail and gmail? The answer is no according to an opinion from a New Jersey appeals court.
In Stengart v. Loving Care Agency, et al., 2010 WL 1189458 (N.J. Mar. 30, 2010), the court held, “Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets.”
In deciding whether an investigative search is permissible, courts generally take into account whether there is an explicit email monitoring policy, what the terms of the policy explicitly say, and whether the employees are aware of it.
Bottom line, you should check with counsel before searching an employee's personal email messages because these situations can present great risk for employers.
I'll be discussing these issues and more at the South Texas Employment Law Conference in Houston on July 14-15, 2010. Come and say hello!
Friday, June 25, 2010
Friday, June 18, 2010
Sexters Beware!
Attention all public employees: If you're feeling romantic, use the old-school method of "drunk dialing" to reach out to a potential mate, and avoid texting a sexy message . . . unless you want your boss to read it.
In a 9-0 decision yesterday, the U.S. Supreme Court gave public employers the right to read text messages sent by an employee on an agency-distributed phone, as long as the employer has a "work-related purpose" for the inspection. A "work-related purpose" would include a concern that pagers were being used mostly for personal messages.
The case was filed by a police sergeant against his chief in Ontario, California. The sergeant was angry that the chief read text messages from the sergeant to his girlfriend and ex-wife that were sexually explicit. The chief's inspection revealed that the sergeant sent or received 456 messages in August of 2002, but only 57 were work-related.
The ruling applies directly to more than 20 million federal, state, and local government employees, and the ruling provides some guidance for private employers as well. It appears that now an employer will feel more comfortable reviewing an employee's texts when there is a credible belief that an employee is violating workplace conduct rules.
The 2008 9th Circuit ruling held that employers must have either a warrant or the employee's permission to see cell phone text messages that are not stored by either the employer or by someone the employer pays for storage. Unlike emails that are stored typically on a company's own servers, text messages are stored most often by cell phone companies, and the employer does not pay directly for their storage. It appears the 9th Circuit relied heavily on this distinction in forming their decision. Quon v. Arch Wireless, 529 Fed3d 892 (9th Cir 2008).
In a 9-0 decision yesterday, the U.S. Supreme Court gave public employers the right to read text messages sent by an employee on an agency-distributed phone, as long as the employer has a "work-related purpose" for the inspection. A "work-related purpose" would include a concern that pagers were being used mostly for personal messages.
The case was filed by a police sergeant against his chief in Ontario, California. The sergeant was angry that the chief read text messages from the sergeant to his girlfriend and ex-wife that were sexually explicit. The chief's inspection revealed that the sergeant sent or received 456 messages in August of 2002, but only 57 were work-related.
The ruling applies directly to more than 20 million federal, state, and local government employees, and the ruling provides some guidance for private employers as well. It appears that now an employer will feel more comfortable reviewing an employee's texts when there is a credible belief that an employee is violating workplace conduct rules.
The 2008 9th Circuit ruling held that employers must have either a warrant or the employee's permission to see cell phone text messages that are not stored by either the employer or by someone the employer pays for storage. Unlike emails that are stored typically on a company's own servers, text messages are stored most often by cell phone companies, and the employer does not pay directly for their storage. It appears the 9th Circuit relied heavily on this distinction in forming their decision. Quon v. Arch Wireless, 529 Fed3d 892 (9th Cir 2008).
Wednesday, March 24, 2010
SLY OR SENSELESS? INVESTIGATING VAGUE OR WITHDRAWN EMPLOYEE COMPLAINTS
Should we be investigating vague, partial, regretted, or attempted-to-be-withdrawn complaints?
Yes, yes, yes, and yes!
Sly investigators might argue that by giving only partial information or trying to withdraw a complaint and insist that no action be taken, a complainant has not adequately placed an employer on notice that sexual harassment has potentially occurred. They might refer to an Eleventh Circuit ruling where the court said an employer was not put on notice when an employee told a supervisor about harassing phone calls she was receiving but then implored the supervisor to keep the conversation confidential and take no action against the alleged harasser. Nurse Be v. Columbia Palms West Hosp. (No. 06-12159, 11th Cir. 2007).
Similarly slick investigators might also mention Hardage v. CBS Broad, Inc., 427 F.3d 1177 (9th Cir. 2005), a case holding that CBS Broadcasting was not responsible for a supervisor's harassment since it offered to intervene when it learned of the alleged harassment, but the victim insisted that the company not get involved. This line of cases mostly relies upon the Faragher/Ellerth line of cases holding that one of the primary obligations of an employee is to take full advantage of the employer's preventative measures
Based upon this reasoning, perhaps this same sly investigator may choose to abide by a complainant’s request to keep a report of harassment confidential and not initiate an investigation. Hoping that the complainant’s hesitancy to go forward with a complaint will later preclude her from successfully suing the company, some investigators may carefully record a complainant’s precise words and then sit back and decide whether or not the company has been put on proper notice of a complaint.
Such sly investigators are missing the point. If we are in the business of making the workplace a better place, then we need to seize every opportunity to do just that. Allowing potential misconduct to continue and a probable victim to suffer in silence is bad for morale and bad for business. An investigation not only reveals the source of a particular interpersonal conflict, it also affirms to other employees that the organization has a set of core behavioral standards in which there is no place for harassment.
Moreover, courts get persnickety when they think an employee's complaint has fallen on deaf (or just sly) ears. For example, in New York recently, a female employee refused to work a shift with her male colleague but told her supervisor she did "not want to talk about" her specific complaint against him. The supervisor then responded laughingly, "That's good because I don't want to know what happened." The Second Circuit Court of Appeals allowed this female to sue her employer two years later noting that, "[W]hen an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem will not shield an employer from liability." Duch vs. Jakubek, (Dec. 2009, 2d Cir).
The same lesson can be learned from the case of Howard v. Winter, 446 F.3d 559 (4th Cir. 2006), where the court allowed an administrative assistant to bring suit against her company despite the company’s argument that it was never put on notice of any harassment. The complainant told a Human Resources Specialist vaguely that the harasser had touched her and that she had written him a letter asking him to stop. Rather than immediately investigating further into the allegations, the HR specialist told her to come back to see him if the conduct did not stop. Id. at 563-64. The harassment of course continued until a co-worker told another supervisor, and the alleged harasser was transferred out of the plaintiff’s work area. Id. The Fourth Circuit Court of Appeals held that the company was on notice of the plaintiff’s sexual harassment complaint at the time she spoke to the HR specialist and therefore was potentially liable for the harassment occurring between that conversation and the later transfer of the harasser.
Interestingly, the court held, "At the very least, a juror could conclude that it was unreasonable for [the HR specialist] to not ask follow-up questions in an effort to determine the exact way in which McCall put his hands on Howard." Id. at 570.
Here's what we know: The handling of an employee complaint is no place to be sly. Immediately upon learning that an employee feels harassed, no matter how vaguely the complaint is worded and no matter how stridently the complainant pleads for non-action, the company has an ethical obligation to initiate a prompt and thorough investigation. The company needs to take this step in order to protect its employee from possible harassment and also to uncover any other problems that may be lurking in the hallways as a result of the harassment. The fact that a solid investigation may also shield the company from damages down the line further justifies this smart approach.
Yes, yes, yes, and yes!
Sly investigators might argue that by giving only partial information or trying to withdraw a complaint and insist that no action be taken, a complainant has not adequately placed an employer on notice that sexual harassment has potentially occurred. They might refer to an Eleventh Circuit ruling where the court said an employer was not put on notice when an employee told a supervisor about harassing phone calls she was receiving but then implored the supervisor to keep the conversation confidential and take no action against the alleged harasser. Nurse Be v. Columbia Palms West Hosp. (No. 06-12159, 11th Cir. 2007).
Similarly slick investigators might also mention Hardage v. CBS Broad, Inc., 427 F.3d 1177 (9th Cir. 2005), a case holding that CBS Broadcasting was not responsible for a supervisor's harassment since it offered to intervene when it learned of the alleged harassment, but the victim insisted that the company not get involved. This line of cases mostly relies upon the Faragher/Ellerth line of cases holding that one of the primary obligations of an employee is to take full advantage of the employer's preventative measures
Based upon this reasoning, perhaps this same sly investigator may choose to abide by a complainant’s request to keep a report of harassment confidential and not initiate an investigation. Hoping that the complainant’s hesitancy to go forward with a complaint will later preclude her from successfully suing the company, some investigators may carefully record a complainant’s precise words and then sit back and decide whether or not the company has been put on proper notice of a complaint.
Such sly investigators are missing the point. If we are in the business of making the workplace a better place, then we need to seize every opportunity to do just that. Allowing potential misconduct to continue and a probable victim to suffer in silence is bad for morale and bad for business. An investigation not only reveals the source of a particular interpersonal conflict, it also affirms to other employees that the organization has a set of core behavioral standards in which there is no place for harassment.
Moreover, courts get persnickety when they think an employee's complaint has fallen on deaf (or just sly) ears. For example, in New York recently, a female employee refused to work a shift with her male colleague but told her supervisor she did "not want to talk about" her specific complaint against him. The supervisor then responded laughingly, "That's good because I don't want to know what happened." The Second Circuit Court of Appeals allowed this female to sue her employer two years later noting that, "[W]hen an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem will not shield an employer from liability." Duch vs. Jakubek, (Dec. 2009, 2d Cir).
The same lesson can be learned from the case of Howard v. Winter, 446 F.3d 559 (4th Cir. 2006), where the court allowed an administrative assistant to bring suit against her company despite the company’s argument that it was never put on notice of any harassment. The complainant told a Human Resources Specialist vaguely that the harasser had touched her and that she had written him a letter asking him to stop. Rather than immediately investigating further into the allegations, the HR specialist told her to come back to see him if the conduct did not stop. Id. at 563-64. The harassment of course continued until a co-worker told another supervisor, and the alleged harasser was transferred out of the plaintiff’s work area. Id. The Fourth Circuit Court of Appeals held that the company was on notice of the plaintiff’s sexual harassment complaint at the time she spoke to the HR specialist and therefore was potentially liable for the harassment occurring between that conversation and the later transfer of the harasser.
Interestingly, the court held, "At the very least, a juror could conclude that it was unreasonable for [the HR specialist] to not ask follow-up questions in an effort to determine the exact way in which McCall put his hands on Howard." Id. at 570.
Here's what we know: The handling of an employee complaint is no place to be sly. Immediately upon learning that an employee feels harassed, no matter how vaguely the complaint is worded and no matter how stridently the complainant pleads for non-action, the company has an ethical obligation to initiate a prompt and thorough investigation. The company needs to take this step in order to protect its employee from possible harassment and also to uncover any other problems that may be lurking in the hallways as a result of the harassment. The fact that a solid investigation may also shield the company from damages down the line further justifies this smart approach.
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