Issue of Threats via Facebook Heads to the Supreme Court

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States. text message speech bubble or twitter keyboard_3

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others).  At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics.  The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.”  So now the Supreme Court will decide what the “true test” for “true threats” should be.

The legal issue may appear easier than it is.  The facts of the case may make the speech and speaker less sympathetic.  For example, his Facebook comments included the following about his wife, after she left with their two children:

If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.

He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”  And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.”  He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.

If You Need Me, I Will Be In the Hall of Fame

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine.  Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches. Continue reading

3 Tips for Harassment Investigations

Investigating complaints of inappropriate workplace conduct is a difficult challenge for any number of reasons. But conducting an immediate and thorough investigation is critical to both preventing lawsuits and to avoiding liability should a lawsuit arise. Human-resource professionals often ask for tips in handling this challenge. Here are three.male female sign_3

First, don’t be shy. An investigation of workplace harassment is not the time to be timid. Ask the tough questions and be direct. Don’t mince words or dance around the questions. Consider writing out the questions that you need answers to and actually check them off your list. If you don’t ask a straight question, you’ll never get a straight answer. Continue reading

Three Tips for Protecting Your Electronically Stored Confidential Information

Employers, do you know what apps your employees are using?  That’s the question posed by a recent article in the WSJ.  (See Companies Don’t Know What Apps Their Employees Are Using).  My guess is that the answer to this important question is, “No.”  Here are my top tips for how not to be the employer discussed in the WSJ article. cloud storage file cabinet drawer and folders_3

First, have a policy about employees’ use of cloud-based apps to save work-related documents.  Consider prohibiting employees from saving work documents to cloud-based storage accounts such as Dropbox, SkyDrive, and Box.net.  Also consider prohibiting employees from backing up the contents of their work laptops to cloud-based back-up accounts, such as Mozy and Carbonite. Continue reading

A Perk of BYOD Policies at Work

Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer-particularly when the new employer is a competitor.   When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue. privacy policy with green folder_thumb

Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network.  But what if the employee turns over his personal emails or text messages without realizing it?  The answer is, as always, “it depends.”  A recent case from a federal court in California addresses the issue in a limited context. Continue reading

Keeping Secrets on Social Media: Part II

Employees telling secrets online was the subject of yesterday’s post, Keeping Secrets on Social Media.  Today’s post–a continuation of the theme from yesterday–is about “auto-expire” apps.

telling secrets_thumb

An “auto-expire” app is an app that enables users to set an automatic expiration date and time for social-media or other online content.  There are lots of reasons one would use an auto-expire app but the three that come immediately to mind are regret, efficiency, and secrecy.

Social-media regret is nothing new.  Just last summer, I wrote a post about social-media regret syndrome.  Auto-expire apps like Xpire, for example, allow users to set expiring posts for Facebook, Twitter, and Tumbler.

Efficiency also is a reason to consider these apps. You don’t need to keep (or have others keep) the series of text messages exchanged about where to meet for lunch.

But secrecy, in my opinion, is the most prominent reason for the increased interest in these auto-expire apps.  In the employment context, there may be security reasons for having highly confidential discussions automatically deleted forever.  Apps like Wickr (branded as “a top-secret messenger), are targeted to businesses for exactly that reason.  Wickr advertises that messages sent through the app contain no geolocation data and are not tracked or monitored–what’s yours is yours and cannot be accessed by the host site.

Be careful, though, about what you send through these apps–people are often surprised by the utility of having access to evidence in the form of contemporaneous posts and conversations.  But, for certain exchanges, you can imagine the equally powerful utility of having an untraceable and permanently deleted line of communications.

Keeping Secrets on Social Media

The title of this post is a bit laughable, isn’t it?  I mean, really, it’s almost an oxymoron.  Keeping secrets on social media?  What’s the point?  The very existence of social media is dependent upon sharing-not secret-keeping.  But the two are intersecting more and more.  Which is why I am writing a short series of posts about the topic.  Beginning today with a post about “anonymous” apps.telling secrets_thumb

Back in February, fellow employment lawyers, Adam S. Forman and Dan Schwartz, and I were interviewed for an article in Law360, titled, “What Employers Need to Know About the New Social Media.”  In that article, I discussed what I think is the wave of the future in social media for employers-apps focused on secrecy.

For example, one app, Secret, allows users to share anonymous messages with anyon3e in their contacts who also uses the app.  Employers in the tech industry, where these apps are particularly popular, are struggling with how to deal with (and, preferably, prevent), the loss of confidential company information.

For example, an employee hears through the grapevine that the Vice-President of R & D has taken a job with a competing firm.  Employee posts that hot tidbit on Secret, where all of his work colleagues (who also have the app, of course), will see it.  The firm can be seriously disadvantaged by uncontrolled leaks of information.  And, when the app is designed specifically for that very purpose, it is hard to address with any meaningful result.

As a side note, educators are struggling with a related problem.  Students bullying other students via these anonymous apps is a serious problem that many school districts are trying to manage.

So what should employers be doing?  Well, to start, they should be reading this blog post.  If they do, at least they’ll know about the existence of these “anonymous” social-media apps and about the potential issues the employer may be facing already because of them.  Next, employers should consider investigating for themselves. Have an individual from HR subscribe to the service and see what, if anything, is posted about the company.  Although it may hurt to find out, it’s better that you know so you can make a rational decision about how, if at all, to address it.

In the next post in this series, I’ll discuss “auto-expire” apps that enable users to set an expiration date on their posts and messages.  Stay tuned.

How to Apologize At Work

Humility is a virtue.  And, for most of us, it doesn’t come easily.  Particularly for those of us who want to be good at our jobs and to please to whom we report, owning up to a mistake at work can be a difficult task.  Management professor Robert Sutton offers advice about how to deliver a truly effective apology in his book, Good Boss, Bad Boss.  A recent article about Sutton’s advice summarizes it in three steps. I'm sorry_thumb

1. Own It

When you make a mistake at work, own your actions.  And own them completely.  Don’t combine your apology with an excuse.  Omit the word “but” from every apology.  For example:

Do:  “I apologize.  I sent the shipment sooner than I should have.”

Don’t:  “I apologize.  I thought you said to send it out yesterday.”

The second example sounds more like blame shifting than an apology.  Own up to the error fully.

2.  Don’t Overdo It

The apology should be commensurate with the mistake.  If you miss a big meeting, you should make your apology in person.  If you are 15 minutes late to the meeting, a less formal face-to-face is probably required.

3.  Offer a Solution

Employees who offer a solution for the problem that they’ve caused come out looking like problem solvers-a positive attribute in any workplace.  Can’t solve the problem?  Then explain what steps you’ve taken to try to solve it.  Just dumping the problem onto another person (particularly your boss) is not a good idea.  At the same time, make it clear that you intend to ensure that the problem not occur again.  Be clear that you won’t make the same mistake twice.

Traveling for Work and Late-Night Emails

Traveling for work has its pros and cons.  I spent the last two weeks in sunny Santa Monica, California.  I was there to take multiple depositions in an expedited proceeding, which meant that I escaped my hotel room / conference room for a combined total of approximately 4 hours over a 14-day period.  In fact, I didn’t leave my hotel room or the conference room from which we were working at all until Day 4, when I took the extreme liberty of walking to the beach and back.  (Picture below).  I was out of the room for about 10 minutes-I didn’t even put my toes in the sand for fear that I’d never return to the room.

Two weeks felt like a long time to be away from home.  But it also felt like a long time to be away from my regular work routine.  In particular, my email Inbox expanded beyond my normal comfort level, as I prioritized the case that required my attention the most.Sunny Santa Monica

It wasn’t until late in the evening that I was able to make meager headway in responding to emails I’d received for other matters.  But, had it not been for those late-night (and, sometimes, very early morning) email binges, I would never have been able to get caught up upon my return.  I also would have had some very unhappy clients, who require their lawyer’s prompt attention to deal with emergency issues as they arise.

So I have to question the premise of a recent opinion piece in the NYT, titled, End the Tyranny of 24/7 Email.  The piece features companies, such as Daimler, the German automaker, that sets limits on when employees can send and receive emails.  According to the article, “limiting workplace email seems radical, but it’s a trend in Germany,” where some companies have “adopted policies that limit work-related email to some employees on evenings and weekends.”

On the one hand, putting technical barriers and/or policies in place that restrict certain employees can have its benefits.  In particular, it limits the risks associated with non-exempt employees who send emails during off-hours and who must be paid for that time as time worked.  But it also seems to have some less-than-ideal outcomes.  Specifically, as we move more and more towards a flexible work schedule in an increasingly mobile society, the ability to respond to emails when and where we want can be very important.  And limitations on that ability may not be all its cracked up to be.

Alas, the work-life balance continues to be more of a juggling act than a graceful performance on a balancing bar. Either way, it’s good to be home.

Understanding Gender-Identity Discrimination

This article was written by Lauren Moak Russell.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute. Continue reading