Waiver of Attorney-Client Privilege Via Facebook

Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement. logo_from_dev

There’s another reason to be concerned about what employees say on social-networking sites-waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer.

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost.

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook.

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion.

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret-it doesn’t belong on Facebook.

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

Facebook Post Means No Unemployment Benefits for Nurse

Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:

Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.

One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.

Talbot sought unemployment insurance benefits but his claim was denied b/c he was discharged for violating the company’s policy. Talbot appealed and the Appeals Examiner reversed the initial denial decision, finding that he had not been terminated for employment-related misconduct. The employer appealed and the decision was reversed and Talbot was denied unemployment benefits. Talbot appealed to the Idaho Supreme Court.

The high court upheld the denial of benefits, finding that the employer had satisfied each of the three required elements. Most import was the court’s finding that the employer had an expectation that its nurses would not make threatening statements about a patient on Facebook and that Talbot failed to meet the employer’s expectations. Talbot argued that his post was not a threat-it was merely a “rhetorical statement meant to initiate discussion.”

But this argument misses the point. The employer did not claim that Talbot’s post was an actual threat-only that it was “threatening.” There is a difference, it seems to me. “Threatening” language or comments can cause harm, regardless of intent. Personally, if I had a family member who was a patient at Desert View Care Center, I would have had significant reservations about the quality of care they would receive from Talbot. I wouldn’t necessarily think he had made a “threat”-only that his attitude was less than ideal for a caregiver. And the nursing professor who reported the post, apparently, thought so, too.

This is consistent with the First Amendment case law in the context of social-media and Free Speech. When an employer is faced with potential harms arising from an employee’s social-media post, the employer need not wait until those harms actually occur before taking action. Here, Desert Care was not required to wait until Talbot actually neglected a patient who, in Talbot’s opinion, complained too much. The employer can (and should) take action to ensure that the harms do not occur in the first instance.

Was this a tough break for Talbot? Maybe. But would it have been a really tough break for Desert Care if word got around that its nurses gave less attention to patients they didn’t like? Most definitely. And, especially in the health-care context, it’s not merely the employer’s prerogative to prevent bad outcomes but its duty.

For a different take on this case, see Eric Goldman’s Technology & Marketing Law Blog

Talbot v. Desert View Care Ctr., No. 41208 (Idaho, June 20, 2014).

Jurors Behaving Badly

Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area.judge's gavel_thumb

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

The court heard oral argument about the alleged misconduct but did not conduct an investigation.  The Supreme Court reversed and remanded, finding that the Delaware Constitution mandates an investigation following allegations of juror misconduct.  Such an investigation is mandatory even where the trial court gave clear instructions regarding the use of the Internet as a source of extrinsic information.

Baird v. Owczark, No. 504 (Del. May 28, 2014).

See also

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

3d Cir. “Likes” Jury Instructions on Social Media

Calling Your Students “Hoes” Can (And Should) Get You Fired

During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school.  In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county.  The trip was not approved as was required by district policy.  When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval. Continue reading

Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First!

The plaintiff is a Michigan lawyer.  She was placed on the assignment list of the County Probate Court and, as a result, received several case assignments.  She made a comment on Facebook about what she believed to be inefficiency at the Clerk’s Office at the Court in a particular case she was handling. She tagged two people in the post, mistakenly identifying them as employees at the Clerk’s Office. how_to_permanently_delete_or_deactivate_facebook_account_thumb

One of the two employees brought the post to the attention of the Court administrator.  The administrator never saw the actual post.  Two days later, the Court administrator notified the plaintiff by letter that she had been removed from the assignment list because of her comment on Facebook.

The plaintiff attempted to get back on the list multiple times but was unsuccessful and filed suit.  The suit alleges several constitutional claims, all but one of which were dismissed by the court.  The claim that survived is a claim for unlawful retaliation in violation of the First Amendment-i.e., a free-speech claim.

The court declined to dismiss the free-speech claim for several reasons.  First, it held that the plaintiff was speaking as a private citizen-not as an employee-when she made the post.  I tend not to agree but, well, we can’t all be right all of the time.

Second, the court held that she was speaking on a matter of public concern.  This finding was based, in large part, on the fact that no one could produce a copy of the actual post and, therefore, the court was left to decide the nature of the speech without ever having seen the speech.  Yikes.

Why, you ask, did no one produce the post?  According to the opinion, because the plaintiff deleted it.  Hmmm.  That doesn’t seem like exactly the right outcome, does it?  Because the plaintiff destroyed evidence, she gets the benefit of the doubt?

Maybe not.  But it does teach an important lesson to employers.  If you are going to discipline or terminate an employee due to something the employee posted on Facebook-get and keep a copy of the actual post if at all possible. Taking someone’s word for what the post says doesn’t mean that the termination is unlawful but it does likely mean that you’re going to have to work a lot harder to prove your case.

Butler v. Edwards-Brown, No. 13-13738, 2014 U.s. Dist. LEXIS 62032 (E.D. Mich. May 5, 2014).

Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter

To establish a claim of defamation, the plaintiff must establish that: (1) the defendants made a statement concerning the plaintiff to a third party; (2) that the statement could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either cause the plaintiff economic loss or is actionable without proof of economic loss. twitter bird singing (2)_3

There are several possible defenses to a claim of defamation.  Two of the most common are that: (1) the allegedly defamatory statement is true; and (2) that the statement was one of opinion, as opposed to fact.  Thus, if you make a negative statement about someone that is true, there can be no liability for defamation.  Similarly, if you merely comment about your opinion, as opposed to purporting to make a factual statement, there has been no defamation.

Defamation by Twitter is no different.  Comments that are merely expressions of opinion, whether made in person, in the local newspaper’s letter to the editor, or on Twitter, cannot form the basis for a claim of defamation.  A federal court in Massachusetts recently explained this idea in Feld v. Conway.

In Feld, the plaintiff brought a claim for defamation based on the defendant’s tweet that the plaintiff was “f-ing crazy.”  The comment was made in response to a thoroughbred horse that disappeared after it was supposed to have been shipped to a horse farm in New Jersey.  The event was the subject of “great debate” in the thoroughbred race horse community, which included the defendant, Crystal Conway.  The tweet at issue was apparently intended to imply that the plaintiff, Feld, was involved somehow with the horse’s disappearance.

The defendant moved to dismiss the complaint, arguing that the comment was merely opinion and, therefore, could not constitute the basis of a defamation claim.  The court agreed.  Finding that, when viewed in the context of the online discussion regarding the horse’s disappearance, the comment that the plaintiff was “f-ing crazy” “cannot reasonably be understood to state actual facts about plaintiff’s mental state.”  Instead, it was “obviously intended as criticism-that is, as opinion-not as a statement of fact.”  As a result, the defamation claim was dismissed.

So, what’s the lesson from this case?  Primarily, it’s this: don’t go suing over cheap insults.  Comments like the one at issue in the above suit are not comments to be taken seriously.  Does that mean that they are not annoying, insulting, and/or distracting?  No, of course not.  Online attacks, like “real-life” attacks, are not pleasant.  But that does not mean that there is a basis to run out and file suit.

It is a different world today, when individuals and entities alike must deal with negative online commentary.  But hurt feelings do not a lawsuit make.

Feld v. Conway, No. 13-13122-FDS (D. Mass. Apr. 14, 2014).  [H/T to Jay Yurkiw, of Technology Law Source at Porter Wright].

Is It Time to Reconsider Your Personal Email Policy?

The Heartbleed Internet-security flaw has compromised the security of an unknown number of web servers.  This is just one story in a string of recent headlines involving the vulnerability of the Internet sites.  But consumers aren’t the only ones affected.  The companies whose websites have been attacked are employers, after all.computer help button_3

Although data security has become increasingly impossible to ensure, it has also become increasingly critical to employers’ viability.  So employers are looking for ways to mitigate the exponentially increasing risks associated with the Internet. Continue reading

Father Learns a Costly Lesson about the Importance of Keeping Promises

When considering whether to settle a lawsuit filed by a current or former employee, many of my employer clients have serious doubts about the usefulness of a confidentiality provision. For good reason, employers don’t want the plaintiff to brag about the settlement, thereby encouraging other potential litigants. But, my clients often ask, will the employee really be silenced? Or will the employee just ignore his confidentiality obligation. comic book spy secret_3

My answer has a few parts. First, having a confidentiality provision is better than not having one. Second, if the employer learns of a breach, it will, at least, have some options for holding the employee accountable. A story from last week’s news headlines confirms the validity of both points.

Teenager Dana Snay’s father settled an age-discrimination case brought against his former employer, Gulliver Preparatory School, for $80,000. When the girl learned about the settlement, she did what most teenagers would do-she posted about it on Facebook, broadcasting the news to her 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver. . . . Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay was just kidding about her European vacation-there was no such vacation in the works. But that’s probably not what bothered Gulliver. When it learned about the post, it refused to tender the settlement payment to Snay’s father, claiming that the post constituted a breach of the confidentiality provision in the settlement agreement.

And a Florida appellate court agrees. The Miami Herald reports that the court found in favor of the employer when Snay’s father sought to compel payment.

So what are the lessons to be learned, dear readers?

First, don’t underestimate the value of a confidentiality provision.

Second, understand your contractual obligations and abide by them strictly. Although many commentators are blaming Snay for her Facebook chattiness, the real fault lies with her father. He promised that he would keep the agreement confidential and he failed to keep his promise. There are consequences to such failures, which is why we spell them out in written contracts.

Chefs and Employment Law: A Valentine’s Day Post

Rumor has it that today is Valentine’s Day.  Being married to a chef-restaurateur, Valentine’s Day doesn’t mean “romantic holiday” to me as much as “very, very busy workday.”  And, for that reason, I’ll dedicate today’s post to the food-service professionals who have a long weekend of work ahead of them.

There are plenty of employment-law topics with a chef or restaurant connection.  Here are a few stories from recent history that come to mind.love heart tattoo art_thumb

Wage-and-Hour Claims

Certainly, restaurants are not the only industry subject to wage-and-hour claims by employees.  But there does seem to have been a recent proliferation of settlements of such claims by businesses owned by famous-name chefs.

There was the $5.25 million settlement forked out by Chef Mario Batali in March 2012, over allegations that servers’ tips had been improperly withheld.  Then there was the January 2014 settlement agreement that Chef Daniel Boulud reached with 88 workers who alleged that their pay had been improperly reduced to account for tips, resulting in payment of overtime at an incorrect rate.  The amount of that settlement is confidential.  And, even more recently, there was the $446,500 settlement agreement reached to resolve the wage claims of 130 servers at two NYC restaurants owned by Chef Wolfgang Puck.

Why are so many wage claims against restaurants?  One reason is the complexity of the laws in this area.  The overtime laws are complicated even in the context of an employee who receives hourly wages only.  But, add to that tip credits, earned tips, and tip pooling, and you’ve got a virtual maze of complex issues.  The laws are not easy to navigate, especially without guidance from experienced legal counsel.

Social-Media Use and/or Misuse

I’d be remiss, of course, if I didn’t give at least one social-media related story, too.  So I will end today’s post with a reference to a story about a chef who sent a bunch of not-so-nice tweets from the restaurant’s official Twitter account after he’d been fired but before (apparently) the restaurant had changed the password on its account.

Chef Grant Achatz, owner of Alinea in Chicago, landed in hot water when he tweeted about a couple who brought their 8-month old to dinner.  I have a definite opinion on this story.  Having been to Alinea, I feel very comfortable saying that it is not a place where an 8-month old needs to be and, if the 8-month old is crying at the top of his lungs, it’s not a place where that baby should be.  The restaurant is very expensive, with meals starting at more than $200 per person.  Reservations are wickedly difficult to get with only 80 seats.

Most important, though, is the nature of the experience.  Diners fight for reservations and pay big bucks for a reason–the meal is something you remember forever.  The food is so far beyond anything else, it’s almost an Alice-In-Wonderland experience.  And to have that be ruined by the guests at the table next to you would be, to me anyway, a crushing disappointment.

So, there.  That’s where I stand on the question.  Chef Achatz’s tweet did not offend me or make me adore his restaurant any less.

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Employment lawyers know the potential importance of social-media evidence.  We’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.) Continue reading