LexisNexis Podcast of Margaret DiBianca on Implications of Social Networking, Technology and Employment Law on Workers’ Compensation (Transcript)

LexisNexis Podcast of Margaret DiBianca on Implications of Social Networking, Technology and Employment Law on Workers' Compensation
February 2009
Interview Conducted by Steve Berstler, Esq.

On this edition Margaret DiBianca of Young, Conaway, Stargatt & Taylor of Wilmington, Delaware on the implications of social networking, technology and employment law on workers' compensation. Every day it seems the lines continue to blur between on-duty and off-duty conduct of employees due in large part to social networking sites like MySpace, Facebook and others.  To discuss what that means as far as employees or employers are concerned and its effects on workers' compensation is Margaret DiBianca, an attorney with Young, Conaway, Stargatt & Taylor in Wilmington, Delaware.  Miss DiBianca is a frequent contributor to her firm's blog on employment matters - see delawareemploymentlawblog.com.  Thank you for being part of this LexisNexis Podcast. [Note: This transcript was partially edited by the LexisNexis Workers' Compensation Law Center staff.]

Steve:  Delawareemploymentlawblog.com – is that something you started up yourself?

Margaret:  I did with some of the other attorneys in my firm and especially in my practice group – about three or four others that contribute on occasion – but I do it in full and frankly I just love it so much. It keeps me so current.  It forces me, and of course it is not hard to force me – there is no forcing involved – but it makes me be as current as I can possibly be on every single thing that is coming out and it really feeds the hunger to learn and to keep on the cutting edge.  It is a tremendous amount of work, but, gosh, it is so enjoyable.  It's a great opportunity to write and not have to make a full commitment to sitting down and writing a scholarly paper.  You can sort of write in an hour and have some work to generate.  It is a great way to interact with other people in my profession and hear what their thoughts are, and you get to build this little community.  It is great.  I really enjoy it.

Steve:  I mentioned blurring the line between on-duty and off-duty employee conduct.  Can you talk about that?  And also a little bit about the “drunken pirate” situation from a few years ago.

Margaret:  You are absolutely correct as far as the blurring goes between on duty and off duty employee conduct.  It is almost to the point there is nothing left to blur.  Largely it is the result of technology.  We have laptop computers. We have cell phones. We have BlackBerrys.  We can dial into our desktops and have virtual conferencing.  All of those things lead to greater flexibility.  We don't have to punch in and punch out anymore, but at the same time, what we compromise in that respect is we end up being always on duty.  And it is sort of shocking actually how few people really comprehend the extent to which anything they put online is going to be sort of available at some point or another – potentially could be available – for everyone to see, especially the younger generation coming in – the Gen-Y and late Gen-X – they don't seem to understand how potentially dangerous it can be.  The “drunken pirate” situation was local to me. It was in Pennsylvania at Millersville University .  A young teacher, Stacy Snyder – she was 25 at the time – was just a few days away from getting her teacher's degree from Millersville.  She was doing her student teaching to finish her degree program at a local high school.  And literally just days before she was awarded her degree, someone from the school found a picture that she had posted on her MySpace page where she had labeled herself the "drunken pirate".  It was a photograph of herself with beer in hand wearing a pirate's hat.

Steve:  I remember reading about that.

Margaret:  It was a very big story – one, because of the question it raised – was she an employee or was she a student?  Millersville did not award her a teaching degree because of it.  They said that she was promoting underage drinking.  So that was not acceptable to the school, and they refused to award her a teaching degree for that reason.  She sued.  That is when it became a very, very popular news story across the country because it was one of the few cases that we've seen where an employee, and in this case a teacher – which makes it even more complicated, because a public employee sues the school/employer – says, "wait a minute.  You can't take what I do in my off duty time – you know, this party was off campus, nonworking hours – and hold it against me in an employment context for what I'm doing during my working time.  I'm a great student teacher.  I want my degree."  And the court actually found against her and dismissed her suit.  The court found that she did not have in the public employment context for public employees, whether it is a government or a school, any first amendment free speech rights for speeches they make unless the speech is not a matter of public concern.  And here the court said, no – this is not a matter of public concern.  Drunken pirates are not a matter of public concern.  And this is just a personal private speech that you made, but you failed to realize you were sharing it with a very broad audience.  When you do that, the broad audience can hold you accountable for it.

Steve:  Similarly, it is possible for injured workers to be “busted” by what they say or post on MySpace or Facebook?

Margaret:  Absolutely.  There is a lot of overlap actually with workers' comp injuries, and the same things happen in a similar context or short-term disability context when people are on leave, whether for workers' comp or otherwise, because of an injury or illness.  Then what happens is they are sighted – they are seen online – be it a picture they posted or someone else posted – but they are either playing softball or they are working a second job cutting lawns, or they are dancing the night away at someone's wedding.  Those are the things that go beyond the hiring context or the firing context because it is not just something potentially the employee could post online.  You could certainly imagine someone posting their wedding photos online shortly after their wedding and saying, here is our wedding reception, everyone's having a great time, and lo and behold there is your employee on workers' compensation dancing the night away.  So you can imagine how the employees themselves may not even realize it is being posted. 

There are lots of employees who are also going to post online information such as a softball game.  Here are pictures of our big victory of this weekend.  They are not advertising it to the world in their mind because they are posting it on a "private setting," but there are lots of ways to get around that.  That is an area of the law that is underdeveloped.  If you hire or listen to any security consultant, they will tell you a variety of ways to get around the privacy settings.  Or what more commonly happens and it happens pretty often, frankly, is another employee will disclose it.  Another employee who has legitimate access to the workers' comp claimant's MySpace page or Facebook page – where they've been "friended" – has access, gets on and sees it and says, wait a minute here, and turns it in either directly to the employer or to a friend to a friend to a friend and it makes its way to the employer.

Steve:  My guess is that this is a new or developing area of the law.  It raises the question, how much is discoverable with regard to an employee's text messages or e-mails on Yahoo or Google, their laptop data, things like that?

Margaret:  You're right. Discovery is a very underdeveloped area of the law.  The discovery, though, is very, very broad.  It is a low threshold for an employer to have to beat.  In order to make something discoverable – in other words, that you want to have access to, you want to make the defendant or employee provide it to you in the discovery process during litigation – all you have to show is that the discovery request is likely to lead to some relevant evidence.  That is just as you can imagine – a very, very easy standard to meet.  Where you might see this would be if you have an employer who is sued by an ex-employee and the employer fires the employee after someone has filed complaints that the employee made racially inappropriate comments in the workplace. The employer investigates, determines there is reason to suspect the employee has violated their anti-harassing policy, and terminates the employee.  The employee then in turn brings suit.  That is happening more and more these days.  The employee sues, saying it is because of my age and not because of these comments.  I never made any such comments.  I would never make any such comments.  Then, let's say, during the discovery process the employer comes to learn from another employee who says, “Look, so and so did actually send me an e-mail that contained an inappropriate comment.  Here it is."  The employee sent it from their home account.  Now there is reason to believe that the ex-employee's Yahoo or Gmail account contains information that is likely to lead to relevant evidence because this would be their defense.  The employer's defense would be proven if they were able to say, "Look here, we did have legitimate reason to believe this.  It is not a pretext for age discrimination."  So it is a really low standard as far as what you have to demonstrate on the employer side to have access to text messages and personal e-mail accounts.  I think employees are going to be even more shocked if that starts to come to fruition.  And employers realize, and employer's counsel realizes, that it is an untapped area that can be made available to them during the discovery and litigation process.

Steve:  Can you talk about some of the implications for Gen-Y, for example, and younger folks coming along who are using social networking and technology at such an early age and are basically leaving a high-tech paper trail for everyone to see and peruse?

Margaret:  Frankly, I think it is something we are all going to have to sit back and watch as it occurs.  I don't know that there is a lot we can do about it on the preventive end of it because technology is so engrained in their daily lives.  Every piece of their schooling is digital.  Their socializing is digital.  There is not a whole lot that can be done to break that tie.  For example, at some of the law schools now in the first year of legal writing and research programs, they teach the students how to properly set their privacy settings on Facebook and MySpace.  That is part of the curriculum now, because the implications of failing to do that can be so devastating and truly just wreck a person's entire career.  You can imagine Stacy Snyder, the "drunken pirate" – she was days away from graduating.  Now that option has been effectively removed for her. I don't think the standard will be lowered.  As Gen-Y comes into the workplace, people will say, "everybody does it."  The reality is not everybody does it.  Employers will still look for employees who don't have these hostile, sometimes violent, illegal activities with drugs or underage drinking on their MySpace and Facebook pages, because [those types of things] show bad judgment.  Employers now are so accountable for making their workplace a safe one and guaranteeing their other employees will be safe when they hire someone or bring someone into the workplace.  Conversely with that, when you have an employee who is making defamatory comments about their current employer on their blog or their MySpace page, the employer, or potential new employer, has good reason to question whether they want to hire them.  Is this person a trustworthy, upstanding individual or are they going to be the person who commits workers' compensation fraud, for example, and tell untruths and laugh about it in the world of technology behind the employers back?  That is something employers have to be realistically aware of.  It is not foolish to be conscientious of that.  The wise decision is to be aware that stuff goes on and sort of manage how you look into it in the best practices way.

Steve:  Sounds like a little common sense on everyone's part might be worthwhile.

Margaret:  Absolutely.

Steve:  You had a post recently on delawareemploymentlawblog.com about a California-based wellness program where the company said there are five medical conditions that employers don't want to see in a job candidate.  They include obesity, depression, hypertension, musculoskeletal disorders and high cholesterol.  Won't employers use social networking sites to screen out such applicants?  That would seem to turn the long-standing workers' compensation principle on its head where courts have said an employer takes the employee as it finds him or her.

Margaret:  You're right.  That is absolutely one of the risks of using social networking sites to weed out potential job applicants.  It is one of the biggest concerns that is voiced by the critics of using the Internet as sort of a job-screening tool.  Is it a risk?  Yes.  Absolutely, it is a risk.  The reality is sort of a variety of things.  One, there is a best practices way to manage the data you get – for example, I think it is a best practice for employers to not do any kind of social networking search or even a Google search until, at the very least, the initial interview.  It is even better if they can wait until after they made a conditional job offer, and then look online.  It is even better if you can get the employee's consent.  There is federal case law out there that says you can require the employee or potential employee to provide their consent for you to do an online search.  And then, consent cures a lot of ills – no doubt about it.  At the end of the day – putting all those best practices to the side – the employees are putting the information out there themselves.  It is voluntarily disclosed, whether through MySpace or Facebook or through some other mechanism – and makes its way online.  If it is posted voluntarily, there is not a lot of room to make a privacy complaint.  There is room to make a discrimination complaint, or the same thing in the workers' comp arena – taking the employee as you found him or her.  It all comes back to how you are going to manage the searches.  I think it is probably best practice to document what you see and what you are searching for in the first place.  There are also some issues as far as what you are going to do with the information at the end if you decide you are not going to hire someone because of what you find online.  If you had someone else do the search, then are you are dealing with other additional laws as well as what you have to disclose?  Frankly, I think probably the best thing to do is to disclose it to the potential employee.  If you are thinking you are not going to hire them because of what you found online – because as the critics will quickly point out, some things are not true – there is the potential that someone could post information that is just not accurate about another individual.  You don't necessarily want to not give the individual an opportunity to explain.  If I had to guess, I would say that's what the EEOC's position would be if they had one – is that you should sit the potential candidate down and say, "Look, this is the information we found.  Do you have some explanation for this?  Is there a background here?"  That is certainly what the EEOC encourages employers to do when it comes to criminal histories – the same exact process is involved.  I don't think there is any reason why you wouldn't do it in this case as well.  Because all you want at the end of the day is accurate information on which to base a decision.

Steve:  You mentioned the existence of some case law already.  With the way the technology has exploded, would you expect a similar explosion of litigation in this area?

Margaret:  As far as litigation regarding individuals suing an employer or potential employer for taking adverse action against them from what they found online, I don't think so, because it is such a difficult burden to prove that case when it comes to failure to hire – that is a difficult case, as it is, to prove the reason why someone did or did not hire an individual.  Now we are going to have to find not just what they were sort of thinking or made comments about during an interview, perhaps, but now it may not be that.  It may be broader.  It may be anything they found online.  Frankly, I think that is a tremendous burden for an employee to carry.  I think most plaintiff's lawyers would not be interested in it because of the amount of work that it would involve and the likelihood is so small that you would ever be able to prove such a thing.  So I don't think we are going to see litigation in that arena, but I would not be surprised if we saw things such as the 9th Circuit case.  That case was a very unique case.  It was a public employer - the police department.  The police department searched the employee's text messages on the phone. It was a pager provided by the police department.  You would think: It is our phone; why can't we look at it?  It was a narrow ruling.  The 9th Circuit held the employer could not look at the text messages.  I think that is where we are going to see more litigation, including in the workers' comp arena, where there is conduct going on with the employer searching the employee's personal e-mails or text messages or pager services while the employee is still employed.  I get calls about it all the time where the employer will say, "We had an employee who stormed out, who had a fight with his supervisor and who stormed out of work and quit.  We went to clean up his or her desk and realized their computer was still on, and lo and behold they were still logged into their e-mail account, their Yahoo account.  Can we download the information?  Can we print the information?"  I think that is where the litigation will stem from, not from the pre-employment scenario.

Steve:  Regardless, there are still going to be issues that will develop as time goes on.

Margaret:  Absolutely.  I posted a piece on my blog, actually, about whether this is going to be a problem for judges.  When you mentioned earlier about Gen-Y coming up and are we going to see a flood of this sort of recurring situation where Gen-Y enters the workplace having this digital paper trail behind them, the thought process goes, “Certainly, it is going to happen.  No doubt about it.”  Will we have this same question when we go to appoint and elect judges?  Will the judges have this digital paper trail?  At some point they certainly will.  There is no doubt about it as they rise to success.  This generation will carry this stuff around with them forever.  So it becomes very much a legacy issue as far as how the individuals themselves can deal with and manage it, knowing what is out there about them and to proactively, A, not putting inappropriate materials up for everyone's view, and/or B, doing their very best to limit the persons who can see it.  It is almost sort of a new job skill in a sense that potential employees entering the job market must have, that is, a clear understanding and practical application of protecting themselves online.  It is sort of a new job skill of the millennium I suppose.

Steve:  Ms. DiBianca, thank you very much for your time and sharing your thoughts and analysis on these issues.  I look forward to seeing more of your posts on delawareemploymentlawblog.com and having you back again for an update as to new issues that might arise.

Margaret:  It is my pleasure.  I'm sure there will be plenty to follow.

Steve:  Margaret DiBianca of Young, Conaway, Stargatt & Taylor in Wilmington, Delaware.