The Censor: He Has a Face, and He is Us.

Face to Face:  Social Media and the Masks We Share

For those intrepid few who dare to express themselves as indiscreetly as the English language will allow, there is AB 1844, soon to be officially Labor Code Section 980 et seq.  The California legislature has come to the protection of persons too dense, too indifferent, too rich, too independent or too eccentric to give a damn what they post on social media.   Of course, it also has provided protection for even the cautious citizen who has no personality to hide.  No one, not even someone whose greatest contribution to public debate is how to cook vegetables, should be required to give up his username and password to a meddling employer.

In the early days of social media, I think there was an illusion that a person could be “real” in that environment.  The illusion is over.  If you want to be real, transparent, and open, well, it turns out the old fashioned friends who actually meet over dinner or shared activities may be the answer after all.

Did we once hope that social media would provide that open intellectual space where viewpoints had room to breathe?  If so, we soon were jolted from our dream by investigators who actively rooted out contrarian or offensive viewpoints to deny us employment or decline our membership applications.

     

But I sense the communal censor has grown stronger over the years.  That golden age of naïve Facebook users produced some colorful and interesting narcissists.   It still does.  But most people have learned at this point that “image control” and “job protection” or “career management” involve either putting nothing on social media, or only the most bland and boring of information that will assure you that coveted status of “safe,” “normal,” and “employable.”  The social mask we wear now must expand to cover a face the size of Facebook.    Maybe LinkedIn was always the final resting place of the “social” self. 

In the work environment, “punished” most often means fired.  “Freedom of speech” does not exist in non-public work environments.   Employers with “open door” and “open communication” policies routinely punish employees criticizing a manager or company practice.    In healthy and innovative work environments, wild, jarring and “indelicately” expressed ideas may actually be encouraged.  Alas, in many other places the free expression of an idea will likely cost your job.  But what if the “speech” occurs outside the workplace, after work hours, and states strong negative employee opinions about the employer?  In a phrase:  what are an employee’s privacy rights?

A lot has been written on this topic of “social media privacy.”  I will not rewrite it.  Instead, I will simply reference the essential new developments created by some NLRB rulings and AB 1844.  The National Labor Relations Board in May 2012 issued Memorandum OM 12-59 that traces the NLRB rulings, and provides a “model” social media policy.  The concern of the NLRB appears to be primarily that social media restrictions can be overbroad in limiting “concerted activity” among workers to address grievances at work.   I have posted the complete “Office of the General Counsel” memorandum for your reading pleasure.  It includes a very useful model policy that General Counsel states is NLRA compliant.

Labor Code Section 980(a)-(e) will prohibit an employer from requiring the employee to access the employee’s social media in the employer’s presence, or to provide the employer with the employee’s username or password to a social media site.  Section 980(e) is an anti-retaliation provision to protect employees who resist illegal employer demands that violate Section 980.  

The remedies for a Section 980 violation appear to be a general civil cause of action for violation of the statute, and quite likely a common law right to proceed with a “wrongful termination in violation of public policy.”  Section 2 of the new statute states that the Labor Commissioner has no duty to investigate or determine if a violation has occurred, leading me to conclude that there is no “exhaustion of administrative remedies” requirement of the employee, who may proceed by direct civil action for the full measure of tort damages. 

Here is the full text of the NLRB General Counsel's Opinion Memorandum:  Memorandum OM 12-59 Office of the General Counsel .

Here is the full text of AB-1844, soon to be CA Labor Code Sec. 980:  California Legislative Information: AB-1844 Social Media Privacy

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Let’s Face Up to Facebook Discovery: the Defense Can Discover an Employee’s Postings.

She says she was sexually harassed, but the defendant employer wants to get access to her Facebook postings because it has information that she lists herself as “single” while in truth married.  The employer asserts this is enough information to bring into question her credibility on the sexual harassment charge.  It wants a court order requiring the employee to provide password and username to access and search the site.  How will a court likely rule? 

Another way to ask this question is:  What are the employee’s reasonable privacy expectations, having filed a harassment suit against the employer.  Restrictions on the scope of the social media search are likely, but are total denial of a search legally mandated by privacy expectations? 

Let’s begin by stating that there is no definitive California a case law on this subject as yet.   The legislature has not entered the arena with specific discovery statutes aimed at social media.  Yet, some guiding principles are available.

First, the terms of agreement between the social media host and its user will be very relevant.  If the user has agreed that the posting is for full or partial public viewing, the “privacy expectation” will be determined in part by that agreement.  See Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4^th 1125.  In Mackelprang v. Fidelity National Title Agency of Nevade Inc. 2007 U.S. Dist. LEXIS 2379 (D. Nev. Jan. 9, 2007) the court denied an employer’s motion to compel the employee to give direct access to her MySpace account.  The facts are those stated by the opening paragraph of this  article.  The court reasoned that the “open ended” search for all MySpace positings was too broad and invasive.  It suggested a more focused description of the discoverable information. 

Discovery seeking “direct access” from the employee has a better chance of surviving a motion for protective order from the employee.  Third party access, that is, serving a subpoena on the website host itself, is unlikely of success due to federal laws generally designed to promote free use the internet.  In Crispin v. Christian Audigier Inc. 2010 U.S. Dist. Lexis 52832 (2010) the Court ruled that the Stored Communications Act (SCA) prohibited a power of subpoena to compel Facebook and MySpace to disclose plaintiff’s  private messages (non-posted, and to specific identified persons).  However, the Court remanded on the question of whether wall postings were discoverable under the SCA.  This 2010 decision, or one like it, is likely to be ultimately the subject of a published decision on the matter of SCA’s impact on the discovery of wall postings.

 

Bottom line:  the law is unsettled, but the best chance of getting social media information through formal discovery is to seek direct access and by a particularized discovery request anticipating the “privacy” objection by the employee.  Because the law is unsettled, the best approach is to enter into a stipulated restriction on the scope of search, and to agree to the confidentiality of the information except as necessary to the presentation of proof at trial or hearing. 

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