Investigating and Forgetting on the Web: Issues in the Internet and Employment and Labour Law

These are notes are from a panel presentation organized by the ABA Section on Labor and Employment Law at the American Bar Association 2011 conference in Toronto on Sunday, August 7, 2011. Panelists included Douglas E. Dexter, Farella Braun & Martell LLP, San Francisco; Roy L. Heenan, Heenan Blaikie LLP, Montreal; Mauricio Paez, Jones Day, New York; and Lauren Schwartzreich, Outten & Golden LLP, New York. The moderator was Cynthia E. Nance, Professor of Law, University of Arkansas, Fayetteville, Arkansas. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. This is the final instalment of my notes from ABA 2011. I welcome your comments and follow-up thoughts! 

Lauren Schwartzreich – Employee access to social media

Information on social networking sites (people's individual profiles) may not be accurate: could have been hacked, friends could be playing jokes, could be tongue-in-cheek. So, take care not to take everything at face value when looking at profiles of potential employees. There is a great potential for discrimination claims, such as claims under Americans With Disabilities Act and others. Not all information might be taken at face value.

Monitoring of employees' Internet use:

• What are the circumstances under which monitoring was put into place? Is it retaliation? Pretext for discrimination?
• Looking at the content of Internet use and communication: Was it protected speech under the National Labor Relations Act? Was it employee/lawyer communication and therefore protected?
• With respect to technology used for monitoring: did the employer surreptitiously use sign-on information to social networking site? Did the employer coerce a fellow staff member to reveal password?

With social media use in an employment setting, there are potential claims on both sides.

Douglas Dexter – Employer Response to Social Media and the Workplace

Social media is definitely a concern that employers have. Many HR departments are not using the Internet at all to research candidates' backgrounds. As the technology develops for the employees for maintaining Facebook sites and can detect who is looking at their sites, there will be more and more litigation. Individuals who are being searched are not currently generally cognizant that of being searched.

Each of us is capable of publishing information "on a gargantuan scale" and this is often done without a lot of thought. Those of us with Facebook pages, are on Twitter, have LinkedIn pages: can you tell who are your friends and when they joined? Are people from your workplace following you? A lot of people forget who they are publishing to. From the employers' perspective, this is the most troubling reason to monitor what is happening. People make remarks in a very public way about the workplace, co-workers and supervisors, competitors and products. If there is a critique of your companies' products, employees feel it is their obligation and right to respond resulting in thousands of "spokespeople" on the Internet. That is where we are getting our consumer information. Do we want our employees to be in that role?

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