Internet & Technology Usage in the Networked Workplace: Legal …€¦ · The Recruitment Process ... Legal Implication of Employee Social Media Use (S. Dennis) National labour law

Internet & Technology Usage in the Networked Workplace: Legal Implications EDDY D. VENTOSE PROFESSOR OF LAW UNIVERSITY OF THE WEST INDIES, CAVE HILL CAMPUS

The Employment Process 2

Onboarding and

Employment

Offboarding and

termination

Recruitment Process

Legal Issues Discrimination

Negligent Hiring

Duty to Monitor Internet Activity

Breach of Privacy

Termination of Employment

Social Media Policies

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The Recruitment Process

Privacy – difficult to sustain because the information is disclosed voluntarily and available in the public domain

Questions: Is the information accurate? Did the applicant post the

information?

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The Recruitment Process What about the effect of this

information on discrimination laws? Employer might get information about

applicant’s: disability,

religion,

age,

national origin,

race,

sexual preference,

or membership

or other protected class.

Job applicants are now aware of this

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The Recruitment Process Employers routinely “Google” their prospective employees Applicants might lose employment opportunities based on negative

online information Employers usually conduct online searches as part of their pre-

employment screening processes

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2010 Microsoft Study Online Reputation in a Connected World

The recruiters and HR professionals surveyed are not only checking online sources to learn about

potential candidates, but they also report that their companies have made

online screening a formal requirement of the hiring

process.

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2010 Microsoft Study Online

Reputation in a Connected World

Of U.S. recruiters and HR professionals surveyed, 70% say they have rejected candidates based on information they

found online. Though not as frequently, respondents from

the U.K. and Germany report the same trend.

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2010 Microsoft Study Online Reputation in a Connected World

Recruiters and HR professionals surveyed report being very or somewhat concerned about the authenticity of the content they find

In all countries, recruiters and HR professionals say they believe the use of online reputational information will significantly increase over the next five years

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Discrimination 11

Discrimination

There is no constitutional right to freedom from discrimination in the private sector

The constitutional right exists to prevent discrimination against the State or a public authority

In the absence of any specific statutory basis which prevents such discrimination, it seemingly is lawful

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Discrimination

Trinidad and Tobago Equal Opportunity Act 2000 Discrimination against applicants8. An

employer or a prospective employer shall not discriminate against a person—

(a) in the arrangements he makes for the purpose of determining who should be offered employment;(b) in the terms or conditions on which employment is offered; or(c) by refusing or deliberately omitting to offer employment.

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Discrimination Discrimination against employees9. An employer shall not discriminate

against a person employed by him— (a) in the terms or conditions of employment that the employer affords

the person; (b) in the way the employer affords the person access to opportunities for

promotion, transfer or training or to any other benefit, facility or service associated with employment, or by refusing or deliberately omitting to afford the person access to them;

or

(c) by dismissing the person or subjecting the person to any other detriment.

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Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race,

color,

religion,

sex,

or national origin

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Discrimination

Gaskell v. Univ. of Kentucky (2010) G was rejected for employment as a scientist An employee circulated an email to members of

hiring Committee This detailed the G’s religious views It was visible on G’s personal website The Court held the G raised a triable issue of fact

as to whether G’s religious beliefs were a motivating factor in the University’s decision not to hire him.

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Discrimination

Point to Note Accessing impermissible information may infer improper motive even if it is not actually used used in making

the employment decision.

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18 Negligent Hiring

Negligent Hiring

An employer can be liable for negligent hiring if it “plac[es] a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of employment, it should have been foreseeable that the hired individual posed a threat of injury to others.”

Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 911 (Minn. 1983).

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Negligent Hiring

Employers have a “duty to exercise reasonable care in view of all the

circumstances in hiring individuals who, because of the employment, may pose

a threat of injury to members of the public.” Ponticas, 331 N.W.2d at 911

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Negligent Hiring

Burnett v. C.B.A. Sec. Serv., Inc. (1991) (“The tort of negligent hiring imposes a

general duty on the employer to conduct a reasonable background check on a potential employee to

ensure that the employee is fit for the position.”).

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Does the employer have a duty to monitor employee’s internet activity?

In Doe v. XYC Corporation A negligence action was started by a mother against her

husband’s employer The action was brought on behalf of her 10-year old

daughter. The husband used the workplace computer to send nude

photographs of the girl to pornographic websites.

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The employer knew that the husband improperly used his company computer to view pornographic websites.

The husband was asked by the employer to stop visiting inappropriate websites.

The husband failed to do so, and notwithstanding other complaints by workers, the employer took no further action against the employee.

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The New Jersey court allowed the mother’s claim for damages to proceed.

The court noted that the employer was aware that the husband used the company computer to access pornographic websites

Therefore, it was under a legal duty to investigate his activities to determine if they constituted illegal acts, such as viewing child pornography.

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Upon being put on notice of the employee’s improper behavior, the employer had a duty to: Investigate his activities; Take prompt action to stop any unauthorized

acts; Report it to the proper authorities; No privacy interest of the employee stood in

the way of the employer’s duty to investigate and take action.

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Pietrylo v. Hillstone Rest. Grp., (2009) Restaurant managers pressured an employee

into providing her MySpace password This enabled them to access a private,

invitation-only chat room They continued to access the chat room after

realizing the employee had reservations about providing her password

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The employee felt that “something bad might happen to her” if she did not provide access

The court held that this was not “proper authorization”

Consequently, it concluded that the restaurant managers violated the SCA

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Palleschi v. Cassano, (2010) A fire department fired a lieutenant for a posting

on Facebook He posted a photo of a computer screen

containing confidential information about a 911 caller’s complaint

This contained the caller’s name, address and phone number

Dismissal lawful – (fundamental term)

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City of San Diego v. Roe (2004) Plantiff was dismissed as a police officer Caught selling online videos with him stripping out

of a police uniform and masturbating This took place while the plaintiff was off-duty They related to his employment because he

depicted himself as a police officer in his uniform These off-duty actions exploited the employer’s

image and compromised the employer’s legitimate and substantial interests.

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Breach of Privacy 31

Breach of Privacy

There is no constitutional right to privacy in the private sector.

The constitutional right exists to prevent the State or a public authority from invading the privacy of citizens

In the absence of any specific statutory basis which prevents such breaches of privacy, it seemingly is lawful in the private sector

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Breach of Privacy

To reduce the likelihood of liability for invasion of privacy, the social media policy should state that computer access may be monitored, searched, or blocked

The policy should prohibit the disclosure of confidential information regarding the company, its customers, and its employees, as well as the use of company logos and trademarks without written consent.

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Breach of Privacy

Ehling v. Monmouth-Ocean Hosp. Service Corp., (2012)

Plaintiff (P) alleged employer gained access to her Facebook account

This was done when a supervisor asked a co-worker who was Facebook friends with plaintiff to access the account on a work computer in the supervisor’s presence

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Breach of Privacy

P argued that she had a reasonable expectation of privacy in her Facebook posting

P claimed that her posts were limited to her “friends”

That while some friends were co-workers, none were management employees

The court held that, “given the open-ended nature of the case law”, the plaintiff had stated a plausible claim for invasion of privacy.

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Termination of Employment 36


There may be termination by performance, by expiry of a fixed term, by agreement of the parties or by breach.

An employer has the right to dismiss an employee for just cause.

The Common Law on summary and constructive dismissal also applies.

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There are circumstances in which a dismissal arising from an employee’s use of social media sites can be lawful.

However, an employee who has one or more years’ continuous service with an employer has a statutory right not to be “unfairly dismissed”, where such legislation exists.

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There is no case law in the Commonwealth Caribbean on whether a dismissal arising from an employee’s use of social media sites is likely to be “fair”

This will change given the increasing use by employees of social media sites to comment on and address work-related issues.

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For an employer’s dismissal of an employee who has posted disparaging comments about his or her colleagues (including superiors) to be considered fair, the employer would have to be able to show that the decision to dismiss was a reasonable response in the circumstances.

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Depending on the seriousness of the employee’s misconduct, a lesser sanction than dismissal may be appropriate, such as a formal warning.

In determining whether or not the dismissal was “fair,” a court would most likely take into account the following factors:

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The nature of the information posted by the employee (e.g., the confidentiality of the information);

The actual or potential harm to the business; and Whether any such conduct has been clearly

prohibited by the employee’s contract or a company policy (e.g., a breach of the company’s anti-harassment policy).

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Social Media Policy Template

Policy statement Who is covered by the

policy The scope of the policy Responsibility for

implementation of the policy

Using social media sites in employer’s name

Using work related social media

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Social Media Policy Template

Personal use of social media sites

Rules for use of social media Monitoring use of social

media websites Monitoring and reviewing

existing social medial policy

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Acknowledgments

Template Social Media Policy (Beachcroft) Common law invasion of Privacy Claims in Social Media (S.

Taylor) Social Media and Employment Law (Morgan and Davis) Legal Implication of Employee Social Media Use (S. Dennis) National labour law profile: Trinidad and Tobago (A. Rahim) Negligent Hiring and the Information Age (K. Peebles)

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Documents

Internet & Technology Usage in the Networked Workplace: Legal …€¦ · The Recruitment Process ... Legal Implication of Employee Social Media Use (S. Dennis) National labour law