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Sex, lies and videotape!

Ok, I admit the header is a stretch for the topic of today, but your’e still here reading, right?  The “real” subject today, however, isn’t that far off because many employees misuse their office-supplied computers to engage in social media communication. The choices are now unlimited–MySpace started it all, but now you have the choice of logging on to Facebook, LinkedIn, YouTube, Twitter, Instagram, Pinterest and others.  In addition to the ethical problem of misusing your employer’s time, there is a real risk of social media postings causing any eventual employment case real harm. Let’s review today a few of the reasons that can happen. Doesn’t matter if the case is breach of contract, discrimination (sex harassment is our largest single category of discrimination-related cases, but it can also be age, physical condition, religion or any other protected category).

We have actually defended our client-employees at their depositions when the defense attorney has pulled out postings of our clients that the client believed was not available due to their privacy setting. Let’s review some ways to keep your own postings from being used against you.

1.  Do not use employer-supplied devices to do any social networking unrelated to your job! Employers routinely issue laptops, blackberries, iphones and the like. There is no expectation of privacy for social postings on any employer-issued device. Do not-ever-communicate with an attorney (whether you have retained them or not at that point) on a company-held device as courts have held you have waived the attorney client privilege.

2.  Find, read (probably in your handbook) and follow any policies put forth by your company regarding use of social media. Generally, you’ll find these policies allow the employer to review all communications you place on company-provided devices. In a recent case, our employee was communicating on her private e mail which she had opened on the company computer. Bad!

3. Understand privacy settings and procedures. If your (let’s say) FB account is in the public domain, make sure you’ve properly entered privacy settings. Test is yourself or have a friend do it. Don’t use FB or other social media to say bad things about your employer or supervisor.  Employers have actually filed lawsuits against employees for disparagement, trade secrets violations and the like based on these postings. Many times these are defense lawsuits filed only after the employee has filed their wrongful termination lawsuit.

4. Be wary of your “friends”. Can you say for certain that none of them have relationships with managers at your employer? don’t post anything you wouldn’t want to see blown up in front of a jury. Reject all friend requests from folks you don’t know.

5. Be proactive! Search your name on all of the sites you routinely visit. Remove anything that could be harmful to your case.Warn friends not to post anything that an employer could use against you. Know that employers can and do run routine name searches on all social media.

6. Check all passwords and change them, especially those on company-issued devices or websites. Keep in mind that California recently amended its Labor Code to prohibit employers from requiring an employee or applicant to reveal any passowrds or pass names for the avowed purpose of accessing personal, social medial information or divulging any personal social media. Labor Code 980. Further, there may be no retaliation against an individual who refuses to give this information. There is a major exception for investigations of employee misconduct.

7.  Remind your friends not to e mail you from any company devices.

8.  Be wary of contacting third parties to conduct a job search while you are employed. Your employer might check Linkedin to find that you are job searching. Embarrassing!

As these postings can and do come up during your deposition in your employment lawsuit, it’s critical that you advise your attorney of anything that might compromise your case before the deposition starts.

As always, this blog is educational in nature, not legal advise. Legal advise can only be given by an attorney licensed in your jurisdiction and familiar with the facts of your case. Steve D