Law Office Management
Mar. 2, 2010
Legal Work Grows as Bosses Mingle in Social Media Sites
California lawyers get busy helping companies deal with Facebook trouble.
by Emmett Berg As employees everywhere become increasingly addicted to social media sites such as Facebook and YouTube, California lawyers are lining up to keep - or get - corporate clients out of trouble in cases involving harassment, violation of privacy, and defamation. More than two-thirds of companies allow employees to use social networking sites for business purposes, according to a September 2008 report from Awareness Incorporated. Meanwhile, 45 percent of companies told a different survey that they used social media themselves to research job candidates last year, up from 22 percent in 2008. The nature of social media websites - which a user can log onto at work, at home, or on the go through a mobile phone - creates ambiguities when employees harass or defame colleagues, says Margaret Hart Edwards, a San Francisco-based shareholder at Littler Mendelson. For example, if a worker transmits objectionable speech or images from a personal mobile phone to a social media site that others access at the office, the employer may have trouble meeting the requirements for providing a safe work environment. "Case law indicates harassment can occur after hours and off premises - it's murky, and we're just beginning to see the consequences," Edwards says. To be sure, employer blunders in social media are already beginning to surface: Two restaurant workers were awarded back pay and punitive damages after managers accessed content on their MySpace page about work - and then fired them. In this closely watched case (Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009)), a federal court last fall upheld an earlier jury verdict. In another incident last year, a public relations crisis forced the city of Bozeman, Montana, to backtrack after it tried to extract social-networking user names and passwords from all who applied for jobs. Not surprisingly, then, attorneys today are frequently tasked with helping companies "resolve a tension between productivity and use" of social media, according to the general counsel of a Silicon Valley?based social-media company who asked not to be named. If employees - or even job applicants - are indiscreet in postings to sites that others at the workplace access, supervisors must be careful not to mishandle the compromising information, says Maria Rodriguez, a partner at the Los Angeles offices of Winston & Strawn. According to Rodriguez, employers are not always aware they may be called on to provide relevant background information used to rescind a job offer or decline to make one. "Mistakes absolutely happen, and employers better be darned careful how they make [and record] decisions" based on information found on a social media site, she says. Still, the growth in advising companies on social media policies will be "incremental," says Rob Dellenbach, a partner at Reed Smith's San Francisco offices. "It touches every client in one way or another, but it's not necessarily a practice area." Eventually, he adds, companies will have one unified policy governing communications, rather than separate policies for phones, the Internet, and email. But defense specialists expect social media to keep them busy in the courtroom. "I think there will be more litigation over privacy practices," says David Kramer, a Palo Alto?based partner at Wilson Sonsini Goodrich & Rosati. "It's a fertile area for class-action attorneys. There are lots of potentially relevant statutes - some old and some rushed into place - most of which have no significant body of case law around them."
Kari Santos
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