Shhhhh… Pillow Talk and Work Do Not Mix

Pillow talk, nighttime tales, sheet secrets (whatever your preferred phrasing) and the sharing it promotes has long been an issue in situations requiring discretion. Especially when you move that conversation from the privacy of your home to electronic means. Luckily, when the relationship elevates to the level of marriage, communications between spouses are considered confidential and cannot be used in court as evidence, right?!?!  Maybe not. Although often a saving grace for chatty or trusting spouses there are a few exceptions and a few risks not worth taking.  Specifically, emails sent by a husband from his work email account to his wife were held not protected by marital privilege.   Be careful what you send via work email!

It is important to keep private matters separate from business operation.  We all have occasion to communicate on matters not related to work while at work. Be strategic about the communications, the information disclosed, and the medium you use to communicate this information.  Make sure you know your company’s policies on computer use, phone use, and their rights and ownership over everything you produce, use, receive, etc.  Being uninformed can land you in a lot of trouble both with your employer and otherwise.

In U.S. v. Hamilton, the government obtained a conviction against a former Virginia Delegate for federal program bribery and extortion, relying in part on emails between Mr. Hamilton and his wife.  You have no rights to privacy in work provided spaces. This means that not even privileges that usually surmount the circumstances in which the information comes are protection.

On appeal the Fourth Circuit explained: “[T]o be covered by the [marital communication] privilege, a communication between spouses must be confidential; ‘voluntary disclosure’ of a communication waives the privilege.” Basically, Hamilton waived the privilege because the emails were sent from and received in his Newport News school system work email account. Importantly, the Court relied on a computer usage policy adopted by the school system after the events in question, but prior to the government’s investigation in 2009, which provided that users would have no expectation of privacy even as to “stored” (i.e., old, archived) emails. Hamilton expressly agreed to this policy and, thereafter, took no additional steps to secure the privacy of the emails with his wife (e.g., by forwarding the e-mails to a personal account and deleting them from the work account). As a result, Hamilton waived the marital communication privilege.

The company reinforced the fact that company computers and networks are to be used for business purposes only through their policy on work email account not being private and the property of the company.  This is why its important to read and know your companies policies on all things but especially electronic information and social media because it is such a new and pervasive area of everyday life.   Moral of the story, know company policies and keep the electronic sheet secrets/pillow talk on your own, personal e-mail accounts and devices!  Or even better return to traditional means and have that conversation in the confines of your own home.

 

 

Who Owns Your Profile?: Be Careful How & Where You Use Social Media

Companies claiming ownership over an employee’s social media has become a common occurrence as the value is social media rises. Employees build the goodwill of their social media by promoting themselves and many time in promoting themselves, promoting their position and company. When an employee chooses to use their social media to focus on their work within a company, the work their company does, the effect of the work of their company, industry trends as the relate to their company or position, etc. they run the risk of their company viewing their social media as a valuable tool in their marketing and PR  arsenal. This phenomenon has become common in the Twittersphere and has been litigated in cases such as PhoneDog, LLC v. Kravitz (which is still being litigated). One social media forum that has surprisingly entered this battle in LinkedIn.  These issues are why employees need to be-careful what they post and companies need to have clear social media policies.

A recent summary judgment ruling issued out of the Eastern District of Pennsylvania, Eagle v. Morgan, et al., CIV-No. 11-4303, 2012 U.S. Dist. LEXIS 143614 (E.D. Pa. Oct. 4, 2012), highlights the need for employers to draft clear social media policies. Plaintiff Dr. Eagle was president of  Edcomm (defendant), a banking education company. She created a LinkedIn account and used that account to promote Edcomm’s banking education services, foster her reputation as a businesswoman, reconnect with family, friends, and colleagues, and build social and professional relationships.  Edcomm claimed that it had an unwritten informal policy of “owning” the LinkedIn accounts of its former employees after they left the company.  Dr. Eagle was terminated and denied access to her LinkedIn account by Edcomm, which had accessed her account, changed her password and altered her LinkedIn profile to display the company’s new president’s name and photograph while retaining some elements of Dr. Eagle’s profile. Dr. Eagle was able to regain control of her LinkedIn account but sued Edcomm and its employees, alleging, among other things, violations of the Computer Fraud and Abuse Act and the Lanham Act, and invasion of privacy by misappropriation of her identity.

On October 4, 2012, the district court granted Edcomm’s motion for summary judgment to dismiss Dr. Eagle’s federal claims.  The court decided that a reasonable jury could not find that Dr. Eagle had suffered a “legally cognizable loss or damage in the brief period in which her LinkedIn Account was accessed and controlled by Edcomm,” the district dismissed her CFAA claim.  The district court concluded that Dr. Eagle’s claim of lost business opportunities and damage to her reputation were “speculative” at best and “not compensable under the CFAA,” and that even if types of damages were recoverable, she failed to present any evidence to quantify these damages.  The district court also dismissed Dr. Eagle’s claims under the Lanham Act, finding that she had failed to produce any evidence of a likelihood of confusion to the public by switching her name and photo with that of her successor. The district court did, however, retain jurisdiction over Dr. Eagle’s remaining state law claims as well as Edcomm’s counterclaims (a conversion claim over a laptop and a misappropriation claim that asserts that Edcomm was the rightful owner of the LinkedIn account).

Although this case does not yet provide a clear understanding of an employer’s rights and reach in terms of social media, it is clear that both employers and employees must be aware of their actions.

Employers
draft a social media policy that clearly delineates your stance make sure to pay close attention to the National Labor Relations Act, the decisions coming from the National Labor Relations Board and all relevant state and federal laws.

Employees 1) be careful about the extent to which you promote the work of your company, 2) know the difference between your personal social media and company social media, 3) be careful of where you use social media and what computer you use when posting, and 4) make sure you know your company’s social media policy.