Since you’re already giving up all productivity during the big dance, why not check out the latest in Suits by Suits?
Employees use their work e-mails for all kinds of communications, from the business-related to the personal and private. When a dispute arises, however, it’s getting more difficult to keep those private e-mails from seeing the light of day.
For example, last week’s Inbox highlighted one recent decision in which a New York federal court ruled that an executive had “no reasonable expectation of confidentiality or privacy” in his work e-mail. United States v. Finazzo, No. 10-CR-457 (E.D.N.Y. Feb. 19, 2013).
Today we're going to look at a federal statute that is increasingly becoming central to disputes between outgoing executives and their former employers -- a statute originally designed to prohibit computer "hacking."
Now, if you’re anything like me, when you hear the word “hacking,” you probably envision Matthew Broderick using a dial-up modem to break into his high school’s computer and change his grades. (In fact, Broderick pulled this same trick twice in the 1980s; first in WarGames and then again in Ferris Bueller’s Day Off.) Indeed, if you asked the average person to define “hacking,” they would probably come up with something like WarGames; that is, they would consider hacking to be breaking into a computer or network to which you were not given permission to access, in order to do something nefarious, like changing your grades or starting World War III.
It probably comes as no surprise that after those blockbuster movies (and some real-life events, too), Congress enacted a statute to prohibit “hacking” back in the heyday of the 1980s. That statute – the Computer Fraud and Abuse Act (“CFAA”) – is still the law today, and is codified at 18 U.S.C. §§ 1030.
But what you might not know is that in many areas of the country, there's a court-interpreted disconnect between the CFAA’s definition of hacking and Matthew Broderick. That disconnect, in turn, has become a very real issue today for departing executives and their employers. For example, if you’ve been fired and you delete files off of your laptop before returning it, you may be civilly and even criminally liable under the CFAA in some jurisdictions. (International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). (Less relevant – but more salacious – is the Justice Department’s efforts to prosecute a mom under the CFAA for lying about her age on MySpace.) United States v. Drew, 259 F.R.D. 449 (C.D. Calif. 2009).
It all depends on how the courts in your area interpret the CFAA. Read on....
Before you root, root, root for the Ravens in Superbowl XLVII; before you go pick up with that 100-piece platter of buffalo wings; before you even crack open a single cold one, you owe it to yourself to read this week's super-sized Inbox:
NLRB Holds Facebook Kvetching Among Co-Workers Is Protected “Concerted Activity,” But Caution Is Reasonable As Social Media Meets Established Legal Framework
Let’s be clear: this is not a blog about social media. It’s a blog focused on disputes between executives and the companies they work for and manage. Through that prism, we look at many different issues that affect these employment relationships, including pregnancy, politics, sports teams and even – ahem – insurance.
We’ve also written a lot recently about social media -- specifically the impact of Facebook, Twitter, LinkedIn and their kin on employee-employer relations. Social media are rather quickly changing many of the dynamics of how employees and companies interact, and the law is rapidly trying to catch up. That means there’s a fast flow of new developments in this area.
It’s important to write so much about this, we think, to be true to our core purpose of trying to keep you current on these developments. So at the risk of appearing to dominate our pages with references to Facebook, today we’ll introduce you to a new and unique wrinkle to come out of the intersection of the employment world and social media: a limited protection against being fired for workers who use their social media accounts to kvetch together about their jobs or their employers. Readers, meet the recent decision by the National Labor Relations Board in Hispanics United of Buffalo, Inc. and Carla Ortiz.
The use of social media by companies and executive employees continues to get them in trouble. We’ve covered that here, here, and here.
Some companies have concluded that having a social media policy in place is enough to avoid problems with Facebook, Twitter, Instagram, and whatever other means to communicate have come down the pike. But to work, a social media policy needs to meet at least two other conditions.
First, a social media policy has to be clear. Second, it also has to be communicated to, and clearly understood by, the company’s employees.
It may need more than that. But at a minimum, if the policy doesn’t have those two operating elements, then enforcing it can do a company and its managers more harm than good – at least when it comes to their reputations. That, at least, appears to be the lesson we can learn from the case of Rhonda Lee, a Shreveport, Louisiana TV meteorologist.
For two centuries, intellectual property disputes between employees and employers were guided by a relatively simple principle: if you did something “in the workplace” – and you didn’t specifically bargain with your employer to keep it – then what you did was “on the clock” and that work product belongs to your employer.
If you’re a business professional or a lawyer reading this blog, chances are that notion seems awfully quaint right about now. You know that smartphones are ubiquitous in our respective professions, and business gets done 24 hours a day, seven days a week. That important client email gets answered at midnight on a Saturday from your basement – not at 9 am the next Monday from your office.
Whether our brave new wireless world is a mixed blessing is probably beyond the scope of this blog. But one of the things we have noted is that the increasing commingling of the “workplace” with “personal” space is blazing new trails in previously settled areas of the law. We look at another recent development in this area in context after the jump.
This week's latest news in suits by suits:
This just in: on Thursday, Illinois Governor Pat Quinn signed a new law making it unlawful for an employer to request or require an employee or prospective employee to provide the password for his or her account or profile on a social networking site. The law, which amends Illinois’s existing Right to Privacy in the Workplace Act, and goes into effect on January 1, 2013, supposedly addresses the trend of employers requiring job applicants to give access to their Facebook profiles as part of the job application process.
As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.
Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.
John J. Connolly
Partner
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Andrew N. Goldfarb
Partner
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Sara Alpert Lawson
Partner
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Nicholas M. DiCarlo
Associate
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