Richmond Journal of Law and Technology

The first exclusively online law review.

Tag: social media

Blog: The New Four Walls of the Workplace

social-media-488886_640By: Micala MacRae, Associate Notes and Comments Editor

The Supreme Court has recognized workplace harassment as an actionable claim against an employer under Title VII of the Civil Rights Act of 1964.[1]  The rise in social media has created a new medium through which workplace harassment occurs.  Courts are just beginning to confront the issue of when social media harassment may be considered as part of the totality of the circumstances of a Title VII hostile work environment claim.  Traditionally, harassment has occurred through face-to-face verbal and physical acts in the workplace.  However, the changing nature of the workplace has continued to expand with the rise of new technology, which allows employees to stay connected to the work environment at different locations outside the physical boundaries of the office.  Harassment has moved beyond the physical walls of the workplace to the virtual workplace.  The broadening conception of the workplace and increasing use of social media in professional settings has expanded the potential employer liability under Title VII.

Social media has become a powerful communication tool that has fundamentally shifted the way people communicate.  Employers and employees increasingly utilize social media and social networking sites.[2]  While companies have turned to social media as a way to increase their business presence and reduce internal communication costs, there has been the consequence of increased social media harassment.  Although social media and social networking sites are not new forms of communication, their legal implications are just now coming into focus.[3]  Several cases have addressed hostile work environment claims stemming from other forms of electronic communication, there are few addressing claims based on social media communications.[4]

The New Jersey Supreme Court, in Blakey v. Continental Airlines, Inc., was one of the first courts to consider whether an employer is responsible for preventing employee harassment over social media.[5]  In Blakey, an airline employee filed a hostile work environment claim arising from allegedly defamatory statements published by co-workers on her employer’s electronic bulletin board.[6]  The electronic bulletin board was not maintained by the employer, but was accessible to all Continental pilots and crew members.[7]  Employees were also required to access the Forum to learn their flight schedules and assignments.[8]

The court analyzed the case under a traditional hostile work environment framework, concluding that the electronic bulletin board was no different from other social settings in which co-workers might interact.[9]  Although the electronic bulletin board was not part of the physical workplace, the employer had a duty to correct harassment occurring there if the employer obtained a sufficient benefit from the electronic forum as to make it part of the workplace.[10]  The court made clear that an employer does not have an affirmative duty to monitor the forum, but that liability may still attach if the company had direct or constructive knowledge of the content posted there.[11]  The court limited consideration of social media harassment to situations where the employer derived a benefit from the forum and it could therefore be considered part of the employee’s work environment.[12]

Workplace harassment is not longer limited to the traditional four walls of the workplace.  As technology and the boundaries of the workplace have changed, courts have struggled to modernize their framework for assessing hostile work environment claims under Title VII.  These problems will only become exacerbated as society continues to embrace social media throughout our daily lives and employers continue to integrate social media into their business practices.

 

[1] See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64-67 (1986) (finding that workplace harassment based on individual’s race, color, religion, sex, or national origin is actionable under Title VII of the Civil Rights Act).

[2] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[3] See, e.g., Kendall K. Hayden, The Proof Is in the Posting: How Social Media Is Changing the Law, 73 Tex. B.J. 188 (2010).

[4] Id.

[5] Jeremy Gelms, High-Tech Harassment: Employer Liability Under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012).

[6] Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 2000).

[7] Id. at 544.

[8] Id.

[9] Id. at 549.

[10] Blakey, 751 A.2d at 551.

[11] Id.

[12] Id.

Who will take care of your social media accounts?

Blog: My Executor Has Never Used the Internet: Estate Planning and Digital Property

By Associate Editor Kevin McCann

In 2007, a devoted World of Warcraft player decided it was time to put down his virtual crossbow and axe and sell his player account. Given the amount of time put into leveling up the abilities and gear of the character, the account was in high demand and sold for 7,000 Euros (approximately $9,000). What if before the player decided to sell this he experienced an unfortunate real life death? Most likely there would be no provision in his last will and testament stating what to do with this asset, and the account would have been deleted and the potential money lost.

While this is an extreme example of protecting a digital asset, estate planners and lawyers indicate that few people give the new reality of digital assets and online accounts consideration when drafting their wills. There is a range of issues to contemplate involving electronically stored items, such as preserving online photos, projects and personal records to how you would want your family to manage your social media accounts. A survey by McAfee revealed that U.S. consumers value their digital assets, on average, at nearly $55,000, with approximately $19,000 attributed to personal memories (photographs and videos) alone. A living person would certainly want to determine the distribution of these electronically stored personal memories just as if they were photos in an attic.

In addition, social media websites such as Facebook and Twitter now have deceased user policies. Both policies allow interested parties to select one of two options: either delete the user account entirely or save the account in order to memorialize the deceased and allow others to interact with his or her preserved account. (For an interesting look at the differences between the two policies, see http://news.cnet.com/8301-27076_3-20013219-248.html). One could see a situation where a person would want his account deleted to save his family embarrassment, or the opposite situation where a person would want his family to continue to interact with his account through the grieving process after his death. This would be another consideration to contemplate when drafting a will.

Several states have enacted legislation that pertains to post-death access of digital accounts. For instance, a New Jersey bill was introduced in June of this year that would grant the executor or administrator of an estate the power to take control of any account of the deceased person for social networking, blogging, or e-mail service websites. However, many of the states’ legislation specify that the deceased must have designated the representative in writing prior to the death. The U.S. General Services Administration recommends people set up a “social-media will,” and even go as far as naming a separate “digital executor” who is more up to speed on technology innovations and is more qualified to oversee the administration of the deceased’s digital assets. In addition, estate planners advise that the probate process would take considerable less time if the devisee were to include in his will a list of all accounts, passwords, and security question answers. Otherwise the executor would have to go through the process of submitting death certificates and relationship authentication to each of the websites.

The internet has changed the way society communicates and expresses itself, and various legal issues arose with this modernization. The protection of online assets at death is now a growing concern, with states just beginning to recognize the need for legislation. As the internet continues to reinvent itself with new services to better connect the world, so to must the estate planning process strive to keep up with these innovations.

 

Additional Resources:

Wall Street Journal Article on issue

Chicago tribune article on the issue

List of online services that are designed to help someone plan for probate process of digital assets.

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