May 10, 2016 May 10, 2016 May 10, 2016 May 10, 2016

Texas Jail Association ConferenceTexas Jail Association ConferenceTexas Jail Association ConferenceTexas Jail Association Conference

Presented by:

Sheila Gladstone, Employers’ Attorney

sgladstone@lglawfirm.com

512.322.5863

816 Congress Avenue Suite 1900

Austin, Texas 78701www.lglawfirm.com

� Include social media in policies about relationships with offenders◦ No friending

◦ Avoid too much self revelation

◦ How does disreputable on-line action affect relationships with offenders?

◦ Require use of privacy settings

◦ Safety and supervision issues

� What are the differences between professional pages and personal pages?

� What are some things a criminal justice professional would not tell an offender or victim but might post on social media?

� How might knowing the politics and social views of your office, affect your online presence/image?

Who is the hiring manager? I’m sure they would love to

know that you will hate the work.

We here at Cisco are versed in the Web.

Tweet, Tweet, TweetTweet, Tweet, TweetTweet, Tweet, TweetTweet, Tweet, Tweet

www.twitter.comwww.twitter.comwww.twitter.comwww.twitter.com

� Recruit

� Research applicants

� Investigate ◦ Leave fraud

◦ Investigate coworker harassment/bullying

◦ Misconduct – off duty affecting work place

� Communicate with employees

� Communicate with public

� 2014 careerbuilder.com survey: ◦ 51% of employers using social media to screen find content

causing rejection

� Inappropriate photos

� Drinking drugs

� Poor communication skills

� Discriminatory statements

� Lying about qualifications

� Cyberpsychology Journal Study:◦ If social media site shows candidate drinking beer, much

less likely to get job, or are offered lower salary, compared with family/professional pictures

◦ Easy to get to unlawful factors influencing decision

� Designate searcher who’s not decision-maker◦ Train � Where to look

� What’s prohibited

� Avoid claims of privacy◦ Disclose possibility of online search◦ Don’t use subterfuge: “surreptitious friending”◦ Stick with public areas

� Consistency

� Late in hiring process ◦ minimize discrimination claims

� Careful of health information

� 1. Name 8 social media outlets?

� 2. What percentage of online adults use Facebook?

� 3. From which social networking site did hashtags originate?

� 4. Who was the first twitter user to hit 1 million followers?

� 5. True or False. Twitter owns Vine.

A “Family Emergency”

• Return email from Return email from Return email from Return email from boss:boss:boss:boss:

– I completely I completely I completely I completely understand that understand that understand that understand that family emergencies family emergencies family emergencies family emergencies come upcome upcome upcome up

• I I I I sincerely sincerely sincerely sincerely hope hope hope hope everything is alrighteverything is alrighteverything is alrighteverything is alright

• Love the wand!Love the wand!Love the wand!Love the wand!

� 2013 video of Brit made headlines wrestling 6ft shark away from children in Australia

� Problem? He was on stress leave from work

� Termination memo:◦ “Whilst unfit to work, you were well enough to travel to

Australia and, according to recent news footage, you grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way.”

� How would this work under FMLA?◦ Is vacation inconsistent with stress? Check with dr.

◦ Pelligrino court (3rd Cir 2012) approved:

� Sick leave restriction in policy to stay near home

� Termination for claiming FMLA after vacation denied

� 6th Cir: Jaszczyszyn◦ Dr’s FMLA cert: “Completely incapacitated” during

flare-up◦ Posted pictures – 8 hours of fun at Polish heritage

festival◦ MSJ for employer: fair investigation, “honest belief”

& no causal connection

� Compare with 7th Cir: Ballard◦ FMLA leave to care for elderly, dying mother◦ Last wish – party in Vegas◦ Employee wins: Mother needed care in Vegas◦ FMLA regs also allow for “psychological comfort”

� 2012 Cal App. – Orange County:◦ Disabled employee (disfigured hand) reports coworker

misconduct

◦ Another employee starts off-duty blog about “rat”

◦ Comments escalate to “the claw”

� Reward offered for best “claw” picture

� Blog discussed in workplace

◦ Supervisors informed, don’t do much

� Blocked work access to blog but did not talk to bloggers

� Held: County liable for knowing of harassment and failing to take corrective action

1111stststst Amendment Amendment Amendment Amendment BALANCING BALANCING BALANCING BALANCING TESTTESTTESTTEST

•Does the Does the Does the Does the employer’s employer’s employer’s employer’s need outweigh need outweigh need outweigh need outweigh the the the the employee’s employee’s employee’s employee’s right?right?right?right?

Three part test for public employees:Three part test for public employees:Three part test for public employees:Three part test for public employees:

1.1.1.1. Is employee speaking as citizen or employee?Is employee speaking as citizen or employee?Is employee speaking as citizen or employee?Is employee speaking as citizen or employee?

Employer can regulate speech it has paid forEmployer can regulate speech it has paid forEmployer can regulate speech it has paid forEmployer can regulate speech it has paid for

2.2.2.2. Is the speech a matter of public concern?Is the speech a matter of public concern?Is the speech a matter of public concern?Is the speech a matter of public concern?

3.3.3.3. Does the employer’s interest in maintaining an Does the employer’s interest in maintaining an Does the employer’s interest in maintaining an Does the employer’s interest in maintaining an efficient and effective workplace outweigh efficient and effective workplace outweigh efficient and effective workplace outweigh efficient and effective workplace outweigh employee’s interest in free speech?employee’s interest in free speech?employee’s interest in free speech?employee’s interest in free speech?

� Protected:◦ “There used to be a time when you had to earn a

promotion or a spot in a specialty unit… but now it seems as though anything goes and beyond officer safety and liability, these positions have been devalued… and when something has no value, well it is worthless.”

� Not protected (same case):◦ “It’s hard to ‘lead by example’ when there isn’t one…

smh.”

◦ “Perfect example and you know what I’m talking about… How can ANYONE look up, or give respect to a SGT in Patrol with only 1 ½ years experience in the street? Or less as a matter of fact. It’s a lawsuit waiting to happen…”

1. YOLO

2. AMA

3. LMS

4. OOTD

5. ILYSM

6. FML

7. OOMF

8. RDH

9. LMAO

1. GNOC

2. IWSN

3. NIFOC

4. PIR; POS

5. CU46

6. CID

7. 420

8. LMIRL

9. TDTM

10. TWD

11. KPC

� Enjaian v. Schlissel, 2015 Text “not stalking because of stuck out tongue emoticon showed not serious?” Judge disagreed.

� Elonis v. US, 2015 Criminal conviction of threatening to harm wife remanded by USSC –◦ Must show intent to harm not just how it was

perceived - quoted rap lyrics and stuck out tongue emoticon should have been considered.

� Current cases make really interesting Tweets and blog entries!◦ Tweet: “Visited home on Franklin Street where sexual

abuse of children happening”

◦ Post: “This guy’s gaming the system – cancels office visit whenever he thinks he’s going to test positive”

◦ Paramedic’s post: “Look at these pictures of this guy getting his leg amputated!”

◦ Therapist’s Tweet: “I’m really traumatized today after having heard about terrible childhood abuse”

◦ Receptionist’s post: “Sometimes my job is really scary –a probationer came in today who looked like an angry Yeti!”

� Illinois discipline against experienced public defender, based on her blog:◦ “This stupid kid (#127409) is taking the rap for his

drug-dealing dirtbag of an older brother”

◦ “’Dennis’, the diabetic whose case I mentioned in Wednesday’s post . . . was standing there in court stoned, right in front of the judge, swearing he was clean and claiming ignorance as to why his blood sugar wasn’t being managed well.”

◦ Referred to judge as “a total asshole” and as “Judge Clueless”

� Nov 2015 Sr Judge in Minnesota publicly reprimanded for Facebook posts during trials◦ “In a felony trial now – State prosecuting a pimp.

Cases are always difficult because the women won’t cooperate.”

◦ After guilty verdict, posts used to show prejudgment.

� NC Judge “friended” lawyer in current case, discussed case – ex parte

� Same Judge independently gathered information about litigant, during the trial

� November 2013 State of Oregon � Child welfare worker complained on Facebook ◦ “Fancy cars, TV’s and food stamps”◦ Recommends sterilization for some parents

� Fired by State� Federal judge upheld termination◦ Job requires being “neutral appraiser of the settings

in which children live”◦ Damages her credibility in court◦ “Friends” include many colleagues in courts and

agencies

� Virginia daycare workers posting pics of developmentally disabled employees, and mocking them- “I’m sick of this s***!”◦ One of the mocking commenters was a manager

◦ Another employee compared toddler’s buck teeth to Cars

� Subway employee posted on Instagram photos of his penis on customer sandwiches.

He also posted picture of his frozen urine

� Several courts now agree that “liking” a Facebook post is a form of speech

� Now “liking” must also go through the 1st

amendment test

� First grade teacher terminated ◦ Parent complained she had referred to her students

as “future criminals” on Facebook

� ALJ: ◦ “thoughtless words can destroy the partnership

between home and school that is essential to the mission of the schools.”

� Court: ◦ “conduct destroys public respect for government

employees and confidence in the operation of public services.”

� 23-year-old high school math teacher

� Provocative selfies on Twitter account

� References to being high while grading

� Sexual “jail bait” references to students

� Local tv called teacher◦ Denied having current control

◦ Immediately posted “I’m tweeking out, news 9 just called”

� Advice to Managers and Employees:◦ Make your accounts less personal

� Don’t put your family at risk on public pages� Porn to mother-in-law?

� Don’t self-reveal to offenders unintentionally

◦ Up your security settings

◦ Never solicit connections with offenders

◦ Use a pseudonym for the nasty, sexy personal stuff you feel compelled to put on the Web

Contact: Sheila Gladstonesgladstone@lglawfirm.com

(512) 322-5863

816 Congress Avenue Suite 1900

Austin, Texas 78701www.lglawfirm.com