Privacy Issues in the Workplace

instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee. 582

According to the U.S. Supreme Court, this anti-retaliation provision extends to both written and verbal complaints. 583 However, the complaint must be “sufficient clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 584 While this requirement may be met by an “informal workplace grievance procedure,” a federal district court in Florida in 2011 refused to extend the FLSA anti-retaliation provision to a Facebook posting. 585 The court ruled that the Facebook posting was not a serious complaint but a “letting off steam” by the employee “simply voic[ing] her disagreement with her employer’s payment practices on her Facebook page.” 586 The court ruled this was not sufficient for a complaint as an employer must have “‘fair notice’ that an employee ‘is in fact making a complaint about an Act violation,’ rather than ‘just letting off steam.’” 587 b. Investigations into Off-Duty Conduct Unreasonable and highly intrusive investigations into off-duty conduct can also violate employees’ rights to privacy. 588 Courts look to various factors to determine whether an investigation is unreasonable. The factors include the following: It is not a violation of privacy to follow someone or watch him/her in public because there is no reasonable expectation of privacy while one is in public domain. This includes viewing information posted on website(s) such as Facebook or LinkedIn when the postings are unrestricted and accessible or open to the general public 589 , or when information is available to a sufficiently broad group of individuals such as “friends of friends” on Facebook. 590 Further, there is no violation of privacy involved when others willingly volunteer information. 591 In a 2013 federal court decision outside of California 592 , the court held that while the Stored Communications Act (“SCA”) applied to Facebook postings meant to be kept private, it does not apply if the disclosure is by the intended user or recipient of the posting. One of an employee’s Facebook friends voluntarily took screen shots of a Facebook posting and gave them to management. Management had not requested copies of the postings or asked the friend to spy on the employee. The employee was disciplined as a result of the postings. The court held that management’s obtainment of the posting (initiated by and voluntarily undertaken by the employee’s friend) did not violate the SCA.  whether the means used in the investigation are abnormal; and  whether the employer’s purpose in conducting the investigation is proper.

NOTE: In California, Labor Code section 980 prohibits an employer from requiring or requesting that an applicant or employee disclosure his/her user name or password to the employer for the purpose of accessing the individuals’ personal social media. 593 An exception exists when the employer

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