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Tuesday
May192015

Claims Dismissed: Social Media Site's Reference Search Not a Background Check

Lawyer for EmployerEmployment Defense

 

by Nicole Kamm
818.907.3235

 

Good news for employers using social media to vet job applicants: A Federal District Court recently ruled the technology used in LinkedIn's Reference Search does not constitute a “consumer background check” of employees and job candidates.

Reference Search provides a list of coworkers or former coworkers of a particular LinkedIn member to potential employers paying for the service. Subscribers who use Reference Search are encouraged to send In-mail to the individuals on the list, presumably in an effort to find more information about the job seeker.

The plaintiff's in the lawsuit Sweet v. LinkedIn alleged LinkedIn’s search feature violated the Fair Credit Reporting Act (FCRA). The FCRA was enacted in 1970 to ensure consumer reporting agencies protect consumer privacy, and impart fair information.

Employers are entitled to conduct background checks, but under federal and state law must comply with several requirements, including obtaining written permission and making certain disclosures. They must also provide the reason(s) a candidate was not selected should something in the background check lead to an adverse decision in hiring or promotion.

Tracee Sweet and the members of her purported class contended they were passed over for jobs because of Reference Search results. She and three others sought to form a class on behalf of all LinkedIn members who had reports run on their professional backgrounds in the last two years through Reference Search.  

Plaintiffs alleged five violations of the FCRA:

1. LinkedIn is a consumer reporting agency, which failed to obtain required certifications.

2. LinkedIn does not verify or make reasonable efforts to verify, the identities of those using Reference Search, or the purpose for which those users are compiling reports.

3. The FCRA requires consumer reporting agencies to assure maximum possible accuracy of the information provided; LinkedIn failed to undertake any reasonable procedures to do so.

4. The FCRA requires agencies to provide a "Notice to Users of Consumer Reports", which includes a user's obligations to provide a notice to consumers when an adverse action is taken, in this case a refusal of employment. LinkedIn does not provide this Notice to Users.

5. Because LinkedIn provides information to users without inquiring into the users' purposes for obtaining the information, the social media site does not have reason to believe the users have permissible purposes as defined by FCRA.

The plaintiffs sought monetary damages, punitive damages, and attorneys' fees and costs. LinkedIn moved for dismissal, citing the plaintiffs' failure to state a claim, and prevailed.

The federal court judge held that:

1. The purpose of LinkedIn is for members to "share their professional identities online" – the information compiled through the site does not constitute a consumer report.

2. LinkedIn serves to "carry out consumers' information-sharing objectives", whereas a consumer reporting agency's purpose is to furnish information to third parties.

3. The information collected via Reference Search comes from the searcher's networks, not the employment candidate's networks.

4. LinkedIn does not market this information as reliable.

The plaintiffs may amend their complaint in future, so the case is not entirely put to rest yet. Arguably though, the information provided via Reference Search is not so different from the information an employer may glean by calling or emailing contacts s/he may already know at a candidate's former places of work.

Background Checks

For the moment, employers may continue to use social media websites as an informal type of background check without rising to the level of a “consumer reporting agency.” However, employers should only do so with caution. California employers are prohibited, under Labor Code §980, from:

1. Asking employees or prospective hires for usernames and passwords of their social media accounts;

2. Retaliating, by discharging, disciplining, or threatening job seekers or employees for refusing to provide their usernames and passwords;

3. Asking candidates or employees to log on to their personal accounts while in the presence of the employer, management, human resources representative, etc.

Employers using social media may also be at risk for discrimination claims though, should their findings result in hiring, firing or promotion decisions based on protected characteristics they may discover in search results.

For example, an employee who thinks s/he was passed over for a promotion because s/he Tweeted about personal medical conditions or political beliefs may allege Fair Employment and Housing violations.

Before Googling the next applicant or current employees, employers should consider the risks carefully and consult employment counsel.

Nicole Kamm is an Employment Defense Attorney. Contact her via email: nkamm@lewitthackman.com; or by phone: 818.907.3235

Friday
Jan302015

Hitting the Wall: Facebook and Divorce

Divorce LawyerChild Custody and Support Attorney

by Vanessa Soto Nellis
818.907.3274

 

A new survey sponsored by a group in the UK links Facebook to 33 percent of all divorces, up from a 2009 study that cites the social media site in 20 percent of divorce filings.

Facebook and DivorceFacebook can serve as a conduit for people reuniting with old flames or meeting new partners. Spouses get concerned when they realize their significant others are spending more time online, getting texts in the middle of the night, or are suddenly very possessive of their phones, tablets and computers.

But whether or not Facebook is actually a cause of divorce remains to be seen – it could be that people who are unhappy in their relationships log in to social media sites more often as a means of escape, or to seek advice or emotional support.

Social Media & Grounds For Divorce

Since California is a no fault divorce state, spending more time online or engaging in virtual or actual affairs is not necessarily relevant in the eyes of a Family Law Court.

What many divorce lawyers can use however, is evidence from Facebook, Twitter and other social media platforms that show a soon-to-be ex-spouse is not fully disclosing financial assets, which could affect the equitable distribution of property or financial liability.

Social media posts can also show when someone is engaging in behavior that could affect custody proceedings. Photos can help prove a case for bad parenting, or instability at home.  They can also show when an individual is being dishonest about a need to change visitation schedules, i.e. if a parent claims a need to work late when s/he is really out at a concert, or checking in to a club or restaurant.

"Unfriending" or blocking an ex doesn't necessarily give a Facebook user more privacy, as married couples tend to have many mutual friends online and offline. In most breakups, some of those friends will choose sides when a couple divorces – and are perfectly willing to provide information regarding the activities and posts to one party or the other.

Additionally, they may put photos and relate activities on their own walls and feeds, unwittingly providing a wealth of information for the opposing party and their attorneys.

These are examples of the information that can be found online by just about anyone. But what about data that seems to be hidden, or deleted?

Digital Discovery through Cyber Forensics

Divorce Cyber Forensics

Every now and then a spouse makes a more serious attempt to hide information critical to divorce proceedings and settlements. In that case, divorce attorneys may hire a digital forensics expert.

Through forensics, digital discovery can reveal time stamps of activity and: 

  • Call logs and SIM card data

  • Text messages and emails

  • Calendar entries

  • Photos and videos

  • Visits to pornography sites

  • Usernames and passwords

  • Financial transfers, purchases and other monetary transactions

  • Encrypted,  damaged or temporary file information

Remember that even if someone tries to destroy their electronic devices, some data can still be retrieved through cyber forensics. Moreover, an attempt to destroy evidence can be used to bolster the opposing party's case.

Vanessa Soto Nellis is a Certified Specialist in Family Law, designated by the State Bar of California Board of Legal Specialization. Contact her via email: vnellis@lewitthackman.com or by phone: 818.907.3274. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Feb262014

New Family Law Adds Impersonation to Domestic Violence Claims

 

by Michelle S. Robins

 

Identity thieves beware, restraining orders can and will be issued against you in the future. 

Certain sections of the California Family Code regarding domestic violence have been repealed and amended, going into effect as of July 1, 2014. Currently, the law says a court may decree that a party cannot molest, threaten, attack, strike, stalk, sexually assault, batter, harass, destroy the personal property, contact (via telephone or mail, directly or indirectly) or otherwise disturb the peace of certain named family or household members.  

In July, add credibly impersonate or falsely personate, to this list.

Assembly Bill 157, written by Nora Campos of the 27th District, makes it a crime to falsely impersonate or steal the identity of a domestic violence victim. According to Campos' State Assembly website, false impersonation online is becoming a growing problem for those who suffer abuse.

When the law goes into effect, a judge may issue an ex parte restraining order against a person that falsely impersonates another person.  This means that the alleged domestic violence victim may not have to give the domestic violence perpetrator notice of a request for a restraining order or the time required for notice may be shortened. 

Furthermore, in some cases, the alleged domestic violence perpetrator does not even have to be present in court when temporary domestic violence restraining orders are issued.  Once restraining orders are issued, those who violate the order may be held in contempt of, which is a misdemeanor.

Disclaimer:

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Dec172013

Trademark Disputes – Lessons Learned by Roubaix-ing Owners the Wrong Way

by Stephan Mihalovits 

Roubaix, like Champagne, is a locale in France – though the town is known more for being the end point of the Paris-Roubaix Cycling Race, than for grapes.

Specialized is a bike maker well-known among professional cyclists. They carry a line of Roubaix road bikes that run thousands, sometimes tens of thousands, of dollars.

Enter Dan Richter, a Canadian veteran who opened Café Roubaix Bicycle Studio in Cochrane, Alberta. Richter began his career by building custom bike wheels and other cycling products – Richter Bicycles moved to Cochrane in 2012 and became Café Roubaix.

It didn't take long for Specialized, understandably wanting to protect its brand, to send Richter a "cease and desist" letter regarding his use of Roubaix for his business this summer. Like most cease and desist letters, it threatened a lawsuit should Richter refuse to change the name of his brick and mortar store. The shop owner, not having the funds to fight the cycling giant, resigned himself to losing this particular battle.

 

Social Media: Specialized Bumps in the Road

 

It all looked like an easy cross to the Roubaix finish line for Specialized, until the Calgary Herald got wind of the story.

Cycling enthusiasts reading of Richter's uphill battle took up his cause, and carried the fight to social media. Many changed their twitter handles to include Roubaix in their names. Others protested with hate tweets. Specialized's Facebook page took hits regarding company boycotts and suggestions for establishing a legal defense fund for Richter.

That's when a U.S. company, Advanced Sports International (ASI), stepped in.

As it turns out Specialized was out of bounds in making its claim. ASI owns Fuji Bikes and holds the trademark for Roubaix in the United States. Steve Frothingham of ASI said Specialized lacked the authority to pursue a trademark case against the owner of the small bike shop.

ASI reached out to Richter, telling him he can continue to use the name under a license, which ASI is willing to grant. ASI noted it believes Richter did not intend for his customers to confuse the bike shop with the Roubaix line of bikes, and that consumers should be able to tell the difference.

 

Trademark Disputes & Lessons Learned

 

This tussle between various users of the same mark shows how important it is to read the lay of the land before engaging in a trademark dispute.

Whether it knew about ASI, or whether it knew but didn’t care, Specialized should have known its own rights were inferior to another company.  Companies should tread cautiously before seeking to enforce a mark that may stir a competitor with superior rights.

The second lesson is another example of how public relations must be considered in trademark disputes.

In an age when social media can deliver gossip instantly, companies should consider ways of resolving trademark disputes without creating potentially harmful PR. These could include phone calls instead of letters, or more conciliatory language.

Problems are seldom resolved when a lawyer writes a scorched-earth letter. More often, this approach bolsters the other side, and the dispute becomes intractable. With a firm message and reasonable language, trademark holders can better get a handle on their legal and public relations issues.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Wednesday
May012013

Social Media and the Workplace: Federal Court Rules Facebook Posting Does Not Violate Non-Solicitation Agreement

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

In the first holding of its kind, an Oklahoma court ruled a former employee’s Facebook posts did not violate non-solicitation agreement with prior employer.

Pre-Paid Legal Services, Inc. (PPLSI) recently received a partial denial from a federal court in response to PPLSI's request for a preliminary injunction. PPLSI alleged a former sales manager’s posts to Facebook and Twitter put the employee in breach of his non-solicitation agreement.

Workplace Social Media PolicyWhat did the employee do, exactly, to prompt PPLSI to seek an injunction?

  • As a new employee at PPLSI, the employee signed an agreement that prohibited him from soliciting other PPLSI employees for two years after his departure or termination from the company.

  • While working for PPLSI, he was promoted to regional sales manager. The employee created incentive programs to reward & encourage members of his sales team – he also created Facebook pages specific to these programs.

  • When he took a job with another company, the employee used those social media pages to announce his transition.

  • The sales manager also posted messages on his personal social media pages regarding his new employer.

  • The employee further requested PPLSI's employees to follow him on Twitter, after he made the transition to his new company.

PPLSI claimed the former employee's posts to Facebook and Twitter put him in breach of the non-solicitation agreement. The company sought the preliminary injunction to keep the sales manager from “soliciting” current PPLSI employees using those social media sites.

The court found the employee’s Tweets and Facebook posts did not constitute direct solicitation of PPLSI employees.  Rather, they were merely general posts about job opportunities not specifically targeted to the employee’s former coworkers.  

The court looked to a case involving solicitation via Facebook, where the employee’s new employer posted an announcement about the employee’s new position and the employee then “Friended” several of his former employer’s clients on Facebook.  In that case, the former employer’s injunction request was also denied absent evidence the posts resulted in any actual departures from the former employer to the new employer.

Be advised: California employers should note the law on employee non-solicitation agreements remains unsettled.  If you have questions about such agreements or how this case may impact you, please let us know.

 

Nicole Kamm is an employment defense attorney dedicated to protecting employers from employee claims. Contact her via email: nkamm@lewitthackman.com for more information about employment agreements and protecting your company's assets.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
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