So What’s An Employer To Do In The Current Social Media Situation?

How do you counsel a client whose employee is making questionable posts online concerning his/her job?  Advising employers these days involves staying on top of numerous evolving social media issues. Those specific challenges are met daily by Jan Michelsen, our faculty participant from Ogletree, Deakins, Nash, Smoak & Stewart, Indianapolis.  Jan has broad experience in counseling and defending management in a myriad of labor and employment law matters. She provides fellow lawyers with the benefit of her expertise during ICLEF’s “Recent Developments in Employment Law” seminar. I am grateful that she agreed to bring Law Tips readers some food-for-thought on current trends and how employers might set policy to avoid problems. 

According to a 2014 BTI Consulting survey, the growth of social media will lead to employment litigation being 1 of only 4 areas of law projected to grow in 2014. Another interesting piece of survey information was that this growth may be more in counseling than litigation. This study also emphasizes that social media use is still expanding as people increase the types of devices they use for this purpose: desktops, laptops, tablets and smart phones. One example of this growth speaks loudly in the fact that there are over 400 active social media sites today.

The workplace social media issues now involve risks to eee’s and eer’s of social media-based personnel decisions, new privacy legislation, ownership of social media accounts and risks for attorneys. This burgeoning social media activity includes employers vetting applicants through observance of their online activity. In response to this increased practice there are online resources making potential applicants aware of where they may be watched. An example of one tool is WeKnowWhatYoureDoing.com that calls itself a social networking privacy experiment. Concerned employees can go to this website to find what pieces of their Facebook activity are publicly viewable, in case they may wish to delete some of their posts.

There are other types of sites that exist to assist people in being safe online, in avoiding employment problems. For instance, the Digital Information World website has advice on the dangers of using social media under the influence. One can find there the topic entitled “Are You Sure You’re Cool To Tweet Right Now?”  that includes reminders such as this: Drink 4: Threat level = Irresponsible, in danger of texting your ex.

Another illustration of the prominence of social media in the employment world is the widely-accepted term: “dooced.”  Dooced is Internet slang for being fired from your job because of what you’ve written in a blog or website. The cases of people losing their jobs over social media activities is a growing trend. For example, here are the top 10 posts that will get you fired:

  • Hating your job.
  • Public persecution.
  • Drinking and driving.
  • Public intoxication and hangovers.
  • Relationship troubles.
  • Your great timeline milestones.
  • Steer clear of controversy.
  • Moonlighting.
  • Cursing a LOT.
  • Posting anything bad FROM work.

From the other side of the above situation, the involvement of social media in employment is becoming so public that employees are asking on Facebook to be fired, they are hijacking Twitter accounts to broadcast live tweet firings. Employees are even quitting via video; and coal miners and teachers have “gone wild” with their own accounts for these purposes.

These developing uses of the Internet in employer/employee relationships brings the discussion around to the resulting lawsuits. The important question for employers is:

What are employers being sued about in social media based decisions?

  • Discrimination.
  • Retaliation
  • Harassment
  • Anti-union animus
  • Disclosure of confidential information
  • Invasion of privacy
  • Defamation
  • Violations of HIPAA, ADA, FMLA
  • Negligent hiring or supervison

So, What’s An Employer To Do?

  • Draft policies that are consistent with and incorporate other company policies.
  • Think twice before firing or disciplining for social media activity.

Be sure no other employees are involved.

Talk to your legal counsel.

Be wary when posts are expressions of opinion.

  • NLRB will look beyond the words of the policy and to the context and totality of circumstances and the nature of the charging party’s individual dispute.
  • It’s critical to have appropriate monitoring policies and practices, as NLRB will consider how you learned about the social media discussion that prompted the adverse decision; i.e., public postings v. surreptitious discovery.
  • No quick triggers. Analyze each situation just as you would communication by other means.

Here are some employer disclaimers you may want to include:

  • “This policy is not intended to interfere in any way with any applicable federal, state or local law.”
  • “Application of this policy will be consistent with the National Labor Relations Act.”
  • “This policy will not be interpreted or enforced in a manner that would interfere with employees’ rights to discuss work-related issues with one another.”

Control your social media:

If an employee maintains an accounts on the employer’s behalf, address ownership issues.

  • Written social media-specific agreements.
  • Company should create/register the account.
  • Change the password when an employee leaves.
  • Result may differ based on when the account was created, who maintains it, and what kind of content.

What Would YOU Do?  When social media issues hit home, think about:

  • Source(s) of the information.
  • Which policies may be indicated.
  • Potential effects on employee morale.
  • Potential public relations implications.
  • Potential liability.
    • For the post itself.
    • For the disciplinary action.

Hopefully this overview of social media’s involvement in employment law will assist when the next issue develops for you or your client.  Thanks very much to Jan Michelsen for providing her timely advice for guiding employers in social media policy. If you are interested in the comprehensive On Demand Seminar, “Recent Developments in Employment Law”, Click Here.

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About our Law Tips faculty participants:
Jan Michelsen, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, counsels and defends management in various labor and employment law matters. Her areas of expertise include employment discrimination litigation, EEOC charges and complaints, sexual harassment, the ADEA, the ADA, the FMLA, WARN, in federal and state courts and before regulatory agencies.  She also counsels in the area of employment contract disputes, employee privacy issues, social media and Web 2.0, electronic communications, wage and hour issues, wrongful discharge claims, and other state tort claims, such as defamation. Prior to her legal career, Jan directed communications, strategic planning, and marketing functions as Director of Business Development at Indiana University Medical Center.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

 

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Trial Court Must Make Spousal Maintenance Determination at Time of Decree

Case: Marjorie O. Lesley v. Robert T. Lesley 
by Mike Kohlhaas, Bingham Greenebaum Doll (with thanks to Tamara McMillian)

HELD: A trial court must make a spousal maintenance determination at the time the Decree is entered, and it may not defer that decision to await additional information that becomes available after Decree.

FACTS AND PROCEDURAL HISTORY:
Husband and Wife married in 1991. By 2009, Wife had been diagnosed with lupus, fibromyalgia, degenerative disc disease, irritable bowel syndrome, depression, and anxiety. Wife filed with SSA for disability benefits, which was denied by SSA and which Wife appealed.

In 2010, while Wife’s appeal of her SSA denial was pending, Husband filed for divorce. In response, Wife filed a request for incapacity based maintenance in the divorce.

In 2011, after a final hearing, the trial court issued its Decree. In the Decree, the trial court recited that Wife’s claims for SSA disability had been denied, and that Wife had not otherwise presented a case to the trial court that would support a maintenance claim. Importantly, however, the Decree added: “Upon a determination by the Social Security Administration that Wife is disabled, the Court will re-evaluate issues of child support, maintenance, and educational expenses, retroactively.”

In late 2011, the SSA ruled on Wife’s appeal of her disability benefits denial, determining that Wife had been disabled retroactive to October 2009. Wife then filed a petition with the trial court requesting spousal maintenance based upon the SSA’s determination. After a hearing, the trial court issued an order granting Wife rehabilitative maintenance – not incapacity-based maintenance – for a period retroactive to the date of Decree and for a term of three years. Wife appealed the trial court’s award of rehabilitative maintenance, rather than incapacity-based maintenance; Husband cross-appealed arguing that the trial court lacked authority to reconsider its original denial of maintenance in its Decree.

The Court of Appeals noted this to be an issue of first impression. The Court noted that the burden to establish her incapacity at the final hearing rested entirely upon Wife, and the trial court’s findings indicate that Wife failed to meet that burden. “As a matter of law, the trial court could not retain authority to reevaluate, postpone, or defer that determination based upon a subsequent decision from the SSA.”

The trial court’s award of maintenance in favor of Wife was reversed.

Judge Baker wrote a separate concurring opinion, indicating that the better approach for the trial court may have been to continue its final hearing until after the SSA had made its determination of Wife’s appeal of the denial of her benefits.

To view the text of this opinion in its entirety, click here: Marjorie O. Lesley v. Robert T. Lesley

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The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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The Age of Digital Evidence: Protecting Your Family Law Clients

Whether you find the digital evidence age interesting and challenging or consider it a frustration and nuisance, it makes no difference. The evidence is clear.  Among the many fields of law taking a head on plunge into this arena is family law. Lawyers are busy preparing clients for the electronic exposure that is possible in their everyday activities.  Otherwise, these challenges may sneak up on you.

Fortunately, our faculty members are willing to share their expertise in these electronic tracking developments. I appreciate the contributions of  Ryan Cassman, Judge Andrea Trevino, Tim Wilcox, and Bob Zoss. Following is a sample of their training session during ICLEF’s 11th Annual Family Law Institute  entitled “Electronic Spying and Tracking Spouses in Divorce: What’s Available? What’s Appropriate?”

Our panel begins by looking at the trends that are bringing digital evidence into play for many practitioners:

The Trend of Digital Evidence
94 percent of 1,600 lawyers recently surveyed by the American Academy of Matrimonial Lawyers (AAML) claimed that text messages had increasingly become the most damaging evidence in divorce cases. The same survey shows sharp increases in evidence via texting (62 percent), social media (81 percent) and emails (23 percent).  (http://www.aaml.org/about-the-academy/press/press-releases/divorce/lawyers-finding-divorce-app-smart-phones)

The New Addiction?
Facebook currently estimates its monthly active users at 845 million and its daily active users at 483 million. This means that more than half of all active Facebook users access the site daily.  (http://jamesburchill.com/how-many-active-users-does-facebook-really-have)

And in case that doesn’t amaze you, how about these stats:

  • 65% of online adults use social media.
  • 89% of those under 30 use social media.
  • 69% of those under 30 use social media DAILY.

Courts are entering orders impacting social media data
In the Gallion case in Connecticut (http://www.forbes.com/sites/kashmirhill/2011/11/07/judge-orders-divorcing-couple-to-swap-facebook-and-dating-site-passwords) the husband saw things on their shared computer that made him suspect incriminating evidence would be found in the wife’s social media accounts.  The Court ordered the divorcing couple to hand over the passwords to their online dating accounts to their opposing counsel.

Truth Trumps Privacy
Divorcing parties may be granted full access to MySpace and Facebook, including private and deleted data. See Romano v. Steelcase, Inc., 907 N.Y.S.2D 650 (Sept. 2010) And another example of divorcing parties being ordered to turn over passwords, usernames and logins for social networking sites is Zimmerman v. Weis Markets, Inc. (May 19, 2011, Pennsylvania).  (http://www.scribd.com/doc/59083827/Zimmerman-v-Weis-Markets-Inc)

Considering the looming reality of these activities, what should be the lawyer’s instructions to his/her clients? Following is succinct advice offered by these experts for preventing problems:

Litigation Checklist for Your Clients

  • Don’t brag.  Think twice about “bragging” to your ex via any social networking post.  Party pics can get you in trouble in more ways than just one.
  • Block your ex.  Block your ex-spouse from all your social media sites and consider blocking or limiting availability to certain family, friends and colleagues who are sympathic to your ex-spouse.
  • Change your passwords and protect your digital equipment. It is possible your ex-spouse has or had access to your laptop or smart phone and can hijack passwords and even install spyware software. Take the time to change all your important passwords. If you suspect spyware or are just curious, you can take your laptop or smart phone to a spyware detection specialist.
  • Stop Checking In and Geotagging. Don’t let everyone know your whereabouts during this sensitive time in your life.  It’s time to chill out on any location services software such as “check ins” on your iPhone or with Instagram’s newfangled “geotagging” capabilities.

Of course, the legalities pertaining to digital evidence is a topic for an in-depth discussion. These faculty members’ presentations extend into such areas as Authentication and Preservation of Social Media Evidence, the Electronic Communications Privacy Act of 1986 and the Indiana Voyeurism Law. For their thorough training session the 11th Annual Family Law Institute is available as an On Demand Seminar and as Video Replay’s by Clicking Here.

One could say that the overall advice from this family law panel is: Be aware of the impact of your digital activity and the possibilities of digital watching!  Fortunately, I’m able to add to the discussion of digital surveillance with further commentary by our security expert, Tim Wilcox, CEO of International Investigators, Inc. Stay tuned for next week’s Law Tips when Tim provides enlightening information about malware and spyware that may be lurking on your clients’ cell phone.

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About our Law Tips faculty participants:
Ryan H. Cassman, Coots, Henke and Wheeler, Carmel, Indiana, focuses his practice on representing individuals in divorce, collaborative divorce, custody, adoption, guardianship and support matters. His practice also includes drafting and negotiating premarital agreements, and with other attorneys at Coots, Henke and Wheeler, assisting clients in preserving their business interests and investments, pre and post-divorce. Ryan is a Certified Domestics Relations Mediator and a Certified Family Law Specialist.

Andrea R. Trevino, Magistrate, Allen Circuit Court, Fort Wayne, Indiana, was appointed to her position in August 2013. She presides primarily over the IV-D Division of the Circuit Court. Ms. Trevino grew up in Fort Wayne, Indiana and received her J.D from IU Law School Bloomington in 2003. Prior to her appointment as Magistrate, Andrea practiced law for ten years, concentrating in family law, civil litigation and appellate work.

Tim Wilcox, International Investigators, Inc, CEO, Indianapolis, is a skilled and well-known Indiana investigator. He specializes in security consultation, internal theft investigations, protection of proprietary information and communications, computer and cellular forensics, and litigation support.  He has been instrumental in reducing corporate shrinkage and eliminating vulnerabilities for companies worldwide. Mr. Wilcox is a member of the World Association of Detectives, the National Assn. Of Legal Investgators, the Society for Competitive Intelligence Professionals, the American Society for Industrial Security and the Indiana Association of Professional Investigators.

Robert E. “Bob” Zoss, Sr., Bob Zoss Law Office LLC, Evansville, was born and raised in South Bend, Indiana.  He received his JD from Indiana University Law School Bloomington. He has practiced law in Evansville, Indiana, since 1974, initially working for a local law firm and then as Deputy Prosecutor until his retirement from that office in March, 2012. During his some 35 years as a felony trial deputy, Bob has handled many murders and other high profile cases on behalf of the State of Indiana.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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5 Hot Tips On Trust Administration

If you are involved in trusts, this is your opportunity to brush up. I have five tips for you on trust administration from Ellen Deeter, a lawyer with extensive background in the area. Ms. Deeter spent most of the past 35 years working in bank trust departments, including as senior trust counsel.  Ellen generously agreed to share her expertise with Law Tips readers.

Tip #1 – Read the entire trust agreement!

• After you have read the trust agreement from beginning to end, including the “boilerplate”, read it again. And then a third time.

• Next, write out a synopsis of the trust agreement, highlighting key provisions. Pay particular attention to the provisions identifying the beneficiaries (current and future), noting mandatory and discretionary distributions, termination provisions, and allocations between principal and income.

• Every time you receive a request for a distribution refer back to the document and make sure that the request is:

1. from someone entitled to receive it.

2. for a purpose that is allowed in the document.

Tip #2 – Read and know the Indiana statutes on trusts (make Indiana Code Title 30 your friend).

• In addition to the Indiana Trust Code, also become familiar with the Indiana Probate Code, the Uniform Principal and Income Act, Total Return Unitrusts. Don’t forget the Internal Revenue Code and the provisions governing the taxation of trusts.

Tip #3 – Establish a process, follow it consistently; communicate.

• Don’t wait until you get a request from a beneficiary for a discretionary distribution to let him or her know the type of information you will need to evaluate the request. Establish ground rules ahead of time for how the request is to be made and the types of documentation that they will need to provide.

• Explain to beneficiaries that the trustee has a duty to both income beneficiaries and remaindermen.

• Let beneficiaries know how the trust (and beneficiaries) are taxed on income earned in the trust and when to expect to receive their Schedule K -1s.

Tip #4 – Understand the difference between accounting income and accounting principal.

Become familiar with the Indiana Uniform Principal and Income Act. Read the document to detennine if the trust agreement makes provisions contrary to the act (which it may) or whether the trust agreement gives the trustee discretion on allocating receipts and disbursements between income and principal.

• Explain to the beneficiaries what the term “net income” means. General (simplified) rule: interest, dividends, rents, royalties less 1/2the trustee fee.

Tip #5 – Document your files.

• Beneficiaries are entitled to inspect your files. Remember that as you write notes to the file.

• Beneficiaries have been known to be litigious (surprise, surprise). Keep copies of all correspondence and emails. Make written, contemporaneous notes of telephone conversations and meetings. Follow meetings up with letters confirming the discussion

Ms. Deeter’s bonus tip: Realize what you DON’T know and engage professionals to assist you. 

I hope you polished your trust administration skills through Ellen Deeter’s review. If you would like to take advantage of the CLE program that includes her discussion of trusts, look for the Video Replay or On Demand Seminar of 120 Hot Tips in Probate, Guardianships, Trusts and Tax by Clicking Here.

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About our Law Tips faculty participant:
Ellen M. Deeter earned her J.D. magna cum laude from Indiana University School of Law at Indianapolis in 1982. She started her career as an inheritance tax examiner for the Indiana Department of Revenue in 1978. Since that time Ms. Deeter has spent most of her career with bank trust departments, including Indiana National Bank, Wachovia Bank, N.A. and Merchants National Bank. She recently retired from The National Bank of Indianapolis, where she worked in various roles over 18 years, including serving as the Manager of the Personal Trusts and Estates Group and as Senior Trust Counsel.  She also is a Certified Trust and Financial Advisor.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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