‘Series’ is ‘social media legal’

Farragut West Knox Chamber of Commerce’s 2018 Breakfast Speaker Series gave employers first-hand knowledge in preventing lawsuits as a result of misuse of social media.

FWKCC hosted Randy Patterson, employment litigation attorney, as part of its 2018 Series in Rothchild Catering and Conference Center Tuesday morning, June 26.

Patterson, whose practice is with Baker Donelson law firm, has litigated all over the country, said Julie Blaylock, FWKCC president/CEO, adding, “He’s been rated as one of 2018’s ‘Best Lawyers for Employer Litigation.’’

“Now we have 21st century privacy concerns that have to do with electronic monitoring, e-mail, voice mail, physical examinations, criminal and credit checks and even genetic testing,” he said.

Standards for employees’ expectations of privacy for government employees, for example Town of Farragut employees, is different than those for privately owned businesses, Patterson added.

He advised business employers to be aware of social media and accept it. “I don’t think you are going to see a diminishing of social media,” he said.

Last April, Patterson said there were 2.13 billion users on Facebook.

He advised that employers need to be aware of the Computer Fraud and Abuse Act, which “cause criminal and civil cases of action against individuals who, knowingly with the attempt to defraud, accessed a computer without authorization or exceeded authorized access.”

An employer may look on an employee’s Facebook, as long as he only looks in public areas.

If an employer or other person creates a false profile and “befriends” the employee, that would be considered “an attempt to defraud,” Patterson said.

“If you have to create something false, never do it. Make sure your employees aren’t doing it on your business systems,” he added.

Patterson also advised employers to “stay vigilant” while conducting orientations regarding employees’ rights to privacy and training employees on proper use of social media. “When we start to consider social media, what we have to do is initially look at employees’ expectations of privacy because that’s really what we’re coming back to,” he said. “When you start prodding into what’s inside someone’s cell phone or what’s in the computer, do we have the right to do it?

“A better question is do we have an obligation to do it?” Patterson added. “There are privacy rights, but they are statutory. So, when we’re not talking about private employers, we’re not talking about constitutional guarantees, we’re talking about what might have been created by statutes or what might have been created by common law.”

Employers may not open an employees’ unopened e-mail, nor may employers “strong arm” employees to give up e-mails or stored information, Patterson said.

He warned employers “need some sort of consent from your employees for you to look and see what they are doing with (electronics — computer or other data system). And, there’s no better time that orientation. Have the employees, at orientation, sign an agreement (giving right to open or intercept unopened, stored electronic information).”