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Employer Guidance on Social Media Policies and the Department of Labor’s New Definition of Child Under the FMLA
U.S. Supreme Court Decision on Text Messages Provides Guidance to Private Employers in Drafting Electronic Communication Policies
With various forms of electronic communication (e-mail, text messages, etc.) becoming more prevalent in work settings, and with employer-issued equipment increasingly used for personal use, both on and off the job, issues arise regarding an employee’s expectation of privacy and an employer’s access and retrieval of such messages.
While text messages are not kept by the wireless companies for long, individuals who send e-mail via their mobile phones shouldn't think cell phone e-mail is vaporized. That's because e-mail sent by phone is processed the same way as computer e-mail, through servers which store and archive the messages in electronic databases. Although e-mail may be deleted from a computer or cell phone memory, it can usually be retrieved from the central server and, if required by subpoena, turned over as legal evidence in court cases.
Facts and Issues in Quon
Such were the issues in City of Ontario v. Quon, in which the City maintained that it did not violate the privacy rights of Quon, a member of the Ontario police department's SWAT team, when it reviewed transcripts of his and another officer's text messages on their department pagers and discovered that many of the messages were sexually explicit.
Quon, along with other SWAT Team members, were issued an official police department pager in 2002 to use for official business and light personal use. The City contends it reviewed the messages only to determine whether it needed to increase the character allotment for all pagers. The City told the Supreme Court justices that Quon had no reasonable expectation of privacy because he had signed a written City policy that explicitly stated there were no privacy rights in the use of City computers and related equipment, and that when pagers were later issued, Quon and other SWAT team members were told that the e-mail and Internet use policy covered the pagers as well.
The Supreme Court Decision
The Court, in a unanimous decision issued on June 17, 2010, held that the City’s search of Quon’s text messages was justified at its inception and that the measures used were reasonably related to the objectives of the search. The Court also determined that the procedures were not excessively intrusive because of the circumstances which gave rise to the search, which was whether Quon's use of his employer's equipment was personal or job-related. In fact, of the 456 messages Quon sent or received during work hours, less than 60 of the messages were work-related.
Although the Court only decided the constitutional issue of a public employee's right against unreasonable searches, private employers can follow the City's procedures as a guideline for developing their policy or procedures.
The key elements of the City’s policy cited in the decision are:
  1. The policy "reserved the right to monitor and log all network activity, including e-mail and internet use, with or without notice."
  2. The policy stated that "users should have no expectation of privacy or confidentiality when using these resources" and that the “use of inappropriate language would not be tolerated.”
  3. The City issued a memo to employees which stated that text messages were treated the same as e-mail messages and that the text messages would be "eligible for auditing."
  4. Employees (including Quon, the plaintiff) signed statements acknowledging that they read and understood the policy.
Drafting an Electronic Communication Policy
This decision gives employers further guidance on how to draft electronic communication policies and what procedures should be used in monitoring employer-provided digital media equipment by employees. Below is a list of elements that employers should consider in drafting a well-crafted, comprehensive electronic communication policy. The policy should:
  1. Cover all forms of communication, equipment and conduct.
  2. Include a statement that all electronic communication systems and all data on those systems are owned by the company and are to be used to benefit the company.
  3. Include a statement that if employees are permitted to access social media at work, that such access does not interfere with work.
  4. State that electronic communication systems may not be used at any time to solicit others for commercial purposes, for political or religious causes, or for any other non-job related solicitations.
  5. State that electronic communication systems may not be used in a way that would be disruptive or offensive to others or harmful to morale.
  6. Clearly express that, when using an employer computer system, an employee has no expectation of privacy. All messages received or sent on the electronic communication systems are not private, are considered company records and the company reserves the right to monitor and access those records at any time.
  7. Prohibit employees from accessing or reading electronic communications of other employees without their express written permission.
  8. Prohibit employees from revealing confidential or propriety information.
  9. Emphasize that online conduct must not violate the anti-discrimination policy or other codes of conduct. Electronic communications that contain ethnic slurs, racial references or anything that would constitute harassment of others are not permitted.
  10. Prohibit employees from displaying or transmitting sexually explicit messages or other similar information on any electronic communication device.
  11. Warn that the policy must be read in conjunction with any existing code of conduct, disciplinary scheme, or existing IT policy.
  12. Prohibit the use of employer logos/uniforms/brands in blogs or social networks.
  13. Emphasize that employees must not imply, explicitly or implicitly, that they represent the company in blogs or social networks.
  14. Include a catch-all provision prohibiting conduct that creates a conflict of interest or otherwise harms the employer’s business interests especially as it relates to blogs and social networks.
  15. Include a catch-all provision prohibiting any conduct that violates federal, state or local law.
  16. Direct employees to bring all questions related to the policy or permissible conduct to management.
  17. Warn about possible disciplinary action, up to and including termination, if the policy is violated.
  18. Contain a procedure for reporting offensive, harassing or criminal communications.
  19. Require the employee’s signature acknowledging receipt of the policy.
Once the policy is in place, employers must ensure that employees are aware of the policy and understand its parameters and train its employees regarding the requirements of the policy.
U.S. Department of Labor Expands Definition of “Son or Daughter” Under the Federal Family and Medical Leave Act (FMLA)
On June 22, 2010, the U.S. Department of Labor (DOL) issued an Administrative Interpretation which clarified and expanded the definition of “son or daughter” under the FMLA to ensure that individuals who care for a child, but do not have a legal or biological relationship to a child, can take protected leave.
Who is a Parent under the FMLA?
The definition of son or daughter under the FMLA includes the son or daughter of individuals who serve as if they were parents (in loco parentis). The FMLA regulations have a two-prong definition of in loco parentis, which includes “those with day-to-day responsibilities to care for and financially support a child.” Now, it is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.
The Interpretation further states that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.
The Family Relationship
When an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or a statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.
According to Secretary of Labor Hilda L. Solis, "No one who steps in to parent a child when that child's biological parents are absent or incapacitated should be denied leave by an employer because he or she is not the legal guardian. No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”
For example, under this new interpretation, an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Similarly, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child. This interpretation by the DOL makes it clear that “All families, including lesbian, gay, bisexual and transgender (LGBT) families, are protected by the FMLA."
If you have any questions about the issues in this article, or any other employment law matter, please call or e-mail me. Thanks.
Thomas P. Krukowski
Legislative Partner
Krukowski & Costello
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Contact Information 

Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   

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