Social Media and the Changing Workplace

Employment attorney is at leading edge of developments By Jonathan Horn  U-T San Diego

As it is with so many areas of life, the Internet is changing the nature of the workplace.

Employees carry smartphones that give them constant access to their friends.  Facebook, Twitter and YouTube are easy distractions.  And the digital world gives employees an outlet to express themselves publicly, for better or worse.

The access to social media and laws around it is unpredictable.  But when new developments occur, one person at the leading edge is Daniel Eaton, an employment attorney with the San Diego firm Seltzer Caplan McMahon Vitek.

“The whole issue of the Internet has changed the law of the workplace in a fascinating way that really couldn’t have been predicted when I first got into this business, and yet the essential human nature of the employer-employee dynamic and the law that covers it remains,” said Eaton, 49.

The latest rule to note?  Eaton said it’s a law going into effect Jan. 1 that generally makes it illegal in California for employers to demand social media passwords from employees and applicants.

Eaton, going on 15 years with the firm, recently caught up with U T San Diego to talk about aspects of California employment law, past, present and future.  He became interested in practicing workplace law in the 1980s, when he handled those issues as an aide to the late Sen. Arlen Specter of Pennsylvania. Eaton, who mostly represents employers, also makes himself available to local media — including the U-T — to answer questions about how laws apply to certain workplace situations.

“I like to think when I do those sorts of things I am in a sense educating the broader public, and I’m always learning,” said Eaton, also an adjunct professor at San Diego State University.

Here are some of Eaton’s thoughts on issues facing California’s workforce.

Q:  What’s the biggest uncertainty in employment law moving forward?

A:  The toughest thing is going to be to what extent the growing availability of the Internet affects an employee’s expectation of privacy.  How is it that employers and employees deal with the increasing complexity that the Internet, that computers, that mobile devices bring to the workplace?  There are a whole bunch of issues that I cannot even predict right now that affect the law of the workplace that will be common talk among employment lawyers in the next 10 years.

Q: There’s an odd conundrum when it comes to California employment.  Jobs here are “at will,” meaning an employee can quit at any time and be fired at any time, with or without cause.  Then why does it matter if someone is fired for doing something wrong?

A:  California is an “at will, but” state.  In a sense that yes, the law is very clear ... an employee can be terminated for any reason, and an employee can leave for any reason, but there are various protections that prohibit termination or refusing to hire.  You cannot be fired because you are a member of a minority.  There is very strong protection for whistle-blowers.  You cannot be fired because you talk about your wages to a fellow employee — not a lot of people know that.

Q:  OK, but how can you prove you were fired because of those reasons?  Couldn’t they just let you go?

A:  The California Supreme Court is considering that very question in the context of what happens if an employee is fired for what’s called a mixed motive.  What if part of it is unlawful and part of it is perfectly legitimate and just an extension of their business judgment?

Q:  Doesn’t that just contradict the “at-will” laws?

A:  The interesting thing is people say “it’s an at-will state, so I can be fired for any reason or no reason at all.”  That’s true except you cannot be fired for a reason that offends public policy.  That is really the critical difference, and that’s why I say it’s an “at will, but” state.  If you talk to an employee, they’re going to say, “well, my boss gets up on the wrong side of the bed they can fire me.”  If you talk to an employer, they’re going to say, “Oh my God, I can’t get rid of a problem worker because of all the buts in the at-will nature of employment.” Q:  Do you see that in a climate with higher unemployment that employees are less likely to raise issues at work?

A:  I think that the operating principle of the workplace remains one that Aesop first issued in one of his fables, and that is “Don’t bite the hand that feeds you.”  I think that a lot of employees, especially in a tight economy, are living according to that very wise aphorism.  So the short answer is that people are generally, unless really pushed, not going to complain needlessly, unless there is some sort of fundamental public policy issue.

Q:  What are some of the unique employment laws in California?

A:  One is that California employers are required to give a certain number of hours off per year to employees unpaid to attend their child’s activities (40 hours per year, a maximum eight per month for employers with 25 or more workers in one location, with reasonable notice).  California, unlike federal law, requires you to be paid overtime for hours worked in excess of eight in a day; for most states, it’s more than 40 hours in a workweek.  California law flatly prohibits employers from requiring employees — except in very limited circumstances — to sign noncompete agreements, meaning they can’t be blocked from working for a competitor at their next job (they still cannot give out trade secrets).

About Daniel Eaton

Title:  Partner at Seltzer Caplan McMahon Vitek.  Also teaches employment law courses at San Diego State University.

Age: 49

Born:  New York City

Lives:  Downtown San Diego

College:  Georgetown University, School of Foreign Service, 1984

Law School:  Harvard University, 1989

Fun Fact:  Eaton attended Harvard Law School a year behind Michelle Obama and two years ahead of Barack Obama, knowing both.

Worked:  As a Senate aide to Arlen Specter between college and law school.

Covered:  Student government as a reporter for the Georgetown Hoya, the university’s main student newspaper.

December 21st, 2012  |  Categories: News
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