Dear valued clients and supporters: This month's newsletter will cover 1) Updates to the New York Earned Sick Time Act and 2) A recent Court of Appeals decision on Facebook privacy in the context of litigation.
Effective May 5, 2018, employees will be entitled to use their paid time off already guaranteed under the current New York Earned Sick Time Act ("NYESTA") when they or a family member is the victim of a family offense, sexual offense, stalking, or human trafficking. The amendments to the NYESTA does not award additional time off - it only expands the reasons for which it can be used. These new entitlements, called "Safe time," include taking time off to obtain services from a domestic violence shelter, rape crisis center, or other shelter service; to participate in safety planning, relocation, or other actions required to ensure the safety of the victim; to meet with an attorney in connection with a family offense, sexual offense, stalking, or human trafficking; to file a complaint with law enforcement; to enroll children in a new school; or to take other actions that may be necessary to address the physical, psychological, or economic health or safety of the employee or family member. Additionally, the definition of "Family Member" will also be expanded to include any individual related by blood and any individual whose close association with the employee is the equivalent of a family relationship. Finally, the short name of the law will be updated to the "Earned Safe and Sick Time Act." Overall, these changes affect nearly all employees in New York City and employers will need to incorporate them into their current policies and procedures.
The New York Court of Appeals recently addressed the issue of how much of an individual's Facebook page must be shared with the opposing party in a lawsuit. In Forman v. Henkin, the plaintiff brought a personal injury suit when she suffered serious injuries after falling off a horse owned by the defendant. The plaintiff claimed that her injuries greatly impacted her daily life, which she used to document regularly on her Facebook page, but not longer could because of her injuries. During discovery, the defendant demanded access to the plaintiff's Facebook account, alleging that it would contain pictures and other information relevant to the plaintiff's claims. The plaintiff argued that her account was private and should not be discoverable. New York's highest court in this decision held that courts should require the disclosure of information that is likely to be found on a particular Facebook page that is material and relevant to the claims and injuries at issue in a given case. The Court expressly found that the privacy settings of a Facebook page do not impact this analysis because otherwise an individual could simply set her page to private to avoid discovery. Ultimately, the Court essentially applied traditional principles of discovery in holding that courts should balance requiring the disclosure of that which is necessary with preventing the disclosure of non-relevant materials.
In sum, Facebook users should be warned that regardless of their privacy settings, pictures and other information contained on their pages is discoverable if it is material and necessary to a lawsuit.
Readers are encouraged to follow us on Twitter (@OutsideLegalLLP) and Facebook to receive updates on these and other issues throughout the month.
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