1. Overview of Social Media and

Technological Developments

2. Recruitment and Cyber-Vetting

3. Social Media, Free Speech and

Discipline

4. Cyber-Evidence

5. Policies & Best Practices

• 320 million active Twitter users

– 100 million daily active users

• 120 million unique monthly visitors

• Average of 350 billion tweets per day; 46% of Twitter users tweet at least once a day

• 700 YouTube links shared on Twitter every minute

• Average users spend 170 minutes on Twitter per month

• Most followed on Twitter (as of 5.12.17):1. Katy Perry 6. YouTube

2. Justin Bieber 7. Ellen Degeneres

3. Barack Obama 8. Lady Gaga

4. Taylor Swift 9. Twitter

5. Rihanna 10. Justin Timberlake

• Most popular Twitter hashtags in 2016:1. #Rio2016 6. #Brexit

2. #Election2016 7. #BlackLivesMatter

3. #PokemonGo 8. #Trump

4. #Euro2016 9. #RIP

5. #Oscars 10. #GameofThrones

• Over 1.65 billion active users worldwide (15% increase from 2015)

– 83 million are fake

• 1.09 billion logon daily (16% increase from 2015)

• Five new profiles are created every second

• Facebook accounts for 1 in 5 page views on the Internet in the U.S.

• 23% of users check account more than 5 times a day; average time per visit = 20 minutes.

• 4.5 billion “Likes” per day

• Highest Facebook traffic between 1-3 p.m., 18% more on Thursdays and Fridays

• Over 10 million Facebook apps

• The average Facebook user creates 90 pieces of content

per month

• 50% of users check Facebook when they wake up

• There are no longer 6 degrees of separation – now it’s

3.5

• Average number of Facebook friends = 155

• 72% of Americans are active on Facebook

– 91% of millennials

• Facebook takes up 22% of internet time, compared to

11% of Google search and YouTube combined

• Birthdate

• Place of Employment

• Relationship Status

• Family Members

• Places Visited

• Home and Email Addresses and Phone Numbers

• Photos

• Political, Religious, Social Viewpoints and Causes

• Schools Attended

• Clubs, Civic Activities, Networking Groups

• How much they hate their boss

• How much they hate their job

• How much they hate their employer

• What they did on their day off

• What they did the day they called in

sick

• How much they drank over the

weekend

• Sexually provocative photos

• How they will destroy their ex’s life

• That the DUI test was rigged

• How high their new meds make them

• Offensive costumes and remarks

• And on, and on, and on

• 30% of social media users do not

utilize any privacy controls

• One has no reasonable

expectation of privacy in

information intentionally

broadcasted to the world on

Twitter. State v. Harris (2012)

• The sharing of personal

information is the very nature

and purpose of social networking

sites, else they would cease to

exist. Romano v. Steelcase, Inc. (2010)

• Compromised quality of

work: 48%

• Lower morale because other

workers have to pick up the

slack: 38%

• Negative impact on

boss/employee relationship:

28%

• Missed deadlines: 27%

• Loss in revenue: 26%Careerbuilder.com 2016

• 36% block certain internet sites

• 25% prohibit personal calls

and/or cell phones

• 22% monitor emails and internet

usage

• 28% have fired employees for

non-work internet activity

• 18% have fired employees for

social media activity

Careerbuilder.com

• Social media provides a wider pool

for applicants

• 77% of employers reported using

social media to recruit applicants

• Government is less likely to use

social media because of greater

concerns of learning of protected

characteristics:

• Publicly owned for-profit: 87%

• Privately owned for-profit: 84%

• Non-profit: 69%

• Government: 48%

• 56% of employers report using

social media in the hiring process

to investigate applicants

• 43% of hiring managers have not

hired someone based on

information found on-line

– 50% provocative photos

– 48% excessive drinking/drugs

– 33% badmouthing prior employer

– 30% poor communication skills

– 28% discriminatory comments

– 24% lying about qualifications

• Concerns over learning of protected categories:– FEHA Categories

– FMLA/CFRA/PDL status

– Military or veteran status

– Criminal records• Labor Code Sec. 432.7 and

AB 218

– Association and perceived as categories

• Finding information that is not relevant to whether the candidate is the best fit for the organization

• Distrust of the veracity of information on social media sites

• DFEH and EEOC actively prosecuting applicant cases

• Gaskell v. Univ. of Kentucky

(E.D. Ky. 2010)

– Employment denied after

employer learned candidate

published an article about the

Bible and astronomy

• Neiman v. Grange Mutual

Casualty (C.D. Ill. 2012)

– Employee alleged that using

age obtained from his LinkedIn

profile violated the ADEA

• Makes it unlawful for an employer to require or request that an employee or applicant for employment do any of the following: – Disclose a username or password for

the purpose of accessing personal social media;

– Access personal social media in the presence of the employer; or

– Divulge any personal social media

• There is an exception for workplace investigations

• Unclear whether the law applies to public agencies

• Employee misuse of sick and

protected leaves of absence

• Disparaging remarks about

supervisors, co-workers, vendors,

clients, etc.

• Harassment by co-workers

• Inappropriate comments or

content that implicate the

workplace

• Breach of confidentiality and

other employer policies

• Impairs harmony among co-workers;

• Has a detrimental impact on close working relationships;

• Impedes the performance of the public employee’s duties;

• Impairs the operation of the agency;

• Makes use of the authority and public accountability the employee’s role entails

Factors to

Consider

• Police officer’s online selling of sexually explicit videos made while in uniform was not protected

City of San Diego v. Roe (2004) 125 S. Ct. 521

• Police officer’s criticism of co-worker on Facebook was not protected

Gresham v. City of Atlanta (11th Cir. 2013) 542 Fed. Appx. 817

• Deputy Police Chief’s racist remark on Facebook was not protected

Duke v. Hamil (N.D. Ga. 2014) 2014 WL 414222

Bland v. Roberts (4th Cir. 2013)• Sheriff terminated employees who supported his

opponent in an election, allegedly for poor performance.• Many of the employees had only “liked” his opponents

Facebook page.• The Court held that “liking” a page was pure speech and

symbolic expression, and that the Sheriff’s interests in maintaining effective services to the public were outweighed by the employees’ interest in highly-protected political speech.– Likened it to the modern-day equivalent of a front yard

campaign sign or bumper sticker.– Court engaged in a detailed analysis of what

it means to “like” something on Facebook.

Shephard v. McGee (D. Ore. 2013)• A social worker, who identified her job on Facebook, was terminated

after she posted comments critical of people on public assistance, such as:– “Almost every client home I go into has a gigantic flat screen tv. I ask how

they paid for it, and it's usually with their tax returns ...yet they don’t pay taxes!”

– “You should let me know when you send people to jail and I can get their ‘benefits’ turned off.”

• Her job functions included preparing juvenile court cases, making recommendations for juvenile court disposition, and appearing in Court. She described her job as, “to be a neutral appraiser of the settings in which children live.”

• The court agreed that DHS’s interests in maintaining efficient operations outweighed Shepherd’s free speech rights– Even though Shepherd established that no actual harm had occurred as a

result of her Facebook posts

Pier Sixty LLC (NLRB 2015)• Pier Sixty, a catering company, was in the middle of a union

election, which was triggered, in part, by employee concerns that management was disrespectful to them.

• Two days before the election, a supervisor allegedly made disrespectful comments to employees when telling them, in a loud voice, to turn their heads when guests arrived and to stop chitchatting.

• One of the employees posted the following on his personal Facebook page about his supervisor:– Bob is such a NASTY MOTHER F*#KER don’t know how to talk to

people!!!!!! F*#k his mother and his entire f*#king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

• Pier Sixty fired the employee after an investigation.

• The NLRB ruled this to be protected concerted activity.

• Clean up your social media presence

• Don’t use Agency’s equipment for

personal business

• Don’t use social media while “on-the-

clock”

• Don’t sign up for social media using your

work email address

• Consider the consequences of friending

and following co-workers, supervisors,

subordinates, and officials

• Don’t engage in any behavior on social

media that violates your Agency policies

• Don’t do anything on the internet that you

would not want disclosed to the public,

your elected officials, or your supervisor

• Consider blocking access to social

media websites from employer

equipment

• Personal vs. employer-owned cell

phone

• Designate an employee

responsible for your Agency’s

social media presence, and

provide him/her with the time and

tools to effectively manage it

• Train employees and officials

• Be clear to hiring

managers that they

cannot troll the internet

for information about

applicants

– Include in a policy?

– Include in written

instructions to hiring

manager?

• Develop clear,

comprehensive policies

• Revise policies when new

laws, court decisions are

issued or when new

technologies emerge

• Apply and enforce policies

consistently

• Two issues to be addressed

by policy:

– Regulating employees’

activities on social media

• Employees have the right to

discuss their wages, hours and

working conditions. Thus, a

social media policy should be

narrowly tailored.

– Regulating the Agency’s social

media presence

• Free speech and other issues

have yet to be litigated.

• Employer may reduce expectation

of privacy by adopting policies that

explicitly reserve the employer’s

right to monitor computer and

internet use.

• Include HR, IT, and Legal

• Best to adopt a new policy or

amend an existing policy?– Consider impact on existing policies

• Obtain employee’s signed

acknowledgement of receipt,

understanding the policy and

limitation on their reasonable

expectation of privacy

• Advise employees that what

they say on social media can

be used in disciplinary,

administrative and legal

proceedings

• Prohibit playing computer or

cell phone games at work

• Caution managers about

friending subordinates