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EMPLOYEES, SOCIAL MEDIA, SMARTPHONES, TABLETS: LEGAL ISSUES FOR EMPLOYERS First Run Broadcast: January 15, 2015 Live Replay: June 8, 2015 1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) The way employees communicate with each other, their supervisors, family and friends (while on the job), and with the outside world about their companies and work has changed dramatically in the last several years. Seemingly everyone carries smartphones in their pockets, tablets in their bags, and all of these devices are hyper-connected through text, voice, and video chat, and again through social media. What’s an employer to do when employees are immediately interconnected with virtually everyone in the world with a few keystrokes? On the answer to that question hangs many real-world issues for employers – liability for employee-employee harassment, the validity of workplace investigations, the protection of sensitive employer information, privacy monitoring, and much more. This program will you with a practical guide to the major legal issues for employees involving employee use of smartphones, tablets, social media and other digital media in the workplace.

• BYOD – “Bring Your Own Device” to work – smartphones, tablets and social media use by employees in the workplace

• Privacy – what can an employee do to monitor employee use without invading their privacy and triggering liability?

• Harassment – how use of digital media by employees can tag employer’s for harassment/discrimination liability

• Investigations – can an employer access employee email, social media and other digital communications?

• Usage – what restrictions can and should employers place on employee use of digital devices on the job?

• Secrets – how do employers prevent disclosure of trade secrets and other sensitive information?

• Torts – what are emerging social media torts in the workplace? Speaker: Gregg M. Lemley is a partner in the St. Louis office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., where he has an extensive labor and employment law and related commercial litigation practice. He represents employers in a wide range of litigation matters in both state and federal court in disputes involving discrimination based on race, sex, age, religion, disability, national origin and the FMLA, sexual and racial harassment, and retaliation. Mr. Lemley also has a substantial practice assisting employers in the development, implementation and application of harassment, drug testing, family medical leave and a wide range of other personnel policies. Mr. Lemley received his B.A. from Webster University and his J.D. from Washington University School of Law.

Gregg M. Lemleygregg.lemley@ogletreedeakins.com

(314) 802-3941

Do-It-YourselfBackground Checks

Social Media and Hiring

• Why look at social media during the hiringprocess?

• Obtain information

• Cultural fit

• Potential business risk

Why View Applicants’ Social Networks?

• Discrimination

• Disclosure

• Lies

• Disparagement

• Style and ability

• Licenses and certifications

• Personality

Why View Applicants’ Social Networks?

Impact On Hiring Practices

86%70%

Information Discovered –Good, Bad or Both?

• Race

• Gender

• Family

• Political Views

• Controversial Opinions

• Religion

• Children

• National Origin

• Sexual Orientation

• Age

• Drug Use

• Alcohol Abuse

• Alcoholism

• Arrest Information

• Criminal History

• Marital Status

• Prior Lawsuits

• Prior Charges

• Bigotry

• Worker’s CompClaims

• Periods ofunemployment

• Disclosure of prioremployer’s secrets

Information Discovered –Good, Bad or Both?

• Whistleblowing

• Employer bashing

• Employee badmouthing

• Sexual content

• Harassment of co-workers

• Gender identity

• Negativity

• Defamation ofemployers, clients, orthird parties

• Image

Information Discovered –Good, Bad or Both?

• Tobacco use

• Other “lawful out ofwork activities”

• Records ofdisabilities

• Health issues

• Psychiatric issues

• Medical history

• Medications

Information Discovered –Good, Bad or Both?

Do Employers Really Want to UtilizeThis Information?

Do Employers Really Want to UtilizeThis Information?

Risks in Using Social Media in Hiring

• Discrimination avoidance tip:

• Insulate decision maker – havedifferent individual look at the sitesand gather specific, relevantinformation

• Only look for specific things, e.g.:

• Inappropriate photos

• Ties to a competitor

• Opposition to your business

Recommendations

1. Make informed decision on use ofinternet searches forapplicants/employees

2. Include release/authorization inapplications

3. Check terms and conditions ofwebsite being accessed

4. Don’t be cute (do not falsify,impersonate, retrieve keystrokes toget access)

5. Retain information used for hire/no-hire decision

Recommendations

6. Focus on job-relatedness ofinformation

7. Ensure right person is involved tosearch

8. Evaluate use of third party toconduct searches

9. Consistently apply search

10. Increased support for job actions

11. Time of search - Pre-Offer/Post-Offer

Recommendations

1. Make informed decision onuse of internet searches forapplicants/employees

Recommendations

2. Include release/authorizationin applications

Recommendations

3. Check terms and conditionsof website being accessed

Recommendations

4. Don’t be cute (do not falsify,impersonate, retrievekeystrokes to get access)

Recommendations

5. Retain information used forhire/no hire decision

Recommendations

6. Focus on job-relatedness of information

Recommendations

7. Ensure right person isinvolved

Recommendations

8. Evaluate use of third partyto conduct searches

Recommendations

8. Evaluate use of third partyto conduct searches

• Cons include

• Lack of control over search

• Inability to obtain someinformation you may want

• Difficulty in defining whatwould be pass or fail

• Fair Credit Reporting Actobligations

Recommendations

9. Consistently apply search

Recommendations

10. Increased support for jobactions

Recommendations

11.Time of search – Pre-Offer/Post Offer

Recommendations

11.Time of search – Pre-Offer/Post Offer

• Cons of Post-Offer include

• Focusing the applicant onthe reason for the decisionand potentially leadingincreased likelihood oflitigation due to yanking ofjob offer

Legislation andThreatened

Litigation overRequiring

Passwords

• On April 9, 2012, Maryland became the first stateto pass legislation banning employers from askingfor employee and job applicant social media sitepasswords.

Proposed Legislation

• Three other states passed similar legislation in2012:

• Illinois

• California

• Michigan

Proposed Legislation

Proposed Legislation

• Seven states enacted legislation last year.

• Arkansas

• Colorado

• New Mexico

• Oregon

• Utah

• Vermont

• Washington

• Seven more states have passed similar legislationso far in 2014:

• Louisiana

• Massachusetts

• New Hampshire

• Oklahoma

• Rhode Island

• Tennessee

• Wisconsin

Proposed Legislation

Proposed Legislation

• Legislation has been introduced or is pending in atleast 21 other states.

• Two U.S. Senators have requested the DOJ andEEOC to investigatewhether passwordrequests violatefederal law.

Employee Use ofSocial Media

Why Should You Care?

• Confidential information

• Defamation

• Negativity

• Offense to co-workers

• Harassment of co-workers onsocial media sites

• Discussing controversial topicsor including sexual or controversial material

Why Should You Care?

• Rumors spread quickly tomillions of people

• Damage to reputation or brand

• Difficult to stop or “clean up”

• Loss of your or your client’sconfidential information

• Identity of offenders may betough to learn

• Firing for Internet use may leadto lawsuits

What Are Employers Being Sued For?

• Discrimination

• Retaliation

• Harassment

• Anti-union animus

• Disclosure of confidentialinformation

• Invasion of privacy

• Defamation

• Violations of HIPAA, ADA and FMLA

• Negligent hiring, retention or supervision

• [insert your favorite plaintiff lawyer’s wrongfultermination theory here]

Social Media Harassment Policies

• Even though social media-related complaintsare on the rise, most employers do not havepolicies or training to address

• A recent survey found that only 34 percent ofemployers had a specific policy for dealing withharassment via social media.

• Only 32 percent provide training on preventingharassment and retaliation via social media.

“Free Speech” Issues

• Knee-jerk reaction that discipline for blogs andsocial media postings violate free speech rights

• Illustrates need to communicate withemployees about blogging

Termination forEmployee SocialMedia Posts and

NLRB Impact

National Labor Relations Board

• NLRB’s position on employers’ responses to comments onsocial media.

• Settlement with AMR in February over AMR’stermination of employee for calling her supervisor a“mental patient,” a “scumbag” and a “dick” on Facebook.

National Labor Relations Board

• NLRB’s position on employers’ responses to comments onsocial media.

• Complaint against Thomson Reuters in April fordisciplining reporter who “Tweeted” that his employershould “deal honestly with [union] members”

National Labor Relations Board

• NLRB’s position on employers’ responses to comments onsocial media.

• Complaint against Chicago-area BMW dealer wheresalesman terminated for Facebook post criticizing qualityof food and beverages at a dealership event.

April 2, 2012 – NLRB—ALJ Opinion

• Found an employers’ social media policy violatedemployees’ Section 7 rights despite employerdisclaimer that is should not be construed orapplied in a way that “interferes with employees’rights under federal law.”

• In January the NLRB General Counsel’s officereleased a report describing 14 casesconcerning social media issues,7 of which dealt with policiesrather than actions, and 5 ofthe 7 were found to be unlawful.

May 30, 2012 NLRB Advice Memo

• Acting General Counsel referenced socialmedia policies of several different companies.

• Determined certain provisions were overbroadand violated the NLRA.

• Included examples of specific provisions thatwould be lawful.

May 30, 2012 NLRB Advice Memo

UnlawfulDisparaging or defamatory comments about theEmployer, its employees, officers, directors,vendors, customers, partners, affiliates or theEmployer’s products/services are prohibited.

LawfulAvoid comments that reasonably could beviewed as malicious, obscene,threatening or intimidating, thatdisparage customers, members,associates or suppliers, or thatmight constitute harassmentor bullying.

May 30, 2012 NLRB Advice Memo

UnlawfulDiscussions related to the Employer must becompletely accurate and not misleading.

LawfulMake sure you are always honest and accuratewhen posting information or news and if youmake a mistake, correct it quickly. Never postany information or rumors you knowto be false about the Employer,fellow employees, members,customers, suppliers, peopleworking on behalf of theEmployer, or competitors.

May 30, 2012 NLRB Advice Memo

Unlawful

Posting confidential or non-public customer,employee, or company information is prohibited

Lawful

Maintain the confidentiality of Employer tradesecrets and private orconfidential information.

May 30, 2012 NLRB Advice Memo

UnlawfulEmployees must obtain authorization from theEmployer before posting about the Employer orits business activities.

LawfulExpress only your personal opinionsand never represent yourself asa spokesperson for the Employer.

The NLRB’s First Social MediaDecision – Costco Wholesale Corp.

• Prohibiting statements posted electronicallythat “damage the Company, defame anyindividual or damages any person’s reputation”unlawful.

• Rule that “sensitive information. . .may not beshared, transmitted, or stored for personal orpublic use without prior management approval”unlawful.

• Unanswered questions:

• Policies on “friending” co-workers.

• Requesting employees report unusual orinappropriate social media activity

• Savings clauses

The NLRB’s First Social MediaDecision – Costco Wholesale Corp.

NLRB Slams Facebook Firings

• NLRB cemented position that social mediarepresents a virtual water cooler where workers’speech may be entitled to protection

• 5 workers fired for bullying and harassment overFacebook comments after an employee indicatedthat she would voice concerns about co-workerperformance

• Hispanics United ordered to reinstate workers afterthe Board ruled that the comments could not beconstrued as harassment orbullying.

Facebook Association Firing

• Employees expressed concern over store closinghours and unsafe neighborhood to management.

• Management failed to respond.

• Employees posted several messages onFacebook – including messages about briningworkers’ rights handbook in to store.

• Two employees fired directly for postings

• One employee fired for association withemployees involved in Facebook posting.

Facebook Association Firing

• NLRB found postings to be protected concertedactivity saying: “The Facebook postings werecomplaints among employees about … terms andconditions of employment and aboutmanagement’s refusal to address employees’concerns…such conversations for mutual aid andprotection are classic concerted protected activity.”

• NLRB rejected employer’s argument that postingswere to entrap employer into firing employees.

• NLRB ordered all employeesreinstated and givenback pay.

NLRB Sides with Car Dealer in FirstFacebook Firing Decision

• BMW salesman terminated for posting defamatorycomment about Land Rover accident at dealership

• NLRB ruled “The Land Rover accident posting was‘obviously’ unprotected by the NLRA … it wasposted solely by Becker, apparently as a lark,without any discussion with any other employee ofthe respondent and had no connection to any ofthe employees’ terms and conditions ofemployment.”

NLRB Sides with Car Dealer in FirstFacebook Firing Decision

• Dealership also had “courtesy” rule in its socialmedia policy – requiring behavior towardcustomers, vendors, supplies and fellowemployees in posts

• Board found this to be an unlawful restraint ofSection 7 rights

NLRB: Facebook Post ConsideredUnion Activity

• Employee sent emails to co-workers as well atother guides in the New York area detailingconcerns about existing terms and conditionsof employment – listing benefits of unionizing.

• Employer terminated employee after hepublicized his union organizational activitiesand criticized company’s employment practicesin emails and Facebook postings to thirdparties.

NLRB: Facebook Post ConsideredUnion Activity

• NLRB found emails and postings werecommunications that constituted union activityand were protected.

• Employer ordered to reinstate employee andgive back pay.

May 8, 2013 NLRB Advice Memo

• Employee commented on Facebook that shetold her supervisor to “back the freak off” andtyped “FIRE ME” and “make my day” inaddition to insulting employer and using foullanguage.

• Comments not protected because they weremere “boasting and griping.”

• Did not express shared concerns aboutworking conditions.

Facebook “Like” Protected,Concerted Activity?

• Connecticut sports bar discharged two workersfor poor performance, register discrepanciesand disloyalty

• Profanity-laced Facebook discussion regardingemployer’s tax withholding calculations ensues

• Workers “Liked” Facebook wall postingregarding employer’s withholding tax practices

Facebook “Like” Protected,Concerted Activity?

• NLRB Administrative Law Judge ruled that theworkers were engaged in “protected, concertedactivity” – a discussion with other workersabout the calculation of their tax withholdings –when they took part in the Facebook exchange

• The Board agreed with the Judge, determiningcommenting on Facebook status amounted toendorsing complaint

Facebook “Like” Protected,Concerted Activity?

• “I further find that…selecting the “Like” option on… Facebook account constituted participation inthe discussion that was sufficiently meaningfulas to rise to the level of concerted activity.”Esposito, ALJ

• Board took a narrower view, interpreting the “Like” asmerely an approval of the original status update andnot the comments stemming from it

Facebook “Like” Protected,Concerted Activity?

• The employer has asked the Second Circuit toreview the Board’s ruling.

• Three issues may be addressed on appeal:• Whether clicking the “like” button deserved protection.

• Whether the conduct (i.e., profanity) was egregiousenough to lose protection.

• Whether the employer’s Internet/Blogging policy violatedthe act.

Facebook “Like” Protected,Concerted Activity?

• Employer provided youth programs to middleschools and high schools and received fundingfrom private donors as well as the government.

• Employer discharged two employees over a“profane” Facebook conversation, citingconcerns about safety and funding.

• The NLRB argued the conversation wascontinuation of complaints made in a staffmeeting so constituted protected concertedactivity.

Facebook “Like” Protected,Concerted Activity?

• NLRB Administrative Law Judge ruled that theemployer “could lawfully conclude that theactions proposed in the Facebook conversationwere not protected under the Act and that theemployees were unfit for further service.”

• The Board recently upheld the ALJ’s ruling,finding the conversation advocatedinsubordination and, therefore, lost the Act’sprotection.

Facebook “Like” Protected,Concerted Activity?

• NLRB ruled that a workplace rule barringnegativity and requiring employees torepresent their employer in a positive andprofessional manner in the communityprohibited protected concerted activity.

• The Board held that the rule could beunderstood to ban employees from makingwork-related statements about the employerthat were not positive.

Facebook “Like” Protected,Concerted Activity?

• NLRB Administrative Law Judge ruled that anemployee who complained about an allegedlyrigged bikini contest on Twitter engaged inprotected concerted activity.

• The Judge also struck down employeehandbook rule that prohibited posting negativecomments about the Company or coworkersand posting any information regarding acoworker or customer.

Employee Use ofSocial Media –Supervisors“Friending”

Subordinates

Supervisors “Friending”Subordinates

• Could mean supervisors learn protectedpersonal information about employees

• Potential favoritism issues

• Can blur the line between supervisor andsubordinate

• Means supervisors must beextremely careful aboutwhat they post

The NegativeImpact of

“Linkedin”References

Twitter Feed Feud

• Employee was sued for continued use ofTwitter account after employment ended

• Employer alleged Twitter followers (17,000)should be treated as a customer list and beprotected under trade secrets

• Case brings to question the value of a Twitterfollower

Twitter Feed Feud

• The case highlights the importance of having awritten policy establishing that the companyowns the social media site (and any followersor client information) and what happens to theaccount when employment relationship ends

Social Media Post-Employment

• Former employees may usesocial media to violaterestrictive covenants

• Facebook posting in lieu ofsending solicitation letters

• Twitter instead of new jobannouncements

• Discuss social media in exitinterviews

• Monitor social media of keyformer employees

Facebook Post Does Not ViolateNon-Solicitation Agreement

• Former employee posted general informationabout the new employer on Pre-Paid LegalServices private web pages that he had createdfor Pre-Paid Legal Services

• He posted on Facebook accolades regardingnew employer’s product

• He sent Twitter invitations to prior employer’ssales associates; however,did not request salesassociates “follow” him

Facebook Post Does Not ViolateNon-Solicitation Agreement

• While the Court held that employee hadbreached non-solicitation by meeting with asingle, “downline” colleague in an attempt tohave colleague join new employer

• Court cited that employee had neither intendedto nor solicited others via Facebook

• Court further held that Twitter invitations werenot solicitation as the inviteswere generated by thesocial media site itself

Social Media“Hijacking”

LinkedIn “Hijacking”

• CEO terminated after corporate buyout

• Accused company of “hijacking” LinkedInaccount, changing password and replacingname and photograph

• Former CEO used LinkedIn account topromote company’s services, foster herreputation and build professional relationships

• Company defeated claimsthat it violated anti-hackingand trademark laws

Prevent “Hijacking” Claims

• Have a written policy establishing that thecompany owns the social media site, whathappens to the account when employmentrelationship ends

• Policy should specify that the employee mustreturn login and password information whenemployment relationship ends

Social Mediaand Litigation

Social Media and Litigation

• Uses of social media in litigation• Investigating plaintiff

• Incriminating status updates

• Helpful photographs

• Alliances with “discriminatory”groups

• “Friends” or other witnessesyou may want to speak with ordepose

• Information concerning jobsearch efforts (or lack of)

• Preparing for trial andinvestigating jury

Discovery of Social Media

• Reid v. Ingerman Smith LLP

• Plaintiff claimed mental anguish stemming fromalleged sexual harassment

• Court ordered plaintiff to disclose social mediacommunications and photographs “that reveal,refer, or relate to any emotion, feeling, ormental state.”

Sanctions for Deleted Facebook

• Gatto v. United Airlines, Inc.

• Plaintiff deleted Facebook account

• Judge ruled it destruction of evidence based onfour-factor test

• Evidence in plaintiff’s control

• Actual suppression/withholding of evidence

• Relevant to claims and/or defenses

• Reasonably foreseeable evidence would bediscoverable

Sanctions for Deleted Facebook

• Gatto ruling shows the court will takepreservation of requested social media contentseriously

• “Plaintiff’s are not getting a free pass…ifinformation is deleted that is relevant to thelawsuit, there will be consequences.”

• Employers need to request discoverable,relevant social media content with initialdiscovery requests

Miscellaneous

• Litigation

• References

• LinkedIn with non-compete

NEW SECTION

• When the Stored Communication Act Appliesto Facebook Posts

What is the Stored CommunicationAct?

The SCA May Prohibit EmployerAccess to Employee Facebook Posts

• Ehling v. Monmouth-Ocean Hospital ServiceCorp.

The SCA May Prohibit EmployerAccess to Employee Facebook Posts

• Ehling v. Monmouth-Ocean Hospital ServiceCorp.

The SCA May Prohibit EmployerAccess to Employee Facebook Posts

• Rodriguez v. Widener University

The SCA May Prohibit EmployerAccess to Employee Facebook Posts

• Rodriguez v. Widener University

NEW SECTION

• Confidentiality and Other EmploymentConcerns from Developing Social Media Apps.

WhatsApp

• Allows users to send text messages throughthe app instead of through their provider’snetwork.

• Information is transmitted outside of corporatecontrols.

• Could put an employer confidential/proprietaryinformation at risk.

Vine and Instagram

• Allow users to share videos and photos witheach other.

• Could also put confidential information at risk.

• Can also cause PR headaches.

Snapchat

• Text and imaging sharing app designed todestroy the messages sent through it.

• Courts have not yet weighed in an employer’sobligation to preserve and produce messagessent through apps like Snapchat.

• Could cause problems for employersinvestigating harassment complaints.

Yelp, Tripadvisor, etc.

• Industry-specific sites where users contributereviews of restaurants, hotels, etc.

• Businesses that choose to respond to reviewsshould not do so through anonymous posts –should be an official company spokesperson.

• Make sure confidential information is notinadvertently shared when responding.

Match.com and Tinder

• At least one federal judge has ruled that ahostile work environment claim based on asupervisor urging a subordinate to join Matchcould survive a motion to dismiss.

• Co-workers “finding” themselves on datingsites and apps can also cause problems.

What’s an Employer to Do?

• Develop a social media policy (that complieswith recent NLRB decisions and guidance).

• Make sure all the various forms of social mediaare covered by the policy.

• Educate your employees on the policy.

• Include social media in a duty-to-report policy.

• Reassess Bring Your Own Device policies

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Employees, Social Media, Smartphones, Tablets:

Legal Issues for Employers Teleseminar June 8, 2015 1:00PM – 2:00PM

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Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: June 8, 2015 Seminar Title: Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers

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