bret strong, managing shareholder the strong firm, p.c. november, 2013 social media: a double-edged...
TRANSCRIPT
BRET STRONG, MANAGING SHAREHOLDERTHE STRONG FIRM, P.C.
NOVEMBER, 2013
Social Media: A Double-Edged Sword
(the ever evolving world….LOL)
Part 1
An Overview of Social Media Issues
Overview of Social Media Issues
What Is It?
Facebook• Personal profiles and company pages
Twitter• 140-character messages
YouTube• Online videos
LinkedIn• Personal resume-like profiles
New stuff everyday……• Any expression of an online identity
Overview of Social Media Issues(Think of the resources good and bad devoted to it……..)
Who Uses It And Why Should You Care?
1+ billion recognized users933 billion minutes per month spent on Facebook
100+ million active users230 million tweets per day
225+ million registered users2 million registered businesses
Overview of Social Media Issues
IP Infringement
Invasion of Privacy
Harassment
Disparaging Remarks and Defamitory Remarks
Confidential Disclosures
Overview of Social Media Issues
• Major Legal Considerations:• National Labor
Relations Act• Active and pending
State laws• Active and pending
Federal laws• Secondary considerations:
• Americans with Disabilities Act
• Health Insurance Portability and Accountability Act
Overview of Social Media Issues
So What Can You Do?
Know What Laws Exist and Follow the Evolving Legal Trends
Perform DAILY Searches of Company, Executives, Key Terms and Employees
Develop and Follow an Effective Social Media Policy
Implement Your Policy and Train Employees on Their Rights and Responsibilities With Social Media
Part 2
The NLRB and Developing Laws
Section 7 of the NLRA
Section 7 of the NLRA provides that employees have a right to “engage in concerted activity for purposes of collective bargaining or for other mutual aid and protection” Must be undertaken by 2 or more employees or by 1
employee with the authority of others; AND Must relate to the terms and conditions of employment
But, even “concerted,” does not protect: Malicious or reckless actions Employees who reveal company trade secrets or make
threats of violent behavior
NLRB General Counsel Memos
Three reports covering several cases and various company social media policies.
Some cases involved employees’ use of Facebook, finding that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees.
Other cases involved Facebook or Twitter posts, and the activity was found to be unprotected.
NLRB General Counsel Memos
The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies.
The reports underscored two main points regarding the NLRB and social media: Employer policies can’t be overly broad Mere gripes are not generally protected Be careful of “interaction” between
employees/managers and elected officials/government workers More information at:
www.nlrb.gov
Costco Decision
Costco Wholesale Corp., 34-CA-012421 (Sept. 7, 2012)
Costco had a policy banning workers from posting statements online that harmed the company’s reputation
The court ruled that this was a violation of the employees’ Section 7 rights
This is an example of a policy where the restriction on speech was too broad, and without narrower language, it appeared to prohibit both protected and unprotected speech
BMW Decision
Knauz BMW, 358 Case No. 13-CA-046562 (Sept. 28, 2012)
A sales associate was fired after posting Facebook pictures and comments of an event unrelated to his employer or fellow employees
The firing was upheld because the postings were not deemed concerted activity, so he was not protected by the NLRA
However, this case also ruled broad prohibitions against disrespectful conduct and language was a violation of Section 7
Hispanics United of Buffalo Inc. Decision
Hispanics United of Buffalo Inc., Case No. 13-CA-027872 (Dec. 14, 2012)
Several employees of a non-profit were fired after posting comments and responses on Facebook criticizing their boss “Lydia Cruz, a coworker feels that we don’t help our
clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?”
The firings were overruled because the employees’ comments were deemed concerted activity discussing work conditions
What Can My Policy Limit?
Protected• Working Conditions, Wages,
or Benefits• Employee Opinions (Even if
Factually Wrong)• Colorful/Offensive Language
Not Protected• Personal venting/rants• Disclosure of Confidential
Information or Trade Secrets
• Harassing, Violent, or Abusive Language
Potential Laws
Federal Law
• Social Networking Online Protection Act (SNOPA)
TX State Law
• 4 House and Senate Bills in 2013
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Did They Really Say That?
Part 3
Crafting a Social Media Policy
Direct Liability For Any “Company” Posts
• If your company uses its own company page or account, you will be directly liable for any damage caused
Employee Issues
• Any harassment/discrimination claims that arise out of social media, even on employees’ personal accounts, can affect you through vicarious liability• NLRB
On/Off Work Site
• Any social media messages posted at work, during working hours can affect you, but so can personal-time posts from home if they involve harassment, etc.
Work-Issued Electronic Devices
• Anything posted using work-issued devices can affect you, even if it is from a personal account during off-work hours
Crafting a Social Media Policy
All electronic communications made at the workplace or on employer-issued devices are accessible by the employer, without warning
Employer Access
Any policies of anti-harassment, confidentiality, copyright, etc. carry over to social media use. Reasonable policies associated with workplace use of time are acceptable.
Company Guidelines
Employees must comply with all social media sites’ terms of service and rules
Social Media TOS
Generally, employees must maintain professionalism in all aspects of social media use
Professionalism
Crafting a Social Media Policy
Crafting a Social Media Policy
NLRB has ruled favorably for social media policies that:
Restrict social media usage when necessary to ensure compliance with securities regulations or other laws
Prohibit employees from using or disclosing confidential and/or proprietary information
Prohibit employees from discussing in any form of social media trade secrets
Employee Handbook
Social Media
Laws
Conclusion
Power ofSocial Media
BRET L. STRONGPhone Number: 281-367-1222
Fax Number: 281-210-1361
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