managing employees and social media: where is the line? breakfast... · managing employees and...
TRANSCRIPT
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Presented by: Katherine P. Sandberg
Phone: (916) 210-0406
Email: [email protected]
Managing Employees and Social Media:
Where is the Line?
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What is Social Media?
Facebook Twitter YouTube Four Square Instagram Flickr Snapchat
Media is an instrument of communication, like anewspaper or a radio. Social media refers to interactionamong people in which they create, share, and/orexchange information and ideas.
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Social Media Is Beneficial For Employers
• Learn what employees are doing away fromwork.
• Learn background information about people.
• Learn what other organizations are doing.
• Learn about marketplace/trends.
• Learn what your juries think.
• Learn who your employees are contacting.
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Non-Legal Risks
• Customer relations. Employees could make disclosuresthat damage customer relationships either by revealinginfo they shouldn’t or disparaging products.
• Reputation. Employees might make personaldisclosures about other employees that adversely affectthe public perception of the company.
• Employee relations. The Cube Wars - A personaldispute between employees could be taken onlinecreating morale issues and often co-opting others in thecompany.
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Tweet Fails
• Example: A high-profile public relations executivelanded in a client's city and promptly posted on hisTwitter account, “I would die if I had to live here.”
• The problem: that city is home to one of the PR exec’slargest clients.
• Needless to say, reps were not amused.• Oops.
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Example 2:
• When two employees at a North Carolina pizza delivery
store were bored one evening, one filmed the other
sticking a piece of cheese up his nose and then placing it
on a sandwich soon to be delivered to a customer.
• They posted the video on YouTube.
• More than half a million hits later, the pizza company had
a viral gross-out PR nightmare on its hands and the
health department at its doorstep.
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Legal Risks
• Libel. Employees could actionably defamecompetitors and co-workers.
• Admissions. Blog posts as party admissions?
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Issues
• Proprietary info• Who owns account?
• Vent frustrations• Company policies
• Manager or co-employee - NLRB
• Other internal info
• Bring disrepute to company
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National Labor Relations Act
Section 7 rights: “Employees shall have theright…to engage in other concerted activitiesfor the purpose of collective bargaining orother mutual aid or protection”
Employees’ Section 7 rights apply tocommunications via Social Media
Social media is the new water cooler
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National Labor Relations Board
• Enacted in 1935 to enforce the NLRA
• 5 Members located in Washington, DC
• Appointed by the President
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Protected Concerted Activity andSocial Media
• Activity that addresses the terms and conditions ofemployment
• Employer policies should not be so sweeping that theyprohibit the kinds of activity protected by federal labor law,such as the discussion of wages or working conditionsamong employees.
• An employee’s comments on social media are generally notprotected if they are mere gripes not made in relation toconditions of employment
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National Labor Relations Act
• “Wait a minute … my company is non-union.”
• Protected concerted activity• Employees’ right to act together to improve their pay and working
conditions, with or without a union
• Single employee can engage in PCA, if acting on behalf of otheremployees or trying to induce group action
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Social Media And Protected ConcertedActivity
• Section 8(a)(1): Employers cannot maintain a work rulethat “would reasonably tend to chill employees in theexercise of their Section 7 rights”
• Two types of rules:• Explicit restrictions
• Implicit restrictions – employees would reasonably construethe rule to prohibit protected concerted activity
• Ambiguous rules – limiting language, context, examples?
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NLRB & Social Media
• Can’t require “respect” or positivity
• NLRB v. Hooters of Ontario Mills (2014)• Employee fired for posting disparaging
comments about management on social
media posts.
• Insubordination rule prohibited: insubordination to a manager orlack of respect and cooperation with fellow employees or guest
• Judge indicated it might have survived if limited to conduct notsupporting the company’s “goals and objectives”
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Social Media And Protected ConcertedActivity
• Section 8(a)(1): Employers cannot maintain a work rulethat “would reasonably tend to chill employees in theexercise of their Section 7 rights”
• Two types of rules:• Explicit restrictions
• Implicit restrictions – employees would reasonably construe therule to prohibit protected concerted activity
• Ambiguous rules – limiting language, context, examples?
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NLRB & Social Media
• Can’t broadly prohibit profanity
• NLRB v. Professional Electrical Contractors• Policy prohibited “boisterous or disruptive activity in the
workplace.”
• NLRB said rules that do not define prohibited abusive orprofane language are patently ambiguous
• Compare: rule prohibiting “profane or abusive language”is lawful
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NLRB & Social Media
• Can’t prohibit “gossip”
• NLRB v. Laurus Technical Institute (2014)
• Policy prohibited “gossip about the company, an employeeor customer,” which included (a) “[n]egative or untrue ordisparaging comments” about others, (b) “repeatinginformation that can injure a person,” and (c) “repeating arumor about another person.”
• Employee terminated for disruptive behavior, includinglayoffs of co-workers and supervisor
• Employer had not sufficiently narrowed the scope of the rule.
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NLRB & Social Media
• Employer who got it right.
• Landry’s Inc. v. Flores (NLRB 2014)• Policy stated employees should not post on social media any
company or job-related information that “could lead to moraleissues in the workplace or detrimentally affect theCompany’s business.”
• Upheld as lawful. Language narrowed restriction to theavoidance of “morale issues.”
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Social Media And Protected ConcertedActivity
• Karl Knauz Motors, Inc. (NLRB 2012)• An auto dealership’s decision to discharge a
salesperson for an inappropriate Facebookposting did not violate the NLRA
• Upheld
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NLRB & Social Media
• Cox Communications (2012)
• Customer Service Representative fired for writingirate comment on his google+ account: Just becauseyou are having problems with your tv service does notmean you should call me a fa--ot! F--K YOU!”
• Other employee posted sarcastic comment in support
• Termination upheld as lawful. Comments were not formutual aid and protection.
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More Social Media Legal Issues
• Snay v. Gulliver• Confidentiality provision breached via Facebook
• New Hampshire teacher fired forbeing “friends” with students onFacebook
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NLRB Lessons
• A no “defamatory,” “disparaging,” “disrespectful,” or“disruptive” postings policy is overbroad and unlawful.
• Instead, prohibit use of social media for unlawfulpurposes (e.g., discrimination, gambling, pornography,harassment) because the NLRA doesn’t protectunlawful conduct.
• Require employees to comply with all policies:copyright, trade secrets, EEO, etc.
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Privacy and Access
• Stored Communication Act
• State statutes• 13 states, including
California, have enactedstatutes prohibiting orlimiting employer access toemployee social media
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California Social Media Privacy Act
• Do not require applicants oremployees to surrenderusernames or passwords.
• protects videos, photographs, blogs,video blogs, podcasts, instantmessages, text messages, email,online services or accounts, andInternet Website profiles orlocations
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But What About Public Pages?
• To search or not to search? (Forensic analysis of yourcomputer hard drive will reveal the search of theapplicant’s/ employee’s site).
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But What About Public Pages?
• Negatives• Illicit drug use?
• Sexual content?
• Profanity?
• Alcohol consumption?
• Spelling/grammar?
• Positives• Membership in professional organizations
• Volunteer/charitable activities
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So What Are The Risks?
• Discovery of information about an individualthat if relied upon in an employment decision,would be unlawful.
• Affiliation with a particular religion.
• Associative discrimination as, for example, leadershipposition in a juvenile disease awareness group.
• Direct discrimination as, for example, membership in aLGBT group.
• Perception of disability (alcoholism/rehabilitated druguse).
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Best Practice
• If you survey public social media sites in theconduct of hiring decisions, be certain todocument those reasons for rejection that arebusiness-related and consistent with jobperformance.
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Social Media Job Duties
• Wage and HourConsiderations:
• Minimum wage
• Overtime
• Recordkeeping
• Employees with responsibilityfor social media
• Employees encouraged to usesocial media
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Social Media Job Duties
• Who owns company social media accounts?
• PhoneDog, LLC v. Kravitz• Claims for misappropriation of trade secrets, intentional
interference with prospective economic advantage, negligentinterference with prospective economic advantage, andconversion
• Social Media Policy should dictate ownership ofaccounts
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1. How far do you want to reach? Socialnetworking presents two concerns foremployers:
a) how employees are spending their time at work,and
b) how employees are portraying your companyonline when they are not at work.
Any social networking policy must address both types ofonline use.
Crafting A Social Media Policy
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2. Do you want to permit social networking at work, at all?
It is not realistic to ban all social networking at work. For one thing, youwill lose the benefit of business-related networking. Further, a blanketban is also hard to monitor and enforce. Danish study showing needto internet connect.
2. If you prohibit social networking, how will you monitor it?Turning off Internet access, installing software to block certain sitesor monitoring employees’ use and disciplining offenders are allpossibilities, depending on how aggressive you want to be and howmuch time you want to spend watching what your employees doonline.
Crafting A Social Media Policy
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Crafting A Social Media Policy
4. If you permit employees to social network at work, do youwant to limit it to work-related conduct, or permit limitedpersonal use? How you answer this question depends onhow you balance productivity versus marketing return.
5. Do you want employees to identify with your businesswhen networking online? Employees should be made awarethat if they post as an employee of your company, thecompany will hold them responsible for any negativeportrayals. Or, you could simply require that employees notaffiliate with your business and lose the networking andmarketing potential the internet offers.
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Crafting A Social Media Policy
6. How do you define “appropriate business behavior?”Employees need to understand that what they post online ispublic, and they have no privacy rights in what they put outfor the world to see. Anything in cyberspace can be used asgrounds to discipline an employee, no matter whether theemployee wrote it from work or outside of work.
7. How will social networking intersect with your broaderharassment, technology and confidentiality policies?Employment policies do not work in a vacuum. Employees’online presence—depending on what they are posting—canviolate any number of other corporate policies.
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Drafting a Social Networking Policy, an ExcellentOpportunity to Revisit, Update and Fine-tune Other Policies.For Example:
• Don’t let personal use of Twitter or other socialnetworking sites interfere with work. Company time?
• Employees must get company approval to use Twitterto conduct business. (Note: This isn’t far-fetched. Manyorganizations have successfully incorporated Twitterinto their marketing strategies.)
• Any use of the organization’s name, trademarks, logosor other intellectual property must be approved.
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• If employees make personal comments about any aspectof the organization’s business, their profiles must carry adisclaimer that the views expressed are their own, and notthe organization’s.
• Tweets may not disclose confidential or proprietaryinformation.
• Employees should use common sense about what theypost.
• BEWARE THE NLRB RULINGS
Drafting A Social Networking PolicyFor Example:
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• Disclosure of Confidential Information. There are severalways that employees could convert non-public informationinto public information in ways that have legal significance.
• If the company is publicly traded, stock price manipulation.
• If an employee posts company trade secrets in a blog, goodbyetrade secrets.
• Disclosing customer or third party info with all the concomitanttroubles.
• Would a blog post start the 1 year clock ticking on patent filingdeadlines under 102(b).
Drafting A Social Networking PolicyFor Example:
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Educate Employees
• Train employees on company’sexpectations regarding use ofInternet-based social media andappropriate vs. inappropriate useof social networking sites.
• Employees that understand thepersonal and professional risks ofinappropriate activity will be muchmore likely to self-regulate theironline behavior.
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Tips For Managers
• Caution managers on pitfalls of becoming “friends”with employees on social networking sites
• Don’t reveal anything you wouldn’t say or post in thebreakroom
• Diligently use privacy controls to manage flow of information
• Could become part of harassment or discriminationclaim even though “personal” page
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More Tips For Managers
• Don’t reveal anything you wouldn’t say or post inpublic.
• Don’t engage in fraud (“fake” friend requests orpasswords).
• Use privacy controls to manage flow ofinformation.
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Final Questions?
Presented by:Katherine P. SandbergPhone: (916) 210-0406
Email: [email protected]
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Thank You
Presented by:Katherine P. SandbergPhone: (916) 210-0406
Email: [email protected]