social media in the workplace and beyond

Social Media In the Workplace and Beyond

Alexander Nemiroff, Esq.

Jackson Lewis, LLP

1601 Cherry Street, Suite 1650

Philadelphia, Pennsylvania

267.319.7816

[email protected]

What is “Social Media”?• MySpace

• Facebook

• Friendster

• LinkedIn

• Twitter

• Skype

• Blogs

• Digg, Reddit, Technorati

• YouTube

• Unvarnished

• Instant Messaging

• Texting

Copyright 2011 Jackson Lewis LLP

Social NOTworking?• How many working hours are lost?

• 50% of Facebook users log on every day

• 22% visit social networking sites 5+ times/week

• Only 52% of employees say they don’t use social networking sites during work hours

• And that’s not counting time spent texting, instant messaging, surfing, making phone calls, etc. …


Employee Views on Social Media Use

• Survey says:

• 53% of employees say their social networking pages are none of their employers’ business

• 74% say it’s easy to damage a company’s reputation on social media

• 15% say that if their employer did something that they didn’t agree with, they would comment about it online


What Do Employers Do?

• 40% of business executives surveyed disagree that what employees put on their social networking pages is not the employer’s business

• 30% admit to informally monitoring social networking sites

Copyright 2011Jackson Lewis LLP

Key Legal Challenges for Employers

Negligent hiring/supervision

Discrimination/harassment/retaliation

Disclosure of trade secrets or proprietary information

Reputational harm to employees

Reputational harm to employers

Privacy pitfalls

Legal constraints on employee discipline


Would You Hire Him as a Lifeguard?


Do You Have the Same Response?


Risk Factor: Negligent Hiring/Supervision/Retention

An employer may be held liable for an employee’s wrongful acts if the employer knew or had reason to know of the risk the employment created

Doe v. XYC Corp., N.J. Super. 122 (2005)

• Employee was criminally charged with child pornography using a workplace computer

• Court held employer had a duty to investigate and respond


Risks for Employers• Using the Web to Make Hiring Decisions

• Many employers and job recruiters check out potential employees on the Web

Using search engines such as Google or Yahoo and internet sites such as PeopleFinders.com, Local.Live.com or Zillow.com

• Some studies show more than half of employers use some kind of screening on social networking sites

Information Found on Social Networking Sites

Education Work History Career Interests

Hobbies Favorite Music Favorite Movies

Vacation Photos Party Photos Family

Information

Links to Profiles of

FriendsLinks to Blogs Political Views


Problem: A search may identify an applicant’s protected characteristics such as age, race, sexual orientation, marital status, arrests or other factors that should not be considered in a hiring decision.

Solution: Have a non-decision maker conduct the search and filter out protected information. Alternatively, hire a third party to conduct the search and filter out protected information.

Hiring Decisions Based Upon Social Networking Activity


Guidelines for Employers on Internet Search of Applicants

If you are going to do these searches:

Do them consistently; towards the end of the hiring process

Screen out protected information

Verify information

Document the search; and

Determine how relevant the information is to the job

Hiring Decisions Based Upon Social Networking Activity

Risk Factor: Discrimination, Harassment - Employee Use of Social Media • Electronic communications offer opportunities for

misuse

• Can be used as evidence to support a harassment or discrimination claim

Blakely v. Continental Airlines, Inc., 164 N.J. 38 (2000)

• Alleged harassment via “Crew Member Forum”

• Company has duty to take effective measure to stop the conduct once it knew or should have known harassment was taking place


“Sexting” Concerns

20% of teens and 33% of young adults electronically sent nude photographs of themselves

39% of teens and 59% of young adults sent sexually explicit text messages

Source: National Campaign to Prevent Teen and Unplanned Pregnancy, 2008 Survey


Risk Factor: Reputational Harm to Employees

Defamation - plaintiff must prove defendant published a false statement about plaintiff that tends to harm plaintiff’s reputation

Employer can be liable if the employee had apparent authority to speak on its behalf – Beware of personal references!!


Risk Factor: Reputational Harm to Employers

Employees posting videos and photographs damaging to company’s image• Domino’s, Burger King, KFC

Former employee slamming company’s system with disparaging e-mails• 200,000 e-mails sent to 35,000 Intel employees complaining

about former employee’s treatment by Intel

Former employees “cyber-smearing” employer

• Result: $775,000 compensatory and punitive damages award against former employees

• Varian Medical Systems, Inc. v. Delfino, Santa Clara Super. Ct. No. CV780187 (Dec. 18, 2001)


Is this the Image You Want for Your Company?


How about this one?


Not Laughing Now


Risk Factor: Employee Discipline

National Labor Relations Act

oEmployees who IM or blog about their working conditions or employers may be protected under the NLRA

o Employees have a right to engage in "concerted activity“ for the purpose of collective bargaining or other mutual aid or protection

o Applies to both union and non-union employees


Legal Constraints on Disciplining Employees for Online Activity

Unlawful Restrictions:

Statement that prohibits the sharing of information concerning other employees, such as wages, hours and terms and conditions of employment.

Lawful Restrictions:

o Prohibition on disclosing confidential company business information and documents; Prohibition on disclosing “confidential” employee information;

o Prohibition of conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with the Company’s employees.

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Legal Constraints on Employee Discipline: NLRA

What is protected activity:

• Kiewitt Power Constructors Co., 355 NLRB No. 150 (8/27/10)

Held two employees complained to their supervisor regarding the location of where they were required to take their breaks and then told the supervisor the situation could “get ugly” and supervisor had “better bring [his] boxing gloves” engaged in protected concerted activity under the Act because the statements were spontaneous and not outright threats.

• Plaza Auto Center, Inc. 355 NLRB No. 85 (8/16/10)

Held that a salesperson who shouted at his employer’s owner that he was a “f…ing crook” and an “a..hole” during a meeting with management to discuss pay and commissions, among other things, was engaged in protected concerted activity at the meeting and that his outburst was not so egregious so as to lose the protection under the Act.

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Other Outlets for the Disgruntled Employee

www.jobvent.com

www.hateboss.com

www.workrant.com

www.fthisjob.com

www.rantasaurus-rex.com

http://www.jobvent.com/

http://www.hateboss.com/

http://www.workrant.com/

http://www.fthisjob.com/

http://www.rantasaurus-rex.com/


Expression of political opinions (e.g. New Jersey)

Legal off-duty activities (e.g. California, Colorado, Connecticut, New York)

Wrongful termination in violation of public policy (arrests, convictions, bankruptcy, workers’ compensation history)

Whistleblowing (SOX, Wage & Hour)

Risk Factor: Employee Discipline


Risk Factor: Federal Wiretap Act

Prohibits “interception” of electronic communications

Most courts hold that acquisition of electronic communications must occur contemporaneously with transmission

Is monitoring of Instant Messages “interception”?


Risk Factor: Federal Stored Communications ActPrevents employers from using illicit or coercive means to access employees’ private electronic communications Pietrylo v. Hillstone Rest. Group, 29 I.E.R. Cases 1438 (D.N.J. 2009)

Jury verdict for employees under the Stored Communications Act, 18 U.S.C. §2701(a)(1), affirmed by federal court where managers accessed employee’s blog.

Employees of Houston’s restaurant maintained an invitation-only chat room (the “Spec-Tater”) on MySpace for fellow employees to “vent” about their work experiences. It became populated with complaints about the restaurant, customers, and supervisors. One employee told supervisors about the site and they asked for her password.


Pure PowerBootCamp v. WarriorFitnessBootCamp LLC (2nd Cir., 2011)

Accessing Personal E-mails Can Violate Federal Stored Communications Act Even With No Actual Damages

Two employees left to start competing fitness facility.

Pure Power learned through 546 e-mails from four personal accounts belonging to the former employees (e.g. Hotmail) that former employees had taken customer lists, training and instruction materials, and solicited customers.

How? The former employees had stored their usernames and passwords on company’s computers.

Employees countersued under SCA -- $1,000 per count


• Key question: Did the employee have a reasonable expectation of privacy in the electronic communication?

• Ensure monitoring is:

• based on legitimate needs, and

• limited in scope to achieve those needs

Employee Monitoring and Privacy Issues


It’s Amazing What Folks Put on the Internet for Everyone to See


WHAT??



Courts are more likely to rule for the employer if:

o Employer owns the computer and e-mail system

o Employee voluntarily uses an employer’s network

o Employee has consented to be monitored (usually based in written personnel policy)



Currently unclear if an employee has a reasonable expectation of privacy in blogs or IMs

Courts have split on whether there is a reasonable expectation of privacy in content maintained on third-party servers (e.g., web-based e-mail accounts)


Is There a Right to Privacy in Email, Texts, and Communications on Employer Systems?

• In a unanimous decision, the U.S. Supreme Court held that the City of Ontario’s review of transcripts of an employee’s text messages sent and received on a City-issued pager was a reasonable search under the Fourth Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No. 08-1332 (June 17, 2010).

• The Court disposed of the case on narrow grounds, preferring to avoid the risks of establishing "far-reaching premises" before the role of technology in society and its Fourth Amendment implications becomes clear.”

• Nevertheless, the Supreme Court outlined principles instructive to all employers that allow employees to use electronic communications devices, including cell phones, i-Phones, and Blackberries.


Policy Guidance from Quon

All employers must be prepared with comprehensive computer and electronic equipment usage policies. The Court noted that these policies will help shape an employee’s expectation of privacy. Further, it is critical that practices and policies be consistent, reflect current technologies, and be clearly communicated.

Employers also should consider requiring employees to acknowledge in writing that they received and reviewed these and similar policies and procedures, particularly as new technologies are introduced.


Methods to Minimize Risk

• Develop a written policy regarding access by HR and hiring managers to applicant and employee social networking sites

• Train HR and IT personnel responsible for monitoring and using electronic information on:

• Avoiding improper access • Screening out information that cannot be lawfully

considered in hiring and disciplinary decisions



• Prohibit access to private password social networking sites without proper authorization

• Do not allow any third party to “friend” an applicant to gain access to the applicant’s site

• Ensure employment decisions are made based on lawful, verified information



• Consider restriction on professional references via LinkedIn

• Consider blocking or limiting employee access to social networking sites through company computers

Drafting an Effective E-Mail and Internet Use Policy


Key Elements of Electronic Communications Policies

Consider company philosophy and business

No expectation of privacy when using company equipment

Employees must abide by non-disclosure and confidentiality policies and agreements



Only individuals officially designated may speak on behalf of the Company

“Bloggers Beware” - Require a disclaimer:

“The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.”



Company policies governing corporate logos, branding, and identity apply to all electronic communications

Employees may not make defamatory comments when discussing the employer, co-workers, products, services and/or competitors

Based on the FTC’s endorsement guidelines, require employees to obtain prior approval before referring to company products and services and to disclose the nature of the employment relationship



• Do not prohibit employees from discussing terms and conditions of employment

• If allowed at work, time spent social networking, blogging or texting should not interfere with job duties

• Remind employees expected to comport themselves professionally both on and off duty


Terms of an Effective E-Mail and Internet Use Policy

• Employer should REVIEW AND REVISE policies regularly

– Need to put date on each revision

• Employer should ACTUALLY MONITOR use of the system and devices to maintain and protect policy’s integrity – Guard against violations and

inconsistent use

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• The Town of Bozeman, Montana, required job applicants to provide passwords to email (Google, Yahoo!) and social networking sites (MySpace, Facebook) accounts.

• 98% of people polled believed this policy to be an invasion of privacy

• On June 22, 2009, the town rescinded the policy

Employer Overreaching


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social media in the workplace and beyond

Documents

social networking pages

social media

reputational harm

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employees