social media websites: legal risks of monitoring or...

Social Media Websites: Legal Risks

of Monitoring or Restricting Employee Use Minimizing Invasion of Privacy, Discrimination and Other Claims

Over Workers' Use of Facebook, LinkedIn and Other Sites

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TUESDAY, MAY 15, 2012

Presenting a live 90-minute webinar with interactive Q&A

Marcia Nelson Jackson, Partner, Wick Phillips, Dallas

Wayne E. Pinkstone, Partner, Fox Rothschild, Lawrenceville, N.J.

Todd A. Ewan, Partner, Fisher & Phillips, Radnor, Pa.

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5

Social Media Websites: Legal Risks of Monitoring or Restricting Employee Use

Recent Trends

Presented by

Wayne E. Pinkstone, Esq.

609.895.7063

[email protected]

May 15, 2012

6

Growth of Social Networking

Linkedin: More than 135 million users

MySpace: More than 150 million users

Twitter: More than 200 million active users

Facebook: More than 500 million users

7

Who Are These People?

• The younger folks.

• Experienced employees acting irresponsibly

online: Ct. high school teacher who lost tenure

due to My Space.

• Disgruntled employees: griping about work.

• You and me: vacation photos and how they can

be used against you.

8

Who Are These People?

• People expressing their opinion:

NJ blogger opposes federal judge’s ruling on handgun legislation, posts “let’s kill him” with judge’s address: charged with threatening to assault, kidnap and murder judge

• HR managers and recruiters: to find and

screen candidates.

9

Pre-Employment Issues:

To Check Or Not To Check?

Perceived Benefits of Checking Applicants’

Social Networking Sites:

• Verify employment history and/or references.

• “Weed out” undesirable applicants.

• See applicant’s communication skills/creativity.

10

Real Dangers of Checking Applicants’ Social

Networking Sites

• Exposure to liability under state and federal

anti-discrimination laws, including ADA, ADEA,

and Title VII. Photos disclose race, national origin and age

Groups can reveal sexual orientation, religion, disability

11

Checking Social Networking Sites Post-

Offer/Pre-Employment

• Liability under common law causes of action if you check after you make an offer, and the offer is pulled.

• If you check out candidates’ profiles, first make a conditional offer and build in a check with HR.

• Still can potentially be exposed to discrimination claims if you make different decision based on what you see and treat people in protected classes differently.

12

Consequences Of Employee Posts

• Benefit: effective sales and marketing tool.

• Danger: fertile ground for lawsuits and business problems.

Trend towards finding employer liability if the employees

accessed/sent information through company computer, conduct is job related and/or occurred during working hours.

Employers who can show that they blocked access to a

particular social networking site at work are avoiding liability in some instances.

13

Hazards/Liability Issues From Employee

Posts: Defamation and Harassment

• Defamation of the company, its managers, customers, co-workers, or others. Liability of employee and employer

• Harassment/discrimination against employees, managers or customers.

Liability for employers and employees for discrimination and

harassment claims under state and federal laws

14


Posts: Privacy Torts

• Invasion of privacy:

Intrusion on someone’s seclusion or physical solitude, highly offensive to reasonable person, they had a reasonable expectation of privacy

• False Light Publicity:

Falsely publicizing information about another, “highly offensive to reasonable person” standard

15


Posts: Privacy Torts

• Public Disclosure Of Private Facts:

Disseminating private facts, highly offensive standard

• Appropriation of a person’s likeness or name:

Unauthorized use of likeness or name of an ordinary person

16


Posts: Other Torts

• Negligence against employer

NJ case: employee posted photos of his daughter undressed on the internet, wife sued employer for negligence, said company knew and should have done more than give a warning

• Infliction of emotional distress • Tortious interference with a contract or an existing business

relationship • Tortious interference with financial interest or a prospective

business or contractual relationship

17

Other Hazards From Employee Posts

• Risk that employees will publicly disclose confidential

business information/trade secrets of employer or

customers/suppliers. Affect business in marketplace and possibly confidential

agreements company has with customers/suppliers

• Risk employees will harm a company’s brand or

image.

• Loss of productivity at work.

• Decreased employee morale (for victims of posts).

18

Other Hazards From Employee Posts

• Damage to employee’s reputation/image, loss of benefits.

• Potential evidence in wrongful discharge claims. Risk from managers recommending certain employees on

sites such as Linkedin (evidence: difficulty defending later actions)

19

Recent Legislation

Maryland - First state to ban employers from asking employees

and applicants for passwords to private internet accounts such as Facebook

- Prohibits employer from disciplining an employee for refusing to disclose passwords

- Prohibits employees from downloading company’s confidential and proprietary information

- Effective date – October 1, 2012

20

What Is The Impact?

Cannot require job applicant to log into personal account during job interview

Cannot ask applicant or employee to provide information regarding private account

Cannot require employee to disclose password as part of harassment investigation

Can investigate business use of personal account or copying confidential company information

21

Proposed Legislation

New Jersey

- Just last week assembly committee approved a bill aimed at preventing employers from obtaining social media passwords and user names

- Prohibits waiver of protection

- Civil penalties for violation

22


California

- Assembly panel approved legislation that would prohibit employers from requiring applicants and employees from disclosing user names and passwords

- Employer has no duty to investigate social media sites as part of applicant or employee background checks

23


Illinois - Law would bar employers from demanding

applicant or employee password but not username

- Does not limit employers’ right to have workplace electronic use policies and monitor use without requiring employee to provide password

- Does not bar employer from obtaining information in public domain

24


New York

Washington

Minnesota

25


Similar legislation recently introduced before Congress

U.S. Senators pressing the DOJ and EEOC to investigate practice of asking applicants during job interviews

Practice may violate privacy or anti-discrimination laws

Issue is on EEOC’s radar

Facebook’s warning to employers

26

Other Developments

Recent Virginia federal court decision dismissing case by workers who claimed a sheriff fired them after “liking” political opponent’s Facebook page

Court held that merely “liking” a Facebook page is not protected speech under the First Amendment

Actual statements are needed

Decision likely to be appealed

27

Konop v. Hawaiian Airlines

Konop was a pilot who worked for Hawaiian and was upset at his

union’s concessions in the collective bargaining process.

Konop created a web site containing statements critical of

Hawaiian's President, and urging Hawaiian employees to consider

alternative union representation.

The web site was password protected and the Konop only gave

access to certain employees.

A Vice President for Hawaiian obtained the password from a

different employee and then logged into the web site as that

employee.

28

Konop v. Hawaiian Airlines

The Court held:

Unauthorized access and review of the contents of a password protected web site can constitute violations of both the Wiretap Act, 18 USC §§ 2510-2520, and the Stored Communications Act, 18 USC §§ 2701-2710.

An employer’s unauthorized access of such a web site that is critical of officers of the employer and urges company employees to consider alternative union representation, can constitute impermissible surveillance of union organizing activities in violation of the Railway Labor Act, 45 USC § 152.

29

Pietrylo v. Hillstone Restaurant Group

Employees created a Myspace page that they used to air their grievances against the Defendant employer.

The web site was password protected and they invited other employees to join, but not any managers.

A manager caught wind of the site and demanded access from an employee, who provided the password.

After the manager obtained access and logged in a few times to view the material, the site’s creators were terminated for damaging employee morale.

30

The Court held:

The jury found that the employer violated

the Stored Communications Act by,

through its managers, knowingly or

intentionally or purposefully accessing

the web site.

The verdict was upheld.

Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston

Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans

Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC

www.laborlawyers.com

Social Media Websites: Legal Risks of

Monitoring or Restricting Employee

Use

Presented by:

Todd Alan Ewan, Esquire

Fisher & Phillips LLP

610-230-2140

[email protected]

mailto:[email protected]

www.laborlawyers.com 32

Protected Activity Under

National Labor Relations Act



Right to Improve Work Conditions

• Non-Supervisors in private sector protected

• Employees have right to form, join or assist a

labor organization and to act collectively to

improve terms and conditions of employment

under Section 7

– Employees also have right to refrain from engaging in

such activity

• Employers are prohibited from restraining or

coercing employees in exercise of rights



Employee Advocacy

• Prohibits discipline for some

forms of employee advocacy

• Section 7 protects

employees in both unionized

and non-union workplaces

• Unfair labor practice for

employer to interfere with

proper exercise of right



Concerted Activity

• Section 7

– Protects concerted

activity

– For “mutual aid and

protection”

• Employees have right

to address concerns

related to wage,

hours or working

conditions


Section 7

• Section 7 protects employees' right to form, join and assist labor organizations, engage in collective bargaining, and to engage in other concerted activities for mutual aid or protection.

• This protection typically extends to comments/complaints regarding “terms and conditions” of employment. For example, a rule broadly prohibiting discussion of wages is facially violative of the NLRA and an unfair labor practice. See Guardsmark v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007).

• Disciplining an employee for violating such a rule is also an unfair labor practice.


Scope of Concerted Employee Activity

• NLRB’s broad definition of “concerted”

employee activity includes:

– Employee “engaged with or on behalf of other

employees”

– One employee bringing up a group concern to

management

– Individual action “seeking to initiate group

action” or “with a purpose of furthering group

goals.”


Social Media & The Workplace


• The lines between personal and professional communications continue to blur:

– 39% of all workers with personal email accounts check them at least once a day while they are at work

– 44% of workers who actively use smart phones for email say most or all of the messages they send and receive are personal in nature

– 47% of workers who use smart devices for text messaging say that all or most of that messaging is personal in nature

Pew Internet & American Life Project – Survey 2008

Your Wireless & Digital Workforce


Employer Policy Options

• Limit use of the network to business purposes only

• Prohibit use of employee work e-mail address for social networking account

• Remind employees of the policy and that the company reserves the right to monitor use of electronic resources, without notice to employees, and employees have no reasonable expectation of privacy in the use of the company’s electronic resources


The “Wall” Post Meets the Workplace

• Caution managers on pitfalls of becoming “friends” with employees on social networking sites

– Don’t reveal anything you wouldn’t say or post in the break room

– Diligently use privacy controls to manage flow of information

• Could become part of harassment or discrimination claim even though “personal” page


The NLRB and Social Media

• The NLRB is aggressively supporting employee

use of social media to engage in union or

protected concerted activity- in both union and

non-union employment settings!

• No discipline for engaging in union or protected

concerted activity.

https://nlrb.gov/


Unions Are Using Social Media

www.laborlawyers.com 44 www.laborlawyers.com

The NLRB and

• The Company policy:

"Employees are prohibited from making disparaging, discriminatory or

defamatory comments when discussing the Company or the

employee's superiors, co-workers or competitors.“

• Employee fired for posting disparaging remarks

about company and her supervisor

• Acting General Counsel

issues ULP complaint in

November 2010


NLRBActing General Counsel’s

Views on Social Media

• Social media is the 21st century equivalent of the water cooler – “[W]hether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.” Acting GC talking about American Medical Response case.

• Employees use of social media to engage in protected concerted complaints about their employment is protected by NLRA

• Employer policies should not be so sweeping that they prohibit protected activity

• Employees who merely air individual gripes not made in relation to group activity among employees not protected by NLRA

//upload.wikimedia.org/wikipedia/en/1/1e/Twitter_2010_logo.svg


The Regulatory Approach to Social Media

• “Hot Topics” – social media and use of

employer e-mail are policy priorities

• NLRB Issued two reports interpreting

NLRA as to social media

– August 2011

– January 2012

• Scrutinizes employer policies for

“overly broad” language

• Rejects “savings clause” for a lawful

social media policy

• Disapproves ban on use of company

name and logos in Section 7 activity


Is That A Gripe?


Anatomy of a Gripe

• No particular audience in mind at time of

employee’s Facebook post

• No language suggesting that employee seeks to

initiate or induce coworkers to engage in group

action

• Facebook post did not grow out of a prior

discussion about terms and conditions of

employment with coworkers

• Facebook post did not generate discussion of

shared complaints about working conditions

//upload.wikimedia.org/wikipedia/commons/0/06/Facebook.svg


The ULP Trends for Social Media Cases

• The Acting General Counsel’s testcasesettled in

February 2011 prior to hearing

• Series of ALJ Decisions against employers in 2011

• 75 cases in regional offices being tracked by

NLRB Division of Advice as of January 2012

• Acting General Counsel routinely challenging

policy language as unlawful on its face

• Three cases involving social media questions

currently pending before the Board


Pending Board Cases

All Involve Off-duty Facebook Posts

• Hispanics United of Buffalo – non-profit organization terminated 5 employees after they posted comments on Facebook concerning working conditions, one of their managers, and some of their clients – Posts were made after work hours

– ALJ ruled that terminations were unlawful

– “Explicit or implicit criticism by a coworker of the manner in which they are performing their jobs is a subject about which employee discussion is protected.”

– Was irrelevant that complaints were not made to employer


Pending Board Cases


• Karl Knauz BMW – employee posted photos

that included sarcastic commentary of an

accident at an automobile dealership that had

same ownership as employee’s employer

– Employee’s employment was terminated

– Termination was found by ALJ to be lawful

– Employee’s posts had no connection to the terms

and/or conditions of employee’s employment


Pending Board Cases


• Triple Play Sports Bar – employees

participated in Facebook conversation regarding

their employer’s withholding of taxes

– Employees were terminated

– ALJ found that terminations were unlawful

– ALJ also found that employee was protected under

the NLRA for clicking the “Like” button regarding the

conversation


Lessons on Policy Language

from the Acting General Counsel

• Terms to avoid

– “Disparagement”

– “Inappropriate conduct”

• Define terms

• Use examples

• Location and wording of “savings clause”


THANK YOU

Presented by:

Todd Alan Ewan, Esquire

Fisher & Phillips LLP

610-230-2140

[email protected]

mailto:[email protected]

Marcia Nelson Jackson 2100 Ross Ave., Suite 950

Dallas, Texas 75201 Ph.: (214) 692-6200 Fax: (214) 692-6255

www.wickphillips.com

http://www.wickphillips.com/

Pre-Employment: Recruiting

• If you choose to examine external social networks, have a trained non-decisionmaker conduct search and filter out information related to protected characteristics before passing along to hiring manager.

• Have searches run by employer and not third party to avoid potential issues under the Fair Credit Reporting Act or state-specific statutes.

• Carefully consider criteria in determining how and when to use online social networking sites in evaluating applicants and apply criteria across the board.

56

During Employment: Draft/Update and Distribute a Policy Adopt (and/or update) a well-crafted Blogging/ Social

Networking policy.

Notify employees of its existence and strict enforcement.

Publish/distribute the policy and obtain a policy acknowledgement.

Regularly review, update and/or revise policy based on legal precedent/evolving case law.

57

What is the company’s current “online reputation” and how is this managed?

Does it make sense to form a social media “team” that can offer guidance to executives on policy related to social networking, uses, abuses, etc.

How can the company maximize the impact of the policy’s overall goals?

How will you distribute the policy?

How will you train employees/managers?

Crafting The Policy: Before You Begin

58

Marcia N. Jackson

Wick Phillips Gould & Martin, LLP

How far do you want the policy to reach?

Do you want to permit any online social networking at work?

How will you monitor compliance?

If you permit employees to participate in online social networking at work, do you want to limit it to work-related conduct, or permit limited personal use?

Do you want employees to identify with your business when networking online?

How do you define “appropriate business behavior?”

Ask The Right Questions For Your Company

59

Marcia N. Jackson


• Email and the Internet

• Instant Messaging

• Intranets

• Weblogs or “Blogs” (including “microblogging”)

• Social Networking

• Global Positioning Systems

• Handheld wireless devices (Blackberries, Palm Pilots)

• Cellular Phones/Camera Phones (video sharing, photo sharing)

• Laptops/Notebook Computers

• Podcasts

Include The Latest Technologies With Flexibility To Cover New And Emerging Ones

60

Marcia N. Jackson


61

Use Your Existing Policies As The Foundation For Your Social Networking Policy.

Social networking activities should be consistent with and/or subject to the company’s policies and procedures on (for example):

־ protecting the confidentiality of company information;

־ safeguarding company property;

־ prohibiting employment discrimination, harassment or retaliation; and

־ governing use of the company’s communication and computer systems.

• Is sensitive or confidential information marked and treated as such?

• Are your employees downloading and distributing copyrighted materials?

• Are emails being used to discuss sensitive employment issues?

• Have you extended your “No Solicitation” policy to all forms of communication, including to emails and intranets?

• Have you ensured your web-based security is consistent with your policy and blocks inappropriate or prohibited sites?

Ensure Your Existing Polices And Practices Support And Are Consistent With Your Online Social Networking Policy

62

Marcia N. Jackson


• All company systems, owned or issued -- as well as the relevant data -- belong to the company.

• All business systems and company-issued equipment must be used for appropriate and lawful business purposes only.

• Inform employees that email and Internet usage will be monitored and employees should have no expectation of privacy.

• Include the right to inspect and confiscate any hardware devices issued to or used by employees.

Remind Employees Of Their Existing Obligations

63

Marcia N. Jackson


• If you will allow “business use,” determine what constitutes “appropriate business use” and incorporate guidance into your policies.

• Create policies regarding employee blogging/social networking at home that carefully balance company and employee interests, without being perceived as onerous or overreaching.

• Incorporate and reference other company policies, including anti-harassment and discrimination policies, intellectual property and works-for-hire, trade secrets, and reference any nondisclosure/confidentiality agreements that may exist separate from the employee handbook.

• Caution against unlawful conduct such as discrimination or harassment, invasion of privacy, violations of security laws, defamation, etc.

• Address appropriate restrictions and prohibitions regarding use of the company name, logo, uniform, or identification with the company, as well as disclaimers that views expressed do not express views or opinion of the company.

• Consider an express limitation that prohibits employees from using their work email address for online social networking sites.

• Consider drafting a suggested “disclaimer” employees can use to ensure that their online postings are not to be deemed representations by the company.

Key Policy Components

64

Marcia N. Jackson


Key Policy Components Harassing or discriminatory comments may be deemed

inappropriate even if the Company name is not mentioned.

If such communications in any way adversely affect work relationships, the employee may be subject to discipline and/or termination.

Employees should be appropriately prohibited (keeping in mind NLRB decisions) from using the name, trademarks, logos, other identifying marks or copyright-protected material of the Company or its clients.

65


This policy is not meant to restrict an employee’s use of Social Networking Sites and/or blogs for purely personal reasons where the employee does not identify himself or herself as an employee of the company.

66

• Provide a central source, such as HR, for reporting (and responding to) allegations of inappropriate blogging/social networking.

• Avoid non-protected speech that adversely impacts the company’s reputation and/or business.

• Spell out consequences of policy violations.


67

Marcia N. Jackson


Employees should be prohibited from disclosing or discussing in online social networking and blogging activities:

־ Protected company confidential or proprietary information

־ information regarding the Company’s clients or business partners

־ details of a particular client engagement

־ **Keep in mind that wages/terms of employment may not be deemed “confidential” by the NLRB.**

68


Employees are strictly prohibited from listing their Company e-mail address on their profile unless the Social Networking Site or blog is used purely for Company business or professional purposes.

69

Privacy Issues

Reduce or eliminate any expectation of privacy by the employees in the company computer and email system and explain what employees should and should not do.

Employees should expect that information exchanged on social networking sites and/or blogs may be accessed by the company at any time without prior notice.

70

Privacy Issues

Monitor compliance with the rules.

Train employees in the content and applications of your rules.

Be consistent in enforcing them.

71

Management Training:

־ Managers and supervisors are the face of the company.

־ What they say on social networking websites is a reflection of the company.

־ Do not disclose private information about employees on social networking sites.

72

־ Let managers and supervisors know that improper disclosure of private information can potentially subject both them and the company to liability for invasion of privacy.

־ Adequately train supervisors and other management personnel regarding the policies and their enforcement to ensure consistency.

73

Caution managers on pitfalls of becoming “friends” with employees on social networking sites.

־ Don’t reveal anything you wouldn’t say or post in the break room.

־ Diligently use privacy controls to manage flow of information.

Could become part of harassment or discrimination claim even though “personal” page.

Potential Policy Problems (According to the NLRB): Vague/Overbroad Probitions

“Employees engaging in online social networking and blogging activities are expected to remain respectful of the Company, and its employees, its products and services, its clients, its partners, its affiliates, its vendors and suppliers, and its competitors (and their products and services).”

75

Overbroad?

“Employees are prohibited from posting any material that is obscene, vulgar, defamatory, threatening, discriminatory, harassing, abusive, hateful or embarrassing to another person or entity, and should not engage in activity that reflects or may reflect negatively on the Company, its affiliates, employees or clients.”

76

2012 NLRB Report: Two guiding principles: (1) employer policies cannot

prohibit or restrict “concerted” activities protected by the NLRA; and (2) an employee’s comments on social media are generally unprotected by the NLRA if they are simply “individual” complaints rather than complaints made in relation to group activity among employees.

77

Considered Illegal Were:

Forbidding employees from making “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

A policy that “employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”

78

Considered Legal Were:

Prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients.

Prohibiting employees from using social media to “post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

79

Considered Unlawful -- A policy disclaimer that nothing in it should be

construed to prohibit employee rights under the NLRA was not enough to “save” an otherwise unlawful policy.

Prohibiting employees from using social media for “unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.”

80

The NLRB Will Most Likely Find Social Media Policies Unlawfully Broad When They Include The Following Employee Prohibitions:

Making disparaging comments about the company through any media, including online blogs, other electronic media or through any media.

Requiring employees to always or never identifying themselfves as the employer’s employee unless discussing terms and conditions of employment in an appropriate manner.

Using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission or unprofessional/inappropriate communication regarding members of the employer’s community.

Forbidding discussion of information that is confidential, sensitive or non-public nature concerning the company without prior approval.

Forbidding the use of the company’s name outside the course of business without prior approval.

Requiring approval from the company prior to identifying as an employee of the company on social networking sites.

81

2012 NLRB Reports – Lessons Learned

Context, Context, Context

82

“The Board has indicated that a rule’s context provides the key to the ‘reasonableness’ of a particular construction. In this regard, the Board has found that a rule forbidding ‘statements’ which are slanderous or detrimental to the company that appeared on a list of prohibited conduct including ‘sexual or racial harassment’ and ‘sabotage’ would not be reasonably understood to restrict Section 7 activity. “ Tradesmen International, 388 NLRB 460, 460-62 (2002).

“Like the rule in Tradesmen International, the Employer’s amended social media policy would not reasonably be construed to apply to Section 7 activity. The rule appears in a list of plainly egregious conduct, such as violations of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic. Further, unlike the initial policy, there was no evidence that the amended policy had been utilized to discipline Section 7 activity.”

83

“Another provision in the Employer’s rules provided that while engaging in social networking activities for personal purposes, employees must indicate that their views were their own and did not reflect those of their employer. They were also prohibited from referring to the Employer by name and from publishing any promotional content.

We again concluded that employees would not reasonably interpret this rule, which appears in a section entitled ‘Promotional Content,’ to restrict Section 7 activity. The section includes a preface explaining that ‘special requirements apply to publishing promotional content online,’ defines such content as ‘designed to endorse, promote, sell, advertise, or otherwise support the Employer and its products and services’ and refers to FTC regulations. In this context, employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”

84

I. Introduction/Philosophy: “This company believes that social networking is an important form of communicating. . .”

Begin with a discussion of the company’s overall or general orientation towards social networking. Then itemize a nonexclusive list of risks that are posed by uncontrolled postings into social networking. ** This will help to set the context of your policy. ***

II. Policy Prohibitions

III. Reminder/Disclaimer: “Company employees should comply with all existing company policies including, but not limited to . . .”

Organizing Your Policy

85

Marcia N. Jackson


“Easter Seals is pleased to provide a forum for sharing and interacting with others about autism. The viewpoints, opinions and actions expressed in comments are those of the individuals themselves, and may not reflect Easter Seals policies or positions. Always verify information with a qualified professional before taking action.

Our goal is to provide an online community where people with all kinds of views, theories, and concerns can express themselves, can share information, and can interact with one another. Any messages or stories shared on this site may be used in other Easter Seals marketing activities.

Please review our online community guidelines regarding your responsibilities and Easter Seals’ role in the community.”

Introduction Example - Sponsored Page

86

Marcia N. Jackson


Post-Employment • LinkedIn (or similar) “Review” “Endorsement” or “Recommendation”

Risks:

• Some employers "review" their former employees, or “recommend” individuals on LinkedIn and other such sites.

• If an employee is terminated and the good review stands on the website, this may be considered tantamount to giving a positive reference of a not-so-positive employee. Also could be used in a lawsuit to contradict a bad formal performance review.

• As a general rule, only post/provide reviews to the same extent you would provide written references.

• Even more of an area for concern since it is a public forum, and not information provided solely to one other potential employer (which may be privileged).

• The reverse is true should a bad "review" appear – may be used to support a claim of unlawful interference with future employment.

87

The strength of your policy depends on employee education and consistent

enforcement!

88

Marcia N. Jackson


NPR social media Guidelines: http://www.npr.org/about/ethics/social_media_guidelines.html

Harvard law school: http://blogs.law.harvard.edu/terms-of-use/

Easter Seals: http://www.easterseals.com/site/PageServer?pagename=ntlc8_community_guidelines

BBYO: http://www.etheoreal.com/techstew/2008/11/16/friendly-advice/

Social Media Governance – Policy Database: http://socialmediagovernance.com/policies.php?f=5

http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report

Additional Resources/Policy Samples

89

Marcia N. Jackson


http://www.npr.org/about/ethics/social_media_guidelines.html

http://blogs.law.harvard.edu/terms-of-use/





http://www.easterseals.com/site/PageServer?pagename=ntlc8_community_guidelines

http://www.easterseals.com/site/PageServer?pagename=ntlc8_community_guidelines

http://www.etheoreal.com/techstew/2008/11/16/friendly-advice/



http://socialmediagovernance.com/policies.php?f=5
















Marcia N. Jackson


social media websites: legal risks of monitoring or...

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