Status Update: Developments On Social Media In The

Workplace

League of California Cities City Attorney Track September 19, 2013

Traci I. Park Burke, Williams & Sorensen, LLP

www.bwslaw.com Los Angeles | Inland Empire | Silicon Valley | Oakland

Orange County | Palm Desert | Ventura County

Session Overview

• Prevalence Of Social Media • Recent Litigation Involving Social

Media • Legislative Update On AB1844 And

Cyber-Vetting Of Employees • NLRB Trends Involving Social Media • Practical Strategies For Cities And

Public Agencies

Prevalence of Social Media

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Sta

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ics • As of May 2013, Facebook claims to have

more than 1.06 Billion active users • 72% of online adults use social media • 50% log in daily • 22% log in several times per day • 54% use mobile devices to access social

media • Facebook accounts for 1 out of 5 page

views on the Internet worldwide • Users average more than 700 billion

minutes per month on Facebook

• Links about sex are shared 90% more than any other kind of link

• The average Facebook user spends 30 minutes per visit on the site

• 25% of social media users have no privacy controls

• There are 92 billion views of YouTube every month

• There are 190 million tweets per day on Twitter • Twitter has filed IPO paperwork with the SEC • $600 million revenue in 2013

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In Just One Minute on Facebook…

Comments 510,404

Posts liked 382,861

Messages Sent 231,605

Photos Added 135,849

Friendships Approved 98,604

Status Updates 82,557

Wall Posts 79,364

Event invites received 74,204

Pages Liked 72,816

Photos Tagged 66,168

Links Shared 55,304

1,789,736 Actions Performed

The Blue Line

• Created by former LAPD Chief Bill Bratton, it will be the new social media for police

• Set to launch at the International Police Chief’s Conference in October

• Held out as the on-line forum for police to exchange and share information, experience, expertise and has screen share and video conferencing capabilities

• Good idea or lawsuits in the making?

Recent Litigation Involving Social Media

Social Media & Litigation • In the first half of 2012, there

were over 320 published cases across the country involving social media evidence. There are currently over 800 such cases.

• Litigation involving social media and public entities continues to increase in California and across the country.

Lit

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Issu

es

• Right of Privacy / First Amendment • Equal Protection / Due Process • Discrimination, Harassment and

Retaliation / Whistleblower Protection

• Defamation • Off Duty Conduct Law • Labor Relations • The Public Records Act

Social Media & Employment Litigation

Bland v. Roberts 857 F. Supp. 2d 599 (E.D. Va. 2012) (Currently on appeal in the Fourth Circuit)

-Employees were fired by the Sheriff for “liking” the campaign page of the Sheriff’s opponent during a local election.

-The District Court held that the act of “liking” a page on a social networking website was not constitutionally-protected speech.

Bland v. Roberts: Appellate Issues

• Is “Liking” something on Facebook speech protected by the First Amendment?

• Can public employees be terminated for engaging in such speech?

• Legal experts believe the U.S. Supreme Court will eventually decide these questions.

Social Media & The Public Records Act

Smith v. City of San Jose et al Santa Clara County Superior Court (Currently on appeal in the Sixth Appellate District)

Trial Court order effectively required the City to

obtain and disclose personal communications created and received by City of San Jose Council members in their personal accounts and using their personal electronic devices.

Smith v. San Jose: Appellate Issue

• Are private communications of public officials subject to disclosure under the PRA?

• In June 2013, LOCC submitted amicus brief arguing Council member’s text messages, emails and voicemails on privately owned devices should not be subject to disclosure under the PRA.

Other Uses During Litigation Social Media evidence is regularly being used in all aspects of litigation:

1) Impeachment of jurors on voir dire

2) Impeachment of key witnesses

3) Photos as evidence 4) Solicitation of class

members

Social Media During Discovery

• Romano v. Steelcase, Inc. (2010) 907 N.Y.S. 2d 650 – Defendant filed motion for access to personal injury

plaintiff’s social network accounts. – Court held:

• Information was material and necessary to defense; • Plaintiff did not have a reasonable expectation of privacy

in information published on social networking site; • Defendant’s need outweighed privacy concerns raised by

plaintiff.

Other Legal Concerns • Discrimination/Equal Protection/Due Process

– Inconsistent enforcement of policy. – Learning of protected information on social media.

• Harassment – Obligation to protect employees from harassment.

• Retaliation/Whistleblower – Potential to retaliate against an employee

who acts as a whistleblower online. • Defamation

– Internal online forums for employees.

Oth

er L

ega

l Con

cern

s • Lawful Off Duty Conduct – Must Cause Actual Discredit

to the Employer – Rational Relationship

Between Misconduct and Employment

– The Essential Test Is Whether the Conduct Harms the Public Service

Legislative Update: AB1844 And Cyber-Vetting Of Employees

Cyber-Vetting Of Employees • Using social media as a background

investigation tool is becoming increasingly common, but there are significant risks:

• Protected categories • Web information is inherently risky • AB 1844

Legislative Update: AB1844 On January 1, 2013 Labor Code Section 980 went into effect: • Makes it unlawful for employer to

require or request than an employee or applicant disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any social media content.

Legislative Update: AB1844

• Prohibits an employer from disciplining, threatening to discipline or discharge, or otherwise retaliate against an employee or applicant for not complying with a demand by the employer that violates these provisions.

Legislative Update: AB1844

The new law defines “social media” very broadly to include:

"an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations."

Legislative Update: AB1844

There is an exception: Nothing in this section shall affect an

employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

Legislative Update: AB25

• Passed on September 11, 2013 • Amends new Labor Code Section 980

to expressly cover public employers as follows:

“Employer” means a private employer or a public employer. For purposes of this chapter, “public employer” means the state, a city, a county, a city and county, or a district.

NLRB Trends Regarding Social Media

NLRB Administrative Case Update

• In 2011-2012, the NLRB issued three reports discussing about 150 cases involving social media in the workplace.

1. Concerted Activity/Employee Discipline Cases

2. Social Media Policy Cases

NLRB Concerted Activity Cases

“Concerted Activity” under Section 7 of the NLRA: - Occurs when an employee acts with or on the

authority of other employees, not on his own behalf;

and - Where the subject of the discussion is wages,

hours or working conditions.

Concerted Activity?

• Five employees discussing allegations of poor job performance by co-workers, staffing levels, and workload were unlawfully terminated for engaging in concerted activity, even though employees used sarcasm and swearing.

• Car sales employee who complained about his employer serving cheap hot dogs and soda at a luxury car sales event was engaged in concerted activity because he expressed sentiment of group related to commission issues.

Concerted Activity?

• Restaurant employees who complained on Facebook about employer’s tax-withholding policy and co-workers who “liked” her posts were engaged in concerted activity.

• A newspaper employee who posted tweets critical of his employer was not engaged in protected activity because there was no evidence he discussed his concerns with his co-workers.

Concerted Activity?

• Bartender who complained on Facebook to a family member about his employer’s “sucky” tipping policy and called the customers “rednecks” was not engaged in concerted activity because no co-workers responded to the post or were involved.

• A retail store employee who made profane comments about her store manager were individual gripes, not concerted activity.

Proper Social Media Policy?

An employer violates the NLRA through the maintenance of any rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights.” 1) Cannot expressly restrict those

rights; 2) Cannot have effect of restricting

those rights.

Proper Social Media Policy?

“Employees are instructed to be sure that their posts are completely accurate and not misleading and that they do not reveal non-public information on any public site.” – Held, overbroad because it would reasonably

be interpreted to apply to discussions about or criticisms of the employer’s labor policies and treatment of employees.

Proper Social Media Policy

“When in doubt about whether the information you are considering sharing falls into a prohibited category, DO NOT POST. Check with HR or Legal to see if it is a good idea first.”

Held, unlawful because the NLRB has long held that a rule requiring employees to secure permission before engaging in concerted activity is unlawful.

Proper Social Media Policy?

• Provision in handbook that prohibited any post that would embarrass, harass or defame an employee was overbroad because it could reasonably lead employees to believe they could not discuss their complaints about working conditions on-line.

• Policy provision precluding employees from pressuring co-workers to connect or communicate on social media was lawful.

• Anti-bullying provision was enforceable.

Best Practices For Cities And Public Agencies

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ract

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• Develop clear, comprehensive

policies • Revise policies when new laws, court

decisions are issued or when new technologies emerge

• Obtain employee’s signed acknowledgement of receipt and understanding of policy and the limitation on their reasonable expectation of privacy

Best Practices

• Consider blocking access to social media websites from employer equipment

• Personal cell phone vs. Employer-owned cell phone

• Train employees

Best Practices

• Exercise good judgment in all written communications

• Avoid using personal devices and accounts for business purposes

• Be cautious about using private social media accounts for work-related issues

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Questions ???