when employees tweet on twitter®: protecting your brand in social media

When Employees Tweet: Protecting Your Brand in Social Media

A Complimentary LexisNexis® Webinar August 22, 2013

CHRISTOPHER CALSYN, CROWELL & MORING LLP

ROBYN DIAZ, ST. JUDE CHILDREN’S RESEARCH HOSPITAL JESSICA HODKINSON, AVAYA, INC.

TERRI STEWART, FISHER & PHILLIPS LLP

1 LexisNexis Presents: When Employees Tweet: Protecting Your Brand in Social Media – August 21, 2013

About the Speakers

Chris Calsyn is a Counsel in the Labor & Employment group of Crowell & Moring LLP in Washington, DC. Chris regularly provides clients with litigation and counseling services in all facets of labor and employment law. With respect to social media, Chris advises employers on developing, revising, and implementing social media policies, and defends employers against claims by current or former employees involving social media issues.


About the Speakers

Robyn Diaz is Interim Chief Legal Officer at St. Jude Children’s Research Hospital in Memphis, TN. In this role, Robyn oversees the legal affairs, technology transfer, and government relations departments, manages outside counsel relationships, and advises on employment law, biomedical ethics, medical staff affairs, and general operational, regulatory and transactional issues.

Before joining St. Jude, Robyn was a member of the in-house legal team at MedStar Health, a healthcare system with a network of ten hospitals in the Washington, D.C. region. Robyn served as an Adjunct Instructor with the Georgetown University School of Nursing and Health Studies, where she taught courses on health law and served as an academic preceptor to students enrolled in Georgetown University’s Program in Health Care Management and Policy. Prior to her time with MedStar Health, Robyn was an attorney in the health care practice group at Crowell & Moring, LLP. Robyn has also worked in health care policy and consulting in Washington, DC.

Robyn has written and presented on a wide variety of health law issues, including access to care, human subject research protections, and conflicts of interest in medicine. She received her J.D. from Georgetown University Law Center and her B.A. from Brandeis University, and earned a Certificate in Executive Leadership for Healthcare Professionals from Cornell University. She is admitted to practice law in the District of Columbia, New York and Tennessee. Robyn is chair of the Memphis Bar Association Health Law Section and vice chair of the American Bar Association Health eSource editorial board.


About the Speakers

Jessica Hodkinson is Legal Director, Labor, Employment and Litigation at Avaya Inc. Jessica has been with Avaya since February 2011 and is responsible for managing general commercial and employment litigation including labor matters for various business units at Avaya. In her role, Jessica provides day to day counseling to Business Leaders, Human Resources, Labor Relations, Recruiting and Corporate Security with respect to all labor and employment matters including but not limited to compensation and benefits, HR policies (including Social Media), reductions in force, labor relations, internal investigations, wage and hour, independent contractors, background checks, and general compliance with all labor and employment laws in the United States.

Prior to joining Avaya, Jessica has held various in-house and law firm positions. Jessica is a graduate of Brooklyn Law School and SUNY Buffalo.


About the Speakers

Terri Stewart is an attorney in the Atlanta office of Fisher & Phillips LLP, a national labor and employment firm. She represents management in all areas of labor and employment law in state and federal courts as well as before state and federal agencies. Her practice focuses on the defense of employment related lawsuits in trial and appellate courts, encompassing a variety of issues, including claims arising under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and related state claims such as trade secret infringement, restrictive covenants, breach of contract and tort actions. Terri also frequently advises employers on reductions in force, drafts employment agreements, personnel policies, separation agreements and releases, and conducts on-site training on topics such as employment law compliance and avoidance of harassment claims.

Terri was listed in the 2011, 2012 and 2013 editions of Georgia Super Lawyers - Rising Stars. She also recently received the top “40 under 40” Award by the Atlanta Business Chronicle. The award honors the top 40 business people in Atlanta under the age of 40. Terri is a recent graduate of this year’s L.E.A.D. Atlanta Class.


Recent Statistics on Social Media Use by Employees

• 72 % of workers spend time during each workday on social networks

• 32 % of employers have social networking policy

• 42 % of supervisors connected through social media to subordinate

• 66 % of supervisors who are “active social networkers” (“ASNs”) say posts by subordinates affect the way they think about subordinate

• 79 % of social networkers consider how their employer would react to a work-related post

• 64 % consider how their employer would react to personal information posted on a personal site

• 72 % of ASNs observed misconduct in workplace – only 56 % of non-ASNs

• 56% of ASNs claimed they were retaliated against – only 18% of non-ASNs

Source: Ethics Resource Center – National Business Ethics Survey of Social Networkers: New Risks and Opportunities at Work (2013)


Laws Implicated by Employee Social Media Use

• National Labor Relations Act

• State social media password laws

• State privacy laws

• Federal and state anti-discrimination/harassment laws

• Stored Communications Act

• GINA, ADA, FMLA, HIPAA

• Copyright infringement, trademark and advertising laws

• Securities laws – Regulation FD


Recent NLRB Developments and Impact on Employer Social Media Policies and Practices

• New Board Members

• Turnover in the General Counsel’s office

• Effect of Noel Canning / New Vista Nursing

• Recent Decisions – Bettie Page (Board)

– New York Party Shuttle LLC (Board)

– World Color Corp. (ALJ)

– UPMC (ALJ)

– Skinsmart Dermatology (GC)

– Giant Foods LLC (GC)


Employee Social Media Related Conduct Protected by the NLRA

• Polling co-workers on Facebook regarding whether employees were helping clients enough

• Posting that one’s supervisor is a “d*ck” and a “scumbag” when he doesn’t allow you to have a union rep available while the employee is preparing an incident report – Important that other employees provided supportive comments, and

the employee then complained more about the supervisor in response

• “Liking” the status of a former employee’s complaint about the employer’s error with respect to tax withholdings in employee pay – Another employee in the same case also engaged in protected activity

when she claimed she was owed money and stated one of the employer’s owners was “such an as*hole”


Employee Social Media Related Conduct not Protected by the NLRA

• Newspaper reporter’s offensive tweets about his crime beat including: “You stay homicidal, Tucson. See Star Net for the bloody deets.”

• Bartender complaining on Facebook that he hadn’t had a raise in 5 years, that he was doing the waitresses’ work without tips, and calling customers rednecks and hoping they choke on glass as they drive home drunk – Key that no co-workers responded to posts and he did not discuss them

with any co-worker

• Making fun of mentally disabled patients at employer’s residential treatment facility on Facebook

• Posting a picture of yourself flipping off the Tomb of the Unknown Solider at Arlington National Cemetery during a work trip


Guidance from NLRB Social Media Conduct Cases

• The “social media conduct” cases demonstrate: – Context matters greatly

NLRB more likely to find a violation if the conduct at issue follows on earlier live complaints or discussions of wages, terms, or conditions

• Responsive conduct, or lack thereof, by co-workers to complainant’s social media based activity is potentially determinative

• Employees have a lot of leeway to be offensive in social media posts


Dos and Don’ts for Social Media Policies

Dos for Social Media Policies – Ensure that any prohibitions on employee social media behavior are as

narrowly drawn as possible.

– Include provisions that require employees who are posting about work-related issues or company products or services to include a disclaimer. FTC Guidelines and Regulation FD

– Require any employees using social media on behalf of the company to sign a separate written agreement specifying that the account(s), content and any list of friends, followers or contacts developed using the account(s) are the sole property of the company.

– Enlist knowledgeable counsel to review the facts related to any proposed discipline based on an employee’s social media use.

– Retain knowledgeable counsel to analyze any proposed implementation or revision of your social media–related policies or practices.


Dos and Don’ts for Social Media Policies

Don’ts for Social Media Policies • Do not use vague terms like “confidential” or “disparage” without providing

explicit examples of unprotected behavior to qualify those terms.

• Do not include blanket prohibitions on defaming or otherwise damaging the reputation of co-workers, clients or the company.

• Do not include blanket prohibitions on using the company’s logo or similar branding materials in employee social media posts.

• Do not include blanket prohibitions on posting photographs or videos of the employer’s business in employee social media posts.

• Do not prohibit employees from posting information about their wages, hours worked, or who their employer is.

• Do not forbid employees from using social media to contact the traditional media (such as newspapers, television stations, etc.).

• Open question about whether to include a “savings clause”


Use of Social Media and Internet in Hiring and Promotion Decisions

• Recruitment

• Use of social media and internet by hiring managers

• Legality and fairness

• Risks of use

• Promotions

• What to do when social media research provides information of interest (e.g., work habits, violence, threats)


Risks of Social Media Screening of Job Applicants/Employees

Marital Status

Age

Parental Status?

Gender & Race

Political Views

National Origin

Education

Employment

Status


Supervisor/Subordinate Social Media Relationships

• Potential benefits – Inclusion and camaraderie

– Heads up on potential departure / ability to keep tabs on future employment

• Potential risks – Protected status: knowledge of EEO information may be seen as basis

for adverse employment action (even when it is not)

– Evidence of bias, pretext, or retaliation

– Another vehicle for harassment by supervisors/co-workers

– Legal complaint: duty to investigate

– Endorsements (e.g., LinkedIn, Facebook, etc.) Evidence in wrongful termination lawsuits

Business issues and credibility

Conflicting internal company memoranda and evaluations


Best Practices for Regulating Supervisor/Subordinate Social Media Relationships

• Recommendations – Consider training/guidelines/restrictions on “friending” subordinates

or others over whom institutional authority

Rule of thumb: don’t reveal anything you wouldn’t say or post in the break room

Stress importance of privacy controls

– Train supervisors about what to do if/when they learn of discipline worthy offense by subordinate via social media

– Train supervisors to not pressure employees to provide the supervisor with access to personal social media sites


Best Practices for Regulating Supervisor/Subordinate Social Media Relationships

• Recommendations – Train supervisors to issue spot if they are going to be allowed to

“friend” subordinates Harassment / threats

Concerted activity

Whistleblowing

Retaliation

Medical issues

Breaches of confidentiality

– Train staff that they are not required to “friend” supervisors or co-workers

– Train staff to report any problems/issues to HR/legal Make sure they understand this includes any social media, email, or

texting behavior they believe violates company policies on harassment, discrimination, bullying, disparagement, and retaliation


Protecting Your Brand from Employees in the Social Media Era

• Defining ownership and control of employer social media accounts is paramount – Written agreements with employees using social media on

behalf of the company Ensure company has redundancy and access to accounts in case of

quick departure by employee

• Confidentiality /non-disclosure /non-solicitation agreements – Ensure that they include social media disclosures /

solicitations in their prohibitions



• Provide training on social media policy and procedures – Copyright/trademark v. NLRA protections

• Obtain protections in severance/release agreements – Cooperation and non-disparagement clauses

– Staggering of severance payments

• Consider monitoring employees after they leave through social media



• Employer-owned social media/networking sites – Goal is often to build camaraderie, facilitate the sharing of

ideas, and increase productivity and efficiency

– Potential risks abound Another tool in the harasser’s tool box

Forum for disparaging posts by disgruntled employees – some of which are likely protected by NLRA, whistleblower laws, etc.

May provide evidence of discrimination/retaliation by unsophisticated supervisor or co-worker

– Best practices Implement clear policies and training about use and abuse that do

not violate employee protections

Monitor where possible for signs of abuse

Consult with HR/legal prior to taking any action against employees for comments made through employer-owned social media


Protecting Your Brand from Outsiders in the Social Media Era

• Acquire and register usernames, etc. for brands where possible – Although often costly, can help protect the brand’s image

from copyright/trademark infringement by both intentional and unintentional violators

– May save legal costs down the road • Use social media tracking software to track and

analyze what outsiders are saying about your brand – May also be useful in tracking what employees are saying

about your products (good and bad)



• Dealing with bad press / defamatory speech – Importance of rationally assessing the situation before

acting Do you care about the likely audience for the bad press /

defamation?

Is it truly affecting your business?

Is your response only going to make it worse?

– “Shot across the bow” / cease and desist letter? Consider potential backlash from that approach in social media

environment

– Positive marketing campaign?

– Litigation? Defamation – difficultly of separating fact from opinion



• Protecting copyrights/trademarks – Intersection with NLRA

– “Shot across the bow” / cease and desist letter? Consider potential backlash from that approach in social media

environment – treat it like a press release

“Catch more flies with honey” – Jack Daniels example

– Report violation of “terms of use” to social media site provider (e.g., Facebook, Twitter, etc.) and seek resolution of issue through provider? Research a provider’s “terms of use” prior to using the provider to

market your brand as the terms may not fit your needs and/or the provider may not act as proactively to protect your brand as you would like

Understand that direct contact with infringer is likely a more effective route


Social Media as Evidence for Discovery/Trial

• Treasure trove of information – for both sides

• Offensive discovery – Understand the technology Which sites are most likely going to have relevant information to

the particular claims at issue?

– Initial searching and capture before serving discovery

– Importance of targeted discovery requests Courts preventing social media fishing expeditions

– Importance of sending preservation letter explicitly referencing social media

– Methods for obtaining social media evidence in discovery

– Strategies for getting social media posts into evidence at trial


Social Media as Evidence for Discovery/Trial

• Defensive discovery – Employer must preserve and produce relevant employer-

owned social media posts

– Employer must instruct relevant employees to preserve and produce relevant social media posts from personal accounts

– Employer must instruct relevant supervisors to not discuss the litigation via social media and should track compliance


Question and Answer Session

Christopher P. Calsyn, Crowell & Moring, LLP [email protected]

Robyn Diaz, St. Jude Children’s Research Hospital [email protected]

Jessica Hodkinson, Avaya, Inc. [email protected]

Terri Stewart, Fisher & Phillips LLP [email protected]

mailto:[email protected]


