What You Don’t Know Can Hurt You

Meredith Sayre, JD Carl Smith Ball, LLP Karri Perez, PhD, SPHR GPHR

What Is Social Networking?   

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Definitions: Interaction between a group of people who share a common interest. The practice by which internet users build relationships and bookmark important sites with like minded people. Means of communicating and sharing information between two or more individuals in an online community. It’s a fusion of sociology and technology that transforms monologue into dialogue and transforms people from content readers into publishers.

Social Networking Applications 

Internet Sites  Facebook  MySpace  YouTube

 Twitter  LinkedIn  Wikipedia

 Flickr  Second Life

Social Networking Applications 

Facebook/MySpace  Allow users to create profiles and share personal information and photos

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Flickr  Allows public posting of picture albums

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Twitter  Allows for short messages to be sent from a author to “followers”

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Second Life  Almost like a computer game where users create a character and live

through the character in a digital world 

LinkedIn  Professional networking site

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YouTube  Allows posting of videos and vlogs

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Blogs  Allow for short articles from one author

Why Should You Care?

Because things like this exist…

How to get fired from Dominos Pizza - YouTube

The Situation Now Some companies have totally banned employees from social media.  Some companies have totally embraced it.  Some companies are on the fence and not sure what to do. 

Which one are you?

Corporate Presence on Social Networks Pros Increased exposure, traffic and popularity Can create and leverage a powerful marketing and public relations machine  Greater awareness of public’s perception of one’s products and services  

Cons Potential for issuing public statements that are impossible to retract/expunge  “Official” statements may not represent company’s position  Potential publicity headaches or undermining of brand  Employer can be held liable for the activities of its employees 

How Powerful Is Social Media?

If you want to attract and retain the “Best in Class” young professionals, engage your employees on social media!

Survey of 2,800 college students & recently employed grads, September 2011

Seriously?

80% said the Internet is as important to their lives as food, air & water!!

Social Media Policies

Intersection of Social Media and Employment Law 2 Major Concerns for Businesses 1) Business and Legal Risks from Employee Use of Social Media

2) Legal Risks of Firing or Disciplining Employees for Using Social Media

Employee Use of Social Media      

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Offending Customers/Clients Negative Publicity Defamation Intellectual Property Infringement Trade Secret Disclosure Criminal Assault Concerted Activity Fraud Disclosure of Private Customer/Client Info Non-Compete/Non-Solicitation Invasion of Privacy Torts Securities Law Claims Harassment/Intentional Infliction of Emotional Distress Tortious Interference with Existing or Prospective Contract

Unwanted Branding

Bath In Burger King Sink - YouTube

Defamation What is legal defamation? 

Varies from state-to-state

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Guam law provides that "(e)very person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations."

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"Libel" is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

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If you are posting about other people, be truthful

LinkedIn Issues 

Non-Compete/Non-Solicit  Recommandations  Direct Sollicitation  Stealing Clients

Security Violations 

Inappropriate insider trading  What is “material nonpublic” information? ○ Information is “material” if a reasonable investor would consider it important in making an investment decision. ○ Information is “nonpublic” if it has not been disseminated in a manner making it available to investors generally for at least two trading days.  Recipients of material nonpublic information

who receive such information improperly from insiders are “tippees.”  Insiders who provide material nonpublic information to tippees may be held responsible for the trading of their tippees. 

SEC might come calling.

Security Violations 

Whole Foods’ CEO anonymously posts damaging confidential information regarding company it was acquiring

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FTC filed a complaint and Whole Foods had to sell 13 stores as part of the settlement of claim

Federal Trade Commission 

The FTC recently updated guidelines on endorsements and testimonials. FTC imposes liability on endorsers and companies for failure to make required disclosures about “material connections.”

FTC Guidelines 

The FTC guidelines are specific to “new media.” Enforcement actions could be brought against a company whose employees comment on company products or services without disclosing employment relationship.

Potential Harassment Supervisors “friending” subordinates and subsequently sharing too much personal information  Facebook posts of an employee chronicling his dates with co-workers  “Poking”  Sharing inappropriate videos or pictures  Facebook stalking 

Firing Employees for Use of Social Media Off-Duty Conduct Laws  Retaliation  Whistleblowing  Discrimination  Concerted Activity  Invasion of Privacy  Stored Communications Act/Wiretap Act 

Off-Duty Conduct Laws  

Some states (IL, CA, NY, CO, ND) have enacted broad off-duty conduct laws Protections for:  Off-Duty Conduct  Off-Site Legal Activities

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Potential Causes of Action  Fired for Blogging  Fired for off-duty activity tweeted about

or posted on Facebook profile  Fired for pictures on Flickr account 

Statutory exceptions provide defenses

Off-Duty Conduct Examples 

Criminal Defense Attorney in Las Vegas fired for listing “breaking my foot off in a prosecutor’s ass” as one of his interests on Facebook

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Texas teacher fired for posting topless photos of herself on Flickr

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In England, prison officer fired for having several former and current inmates as Facebook friends

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Employee fired for posting on Facebook that her job was “boring”

Password Protection Laws California has recently adopted a password protection law. Law prohibits direct request for passwords and “shoulder surfing” from applicants and employees. Exception when employer reasonably believes access is relevant to investigation of misconduct or violation of law or regulations.  Maryland and Illinois have similar laws. 

Retaliation 

Blog posts, status updates, other comments that could be construed as complaints

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If complaints can be linked to protected activity (i.e., complaining regarding pay, discrimination) potential cause of action if employer fires or disciplines employee

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Public employers must also be conscious of 1983 retaliation, prohibiting retaliation for exercising constitutionally protected rights

Retaliation Examples 

Woman claimed she was retaliated against because she reported employee showing racially insensitive YouTube videos to other employees

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Woman claimed she was retaliated against when employer fired her after it discovered her in a YouTube video protesting the Iraq war

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Public school employees claimed retaliation for exercising 1st Amendment rights in blogging

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Teacher claimed retaliation for exercising 1st Amendment right to communicate with students over MySpace

Whistleblowing 

Some statutes protect employees from discipline or termination when employee reports violations of the statute (SOX is one example)

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Again, employee that posts blog, tweets, chronicles issue on video posted to YouTube could have cause of action if the communications can be construed as whistleblowing

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Oftentimes, these statutes require reporting to a government agency, thus, social media type postings may not protect an employee

Discrimination 

Probably the biggest claim here would be from employees who claim that employer discriminatorily enforces a social media policy

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Also, since many social media sites allow for disclosure of demographic information, it becomes harder for employers to claim they did not know of an employee’s protected characteristic (religion, national origin, disability)

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Claims could come from firing and failure to hire

Discrimination Examples 

Flight Attendant fired for posting inappropriate photos of her in a Delta plane in her uniform on her blog – claimed men were not fired for similar reasons

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Employee claimed he was fired after employer discovered that he was a practicing Wiccan on his MySpace page

Googling the Applicant 

Pros  Due diligence  Negligent hiring

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Cons  Protected class implications  False information  Invasion of privacy

Googling the Applicant Outsource the check  Use someone in-house who does not make the decision  Consider FCRA  Get a release  Don’t assume everything is true 

Friending Candidates  Co-Workers  Subordinates  Superiors  Clients 

The National Labor Relations Act 

The National Labor Relations Act applies to companies with two or more employees and engage in interstate commerce regardless of whether they are represented by a union. Employees have the right to engage in “protected concerted activity” (PCA) for their mutual aid and protection.

Protected Concerted Activity 

Employee’s internet postings could reflect an effort to unionize or relate to a dispute between the employer and employee over terms and conditions of employment

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Employee speech is not always protected if it is disloyal or disparaging

PCA Examples 

Employee sued under NLRA to overturn discipline when he used his website to criticize his employer and the union

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NLRB filed a complaint in a case where an employee was allegedly fired for posting negative comments about her supervisor on her Facebook page – complaint not only attacked the termination but also what the Region deemed an overly broad policy

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Court dismissed an employee’s claim that he was terminated for engaging in PCA when employer fired employee for posting on a newspaper’s online forum speaking out against recent layoffs and stating that the business was “tanking” – court found the speech lost its protection because it was disloyal and disparaging

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Office of the General Counsel recently approved of a social media policy that only prohibited disparagement of company’s products, services, executive leadership, employees, strategy, and business prospects

Invasion of Privacy In the termination setting, an employee could argue that an employer invaded his/her privacy in accessing social media posts and using that information to terminate the employee  These claims likely fail because it is difficult to credibly argue that the employee had an expectation of privacy in a post voluntarily communicated on the internet 

Stored Communications Act / Wiretap Act 

Most likely, the SCA and Wiretap Act do not protect employee usage of social media  Generally only protect information with reasonable expectation

of privacy  Wiretap Act only protects “interception” and viewing Facebook and MySpace profiles not likely to meet definition of interception  SCA only protects information in electronic storage – which could mean only information held for a limited time in transmission  Does not protect conduct authorized by a “user” of the service – likely that a “friend” is an authorized user 

However, employers could get into trouble by accessing sites that are protected

SCA/Wiretap Act Examples 

Employer liable for violation of SCA when a supervisor pressured two employees into giving him their passwords for MySpace so he could access a private, invitation only chat room for employees wishing to vent

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Employer not liable for accessing information posted on electronic bulletin board when website had no password protections or privacy settings

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Courts in New Jersey have held that employees maintain an expectation of privacy in personal password protected web based email even when viewed on an employer’s computer – could have SCA, Wiretap, and Invasion of Privacy implication

Employer Issues: More Things to Think About 

Employer Use of Social Media  Worker’s comp  Abuse of leave  Violating Policy

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Others?

Break

Regulating Social Media uses   

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Employers should consider an Internet Usage Policy that establishes rules for social media Preference is to have a stand alone policy that integrates other policies Important to make sure that employees receive and understand policy – perhaps a separate acknowledgement of the social media policy is appropriate Consistent enforcement is something to take into account – once policy is in place, steps must be taken to enforce it Inconsistent enforcement reduces the policy’s utility in combating employee claims

Social Media Policy 

Things to Consider  Setting out that there is no expectation of privacy on Company  

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owned/issued equipment Information and data transmitted on Company-owned/issued equipment may be monitored No personal usage of Company property (consider if this is desirable/achievable) Communications on Company-owned equipment are property of Company No access to Facebook, etc. on Company equipment (again, ask if this is feasible) Company logos/trademarks cannot be used without permission Official company blogs can only be used to add value to Company Requiring disclaimer if employee writes about Company products and/or services stating that views are personal and do not represent official views of Company Can only officially represent Company if authorized to do so

Social Media Policy 

More Things to Consider  Employee posts must be respectful to Company, other         

employees, customers, clients, and competitors Employee must comply with confidentiality and disclosure of proprietary data policies Blogging should not interfere with work commitments Consult manager if unsure if posts or activities are in compliance with policy Avoid postings that put Company in negative light Be mindful of potentially illegal conduct – invasion of privacy, securities laws, defamation Avoid posting information about Company’s future performance or worth Report violations to HR Set out discipline potential Consent to interception

Social Media Policy 

Most important is to incorporate other policies:                

Code of Ethics Electronic Communications Systems Personal and Company Property Usage Dealing with the Media Harassment Equal Employment Opportunity Discrimination Retaliation Violence-Free Workplace Diversity Information Security Intellectual Property Trade Secrets Non-Disclosure/Confidentiality Non-Compete/Non-Solicit No comment on legal matters

SUGGESTED SOCIAL MEDIA POLICY FOR EMPLOYERS TO USE Approved by the NLRB

Guidelines In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.  The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination. 

Know and Follow the Rules 

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be Respectful Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.  Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy. 

Be Honest and Accurate 

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post Only Appropriate and Respectful Content 

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Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications. Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy. Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate. Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social Media at Work 

Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use. Retaliation is prohibited [Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media Contacts 

Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them. For more information If you have questions or need further guidance, please contact your HR representative.

For this media policy, go to: www.socialmediaesq.com/2012/06/18/social-mediapolicy-for-employers-nlrb-says-this-one-works/

For a list and descriptions of 195 Corporate Social Media Policies, go to: http://socialmediagovernance.com/policies