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

1LexisNexis 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

Media Era
• 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

Media Era
• 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)

Media Era
• 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

Media Era
• 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
ccalsyn@crowell.com
Robyn Diaz, St. Jude Children’s Research Hospital
robyn.diaz@stjude.org
Jessica Hodkinson, Avaya, Inc.
jhodkinson@avaya.com
Terri Stewart, Fisher & Phillips LLP
tstewart@laborlawyers.com

When Employees Tweet on Twitter®: Protecting Your Brand in Social Media

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