Social media, staff policy and law legal

Social Media In the Workplace and Beyond

Alexander Nemiroff, Esq.
Jackson Lewis, LLP
1601 Cherry Street, Suite 1650
Philadelphia, Pennsylvania
267.319.7816
Alexander.Nemiroff@jacksonlewis.com

What is “Social Media”?
• MySpace • Blogs
• Facebook • Digg, Reddit, Technorati
• Friendster • YouTube
• LinkedIn • Unvarnished
• Twitter • Instant Messaging
• Skype • Texting

Social NOTworking?
• How many working hours are lost?

• 50% of Facebook users log on every day

• 22% visit social networking sites 5+
times/week

• Only 52% of employees say they don’t
use social networking sites during work
hours

• And that’s not counting time spent
texting, instant messaging, surfing,
making phone calls, etc. …

Copyright 2011 Jackson Lewis LLP

Employee Views on Social Media Use

• Survey says:

• 53% of employees say their social networking pages
are none of their employers’ business

• 74% say it’s easy to damage a company’s reputation
on social media

• 15% say that if their employer did something that
they didn’t agree with, they would comment about it
online


What Do Employers Do?

• 40% of business executives surveyed disagree that
what employees put on their social networking
pages is not the employer’s business

• 30% admit to informally monitoring social
networking sites


Key Legal Challenges for Employers

 Negligent hiring/supervision
 Discrimination/harassment/retaliation
 Disclosure of trade secrets or proprietary
information
 Reputational harm to employees
 Reputational harm to employers
 Privacy pitfalls
 Legal constraints on employee discipline

Copyright 2011Jackson Lewis LLP

Would You Hire Him as a Lifeguard?


Do You Have the Same Response?


Risk Factor:
Negligent Hiring/Supervision/Retention

An employer may be held liable for an employee’s
wrongful acts if the employer knew or had reason to
know of the risk the employment created

Doe v. XYC Corp., N.J. Super. 122 (2005)
• Employee was criminally charged with child
pornography using a workplace computer
• Court held employer had a duty to
investigate and respond


Risks for Employers
• Using the Web to Make Hiring Decisions
• Many employers and job recruiters check out potential
employees on the Web
 Using search engines such as Google or Yahoo and
internet sites such as
PeopleFinders.com, Local.Live.com or Zillow.com
• Some studies show more than half of employers use
some kind of screening on social networking sites


Information Found on Social Networking Sites

Hiring Decisions Based Upon
Social Networking Activity
Problem: A search may identify an applicant’s protected
characteristics such as age, race, sexual orientation,
marital status, arrests or other factors that should not
be considered in a hiring decision.

Solution: Have a non-decision maker conduct the
search and filter out protected information.
Alternatively, hire a third party to conduct the search
and filter out protected information.


Hiring Decisions Based Upon
Social Networking Activity
Guidelines for Employers on Internet Search of Applicants

If you are going to do these searches:

 Do them consistently; towards the end of the hiring
process

 Screen out protected information

 Verify information

 Document the search; and

 Determine how relevant the information is to the
job

Risk Factor: Discrimination, Harassment -
Employee Use of Social Media
• Electronic communications offer opportunities for
misuse
• Can be used as evidence to support a harassment or
discrimination claim

Blakely v. Continental Airlines, Inc., 164 N.J. 38
(2000)
• Alleged harassment via “Crew Member Forum”
• Company has duty to take effective measure to
stop the conduct once it knew or should have
known harassment was taking place

“Sexting” Concerns

 20% of teens and 33% of young
adults electronically sent nude
photographs of themselves
 39% of teens and 59% of young
adults sent sexually explicit text
messages

Source: National Campaign to Prevent Teen
and Unplanned Pregnancy, 2008 Survey


Risk Factor: Reputational Harm to Employees

 Defamation - plaintiff must prove defendant
published a false statement about plaintiff that
tends to harm plaintiff’s reputation
 Employer can be liable if the employee had
apparent authority to speak on its behalf –
Beware of personal references!!


Risk Factor: Reputational Harm to Employers

Employees posting videos and photographs
damaging to company’s image

Former employee slamming company’s system
with disparaging e-mails

Former employees “cyber-smearing” employer


Is this the Image You Want for Your Company?


How about this one?


Not Laughing Now


Risk Factor: Employee Discipline

 National Labor Relations Act
oEmployees who IM or blog
about their working conditions
or employers may be protected
under the NLRA
o Employees have a right to engage in
"concerted activity“ for the purpose of
collective bargaining or other mutual
aid or protection
o Applies to both union and non-union
employees

Legal Constraints on Disciplining Employees for Online
Activity

Unlawful Restrictions:

Statement that prohibits the sharing of information
concerning other employees, such as wages, hours and
terms and conditions of employment.

Lawful Restrictions:

o Prohibition on disclosing confidential company business
information and documents; Prohibition on disclosing
“confidential” employee information;

o Prohibition of conduct which is or has the effect of being
injurious, offensive, threatening, intimidating, coercing, or
interfering with the Company’s employees.

22

Legal Constraints on Employee Discipline:
NLRA
What is protected activity:

• Kiewitt Power Constructors Co., 355 NLRB No. 150
(8/27/10)
Held two employees complained to their supervisor regarding
the location of where they were required to take their breaks
and then told the supervisor the situation could “get ugly” and
supervisor had “better bring [his] boxing gloves” engaged in
protected concerted activity under the Act because the
statements were spontaneous and not outright threats.
• Plaza Auto Center, Inc. 355 NLRB No. 85 (8/16/10)

Held that a salesperson who shouted at his employer’s owner
that he was a “f…ing crook” and an “a..hole” during a meeting
with management to discuss pay and commissions, among
other things, was engaged in protected concerted activity at
the meeting and that his outburst was not so egregious so as
to lose the protection under the Act.

23

Other Outlets for the Disgruntled Employee

www.jobvent.com
www.hateboss.com
www.workrant.com
www.fthisjob.com
www.rantasaurus-rex.com


Risk Factor: Employee Discipline

 Expression of political opinions (e.g. New Jersey)
 Legal off-duty activities (e.g.
California, Colorado, Connecticut, New York)
 Wrongful termination in violation of public policy
(arrests, convictions, bankruptcy, workers’
compensation history)
 Whistleblowing (SOX, Wage & Hour)


Risk Factor: Federal Wiretap Act

 Prohibits “interception” of electronic
communications
 Most courts hold that acquisition of electronic
communications must occur
contemporaneously with transmission
 Is monitoring of Instant Messages
“interception”?


Risk Factor:
Federal Stored Communications Act
Prevents employers from using illicit or coercive means to
access employees’ private electronic communications
Pietrylo v. Hillstone Rest. Group, 29 I.E.R. Cases 1438 (D.N.J.
2009)
Jury verdict for employees under the Stored Communications
Act, 18 U.S.C. 2701(a)(1), affirmed by federal court where
managers accessed employee’s blog.
Employees of Houston’s restaurant maintained an invitation-only
chat room (the “Spec-Tater”) on MySpace for fellow employees to
“vent” about their work experiences. It became populated with
complaints about the restaurant, customers, and supervisors.
One employee told supervisors about the site and they asked for
her password.


Pure PowerBootCamp v. WarriorFitnessBootCamp
LLC (2nd Cir., 2011)

 Accessing Personal E-mails Can Violate Federal Stored
Communications Act Even With No Actual Damages
 Two employees left to start competing fitness facility.
 Pure Power learned through 546 e-mails from four
personal accounts belonging to the former employees (e.g.
Hotmail) that former employees had taken customer lists,
training and instruction materials, and solicited customers.
 How? The former employees had stored their usernames
and passwords on company’s computers.
 Employees countersued under SCA -- $1,000 per count


Employee Monitoring and Privacy Issues

• Key question: Did the employee have a
reasonable expectation of privacy in the electronic
communication?

• Ensure monitoring is:
• based on legitimate needs, and
• limited in scope to achieve those needs


It’s Amazing What Folks Put on the Internet
for Everyone to See


WHAT??



 Courts are more likely to rule for the employer if:
o Employer owns the computer and e-mail system
o Employee voluntarily uses an employer’s
network
o Employee has consented to be monitored
(usually based in written personnel policy)



 Currently unclear if an employee has a reasonable
expectation of privacy in blogs or IMs

 Courts have split on whether there is a reasonable
expectation of privacy in content maintained on
third-party servers (e.g., web-based e-mail
accounts)


Is There a Right to Privacy in Email, Texts, and
Communications on Employer Systems?
• In a unanimous decision, the U.S. Supreme Court held that
the City of Ontario’s review of transcripts of an employee’s
text messages sent and received on a City-issued pager
was a reasonable search under the Fourth
Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No.
08-1332 (June 17, 2010).
• The Court disposed of the case on narrow grounds,
preferring to avoid the risks of establishing "far-reaching
premises" before the role of technology in society and its
Fourth Amendment implications becomes clear.”
• Nevertheless, the Supreme Court outlined principles
instructive to all employers that allow employees to use
electronic communications devices, including cell phones,
i-Phones, and Blackberries.

Policy Guidance from Quon
All employers must be prepared with comprehensive
computer and electronic equipment usage
policies. The Court noted that these policies will help
shape an employee’s expectation of privacy. Further,
it is critical that practices and policies be consistent,
reflect current technologies, and be clearly
communicated.

Employers also should consider requiring employees
to acknowledge in writing that they received and
reviewed these and similar policies and procedures,
particularly as new technologies are introduced.


Methods to Minimize Risk
• Develop a written policy regarding access by HR
and hiring managers to applicant and employee
social networking sites

• Train HR and IT personnel responsible for
monitoring and using electronic information on:
• Avoiding improper access
• Screening out information that cannot be lawfully
considered in hiring and disciplinary decisions


• Prohibit access to private password social
networking sites without proper authorization
• Do not allow any third party to “friend” an
applicant to gain access to the applicant’s site
• Ensure employment decisions are made based on
lawful, verified information



• Consider restriction on professional references via
LinkedIn

• Consider blocking or limiting employee access to
social networking sites through company
computers


Drafting an Effective E-Mail
and Internet Use Policy

Key Elements of Electronic Communications Policies

 Consider company philosophy and business

 No expectation of privacy when using company
equipment

 Employees must abide by non-disclosure and
confidentiality policies and agreements



 Only individuals officially designated may speak on
behalf of the Company
 “Bloggers Beware” - Require a disclaimer:

“The views expressed in this
blog are my personal views and
opinions and do not necessarily
represent the views or opinions
of my employer.”



 Company policies governing corporate
logos, branding, and identity apply to all
electronic communications
 Employees may not make defamatory comments
when discussing the employer, co-
workers, products, services and/or competitors
 Based on the FTC’s endorsement
guidelines, require employees to obtain prior
approval before referring to company products
and services and to disclose the nature of the
employment relationship



• Do not prohibit employees from discussing terms
and conditions of employment

• If allowed at work, time spent social networking,
blogging or texting should not interfere with job
duties

• Remind employees expected to comport
themselves professionally both on and off duty


Terms of an Effective E-Mail and Internet Use Policy

• Employer should REVIEW AND REVISE policies regularly

– Need to put date on each revision
• Employer should ACTUALLY
MONITOR use of the system and
devices to maintain and protect
policy’s integrity
– Guard against violations and
inconsistent use

Copyright 2011 Jackson Lewis LLP 46

Employer Overreaching

• The Town of Bozeman, Montana, required job
applicants to provide passwords to email (Google,
Yahoo!) and social networking sites (MySpace,
Facebook) accounts.

• 98% of people polled believed this policy to be an
invasion of privacy

• On June 22, 2009, the town rescinded the policy


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