1. 1 SOCIAL MEDIA IN CALIFORNIA: HOW FAR YOU CAN LEGALLY GO
TO POLICE WORKERS’ ONLINE CONDUCT ON FACEBOOK
2 AND OTHER SOCIAL-NETWORKING SITES
3 I. Introduction.
4 A. Names
5 B. The Increased Use of Social Media and Social Networking
6 1. In February 2009 – social networking sites eclipsed personal e-mail in
7 global reach.
8 2. Facebook reports that 50% of its 350 million users access the site at least
9 once a day.
10 3. If Facebook were a country, it would be the third largest in the world,
11 approaching 600 million users.
12 4. Twitter users post 90 million “tweets” per day.
13 5. Social media will replace email as the primary vehicle for interpersonal
14 communications for 20 percent of business users by 2014.
15 II. The Legal Risks Associated With Peering Into Applicants’ and Employees’ Online
16 Activities, and Best Practices for Minimizing Potential Trouble Spots.
17 A. Right to Privacy
18 1. Constitution or Statute – California employees are protected by a right of
19 privacy in the California Constitution and under California common law. A
20 balancing test applies to determine if a legitimate interest is present that is
21 strong enough to warrant invading an individual’s right to privacy.
22 2. Public vs. Private – As to information available on social networking sites,
23 the individual’s right to privacy may be different depending on whether or
24 not the profile is public or private. Arguably, an individual would have a
25 greater expectation of privacy to the extent he/she took steps to limit access
26 to the information on his/her profile. In addition, as will be discussed later,
27 the employer will have more leeway to investigate the employee depending
28 on the expectation of privacy created by the employer.
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2. 1 B. Fair Credit Reporting Act/Investigative Consumer Reporting Act
2 The Fair Credit Reporting Act (FCRA) and Investigative Consumer Reporting
3 Agencies Act (ICRA) require an employer to obtain the applicant’s consent before
4 conducting a background check. Also, a California Consumer Credit Reporting
5 Agencies Act for credit checks.
6 C. Discrimination Claims
7 1. Pre-employment Inquiries: General rule is that you can’t use information
8 that would be inappropriate to make a hiring decision obtained via social
9 media if it would be inappropriate to utilize such information if it was
10 obtained by other means. May be difficult to prove in litigation that the
11 information was viewed yet not used. Plaintiff’s counsel may request
12 statistical evidence of the applicant pool.
13 2. Adverse Employment Actions: Colleagues may make comments on social
14 networking sites that could be harassing or discriminatory or considered
15 evidence of harassing or discriminatory conduct.
16 D. Labor Code 96(k) – Prohibits employers from taking employment actions against
17 employees because of lawful off-duty conduct.
18 E. Labor Code 232 and 232.5 – Allows employees to discuss their wages/working
19 conditions and prevents the employer from disciplining or discharging an employee
20 for doing so.
21 F. California Labor Code Sections 1101-1102 – Prohibits an employer from taking
22 adverse action against an employee because of his or her political activities or
23 influencing an employee’s political activities.
24 III. Best Practices for Using Facebook, Myspace, LinkedIn, and Other Sites to Conduct
25 “Background Checks.”
26 A. FCRA/ICRA – Before conducting any form of background check on an applicant
27 (including accessing a social networking site), safest to obtain the applicant’s
28 permission to do so. This will reduce your exposure to liability for invasion of
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3. 1 privacy claims based on unauthorized background checks. However, unlikely that
2 if you do an investigation internally on social networking sites that this would lead
3 to liability under the ICRA. Would not apply to an internal investigation under the
4 FCRA.
5 B. Discrimination Claims
6 1. If you do use social networking sites to check on applicants, do so in a
7 consistent manner. Do not use it only for members of a protected class.
8 2. Have a neutral party conduct the search, filtering out the protected class
9 information and only passing on the lawful information.
10 3. Consider searching social media sites only after the initial in-person
11 interview. This gives the employer more information with which to make
12 its decision and thus, it is easier for the employer to explain why it did/did
13 not select a particular employee.
14 4. Identify the criteria used.
15 5. Discuss your findings with the applicant.
16 6. Retain a record of pages viewed.
17 7. Do not lie about your identity to gain information.
18 8. Consult with employment counsel if you intend to make a decision based on
19 information on a social networking site to ensure that you can adequately
20 document a legitimate non-discriminatory reason.
21 C. Privacy Claims. Will depend on whether or not notice was provided, what type of
22 privacy protections the individual has on the site and what the interest is in
23 obtaining the information.
24 IV. When You May Discipline an Employee or Refuse to Hire Someone Based on The
25 Information Gleaned From Social-Networking Sites.
26 A. Refusal to Hire – Is this Discrimination?
27 B. Discipline.
28
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4. 1 C. Social Media Abuses – Employers must protect employees from harassment.
2 Employers are not required to monitor all private communications but they have a
3 duty to stop co-worker harassment if they know of or have reason to know that
4 harassment is taking place. An employer can be strictly liable for a supervisor’s
5 harassment. The line between work and non-work is getting blurred. Claims of
6 tech-based harassment area on the rise because of the proliferation of handheld
7 communication devices. There is also an increased risk that comments, such as
8 those on social networking sites, could be broadcast to a larger group of numerous
9 colleagues or friends, increasing the possibility of severe and pervasive harassment.
10 D. National Labor Relations Act – An employer’s right to take action against the
11 employee’s conduct related to certain working conditions - whether or not the
12 conduct occurs off-duty - may be limited. For example, under the National Labor
13 Relations Act (NLRA), you cannot monitor or conduct any surveillance of
14 employee union activities, including off-the-job meetings or gatherings. This same
15 rule also applies to any concerted activity (that is, activity workers undertake
16 together, rather than individually) even if no union is involved, as long as
17 employees discuss their work conditions or terms of employment. In addition,
18 certain states - such as California - permit employees to discuss working
19 conditions, such as wages paid, without fear of repercussion. L.C. 232.5.
20 1. NLRB Claims Termination Due to Facebook Comments is Illegal
21 a. Facts: American Medical Response of Connecticut, a large
22 ambulance service provider, terminated an employee after she
23 criticized her boss on Facebook. A supervisor asked the employee
24 to prepare a report addressing a customer complaint about her work,
25 but denied her request for representation from her union during an
26 investigatory interview. Later that day, the employee posted a
27 “negative remark” about her boss on her private Facebook page
28 using her home computer, which drew supportive comments from
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5. 1 her co-workers and additional comments from the employee. The
2 Company suspended and later fired the employee, claiming she
3 violated Company policy. The Company claims the employee’s
4 Facebook comments were not the only reason for her termination.
5 b. Disputed Policies – Prohibition against disparaging remarks about
6 the Company or Company supervisors; forbidding employees from
7 depicting the Company in any way on the Internet without the
8 Company’s permission. Federal law protects all employees
9 regardless of union membership to discuss the terms and conditions
10 of employment.
11 c. Action: NLRB investigated the circumstances and claimed that the
12 Company “maintained and enforced an overly broad blogging and
13 Internet posting policy.” It lodged a complaint against the
14 Company. A hearing is scheduled for January 2011.
15 d. Caveat – Watch out for overbroad policies. December 2009 opinion
16 of NLRB General Counsel suggested similar policies were
17 acceptable because they could not reasonably be viewed as
18 prohibiting concerted activities. This suggests NLRB will closely
19 scrutinize policies that potentially limit an employee’s right to
20 discuss terms and condition of employment.
21 2. Hospital Technician Fired Over Facebook Post – A medical technician in
22 Michigan was fired in July for posting on Facebook that she had come “face
23 to face” with a “cop killer”. She had worked on a police officer and the
24 alleged gunman who shot him. The employer terminated her for violating
25 the Health Insurance Portability and Accountability Act’s privacy rules.
26 The employee, who was not a union employee, but was covered by the
27 grievance process, grieved the termination and claimed that she did not
28
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6. 1 mention any identifiable details in her post. The grievance process is not
2 yet finalized.
3 E. Health Insurance Portability and Accountability Act – One of the cases discussed
4 later involves an employee who worked for a hospital who was terminated after
5 posting information about a patient that the hospital contended violated the
6 patient’s rights under HIPAA.
7 F. Breach of Confidentiality Agreement – Employers may discipline employees that
8 are disclosing confidential business information on social networking sites.
9 G. Federal Trade Commission Guidelines – December 2009 guideline creating
10 liability for companies whose employees endorse or give testimonials about the
11 employer’s products on social media sites without disclosure. An employee who
12 posts favorable comments about his/her employer’s products, without disclosing
13 that he/she works for the company, may violate these guidelines.
14 H. Defamation of Co-Workers and Others.
15 I. Trade Libel of Employers and Competitors – intentionally and falsely disparaging
16 the quality of a business. This is a tort in California.
17 J. Lanham Act – Addresses trademark issues and creates liability for “false
18 advertising.”
19 K. Sarbanes-Oxley Act, OSHA & California Labor Code Sections 1102.5-1102.8 –
20 Protect whistleblowing employees. Sarbanes-Oxley Act enacted on July 30, 2002,
21 which set new or enhanced standards for all U.S. public company boards,
22 management and public accounting firms after the wake of scandals in the financial
23 sector.
24 V. Off Duty Conduct Can an Employee Be Disciplined for This?
25 A. Blogging
26 1. Private-sector employees do not have a constitutional right to free speech.
27 One of the more high profile blogging cases involved a Delta Air Lines
28
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7. 1 flight attendant who was suspended after posting provocative poses of
2 herself in her Delta uniform along with her blog.
3 2. Under what situations can an employer discipline an employee for writing
4 details about his or her employment in a blog? What if your employee is
5 revealing trade secret or confidential information otherwise unknown to the
6 public? You probably can take action. To further bolster your ability to
7 terminate in such a situation and prevent future litigation, ensure all
8 employees sign a confidentiality agreement that prohibits disseminating
9 company information in a blog. Keep in mind the NLRB case, though, and
10 the NLRA’s protection of the right of all employees to engage in “concerted
11 activity” including the right to discuss the terms and conditions of their
12 employment. Keep in mind also the California Labor Code provisions with
13 respect to discussing wages, the terms and conditions of employment,
14 working conditions, politics and whistleblowing.
15 B. Drug Testing – If you use drug testing, whether before or during employment,
16 confirm with legal counsel that such testing is permissible in your state.
17 C. Moonlighting – It is not illegal to have more than one full-time job, but have a rule
18 prohibiting employees from having another job that creates a conflict of interest,
19 such as working for a competitor.
20 D. Arrests and Convictions – One of the first questions the employer should ask is
21 how the crime affects the employee’s ability to do his or her job. A bank teller
22 convicted of embezzlement is an easy call. A bank teller who is arrested for
23 driving under the influence is not. You can take action against an employee who is
24 arrested, but it is possible this employee could claim he or she was a victim of
25 disparate impact discrimination as certain studies show that minorities are more
26 likely to be arrested than are nonminorities.
27 E. Engaging in Political Protests – California’s Labor Code Section 1101 and 1102
28 prohibit an employer from taking adverse action against an employee because of
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8. 1 his or her political activities or influencing an employee’s political activies. Of
2 course, if the employee took time off to participate in a demonstration, such time
3 could count as an absence, provided it is counted under an attendance policy that
4 the employer consistently imposes on all employees.
5 F. Fraternization with Subordinates – Such policies may be illegal to the extent they
6 seek to regulate an employee’s behavior outside work unless they directly pertain
7 to avoiding certain conflicts of interest in the workplace - such as relationships
8 between supervisors and subordinates.
9 G. Smoking – Some employers, contending that individuals who smoke have higher
10 health insurance claims, have tried to set rules banning the hiring of smokers in
11 their workplaces. Keep in mind that while smoking is neither a protected class nor
12 a disability, this is not permissible in most states based on various “lifestyle
13 discrimination” statutes. California Labor Code 6404.5 requires employers to ban
14 smoking in the workplace. In addition, refusing to hire individuals based on
15 various health-related issues may create claims for disability discrimination. One
16 solution is to offer a wellness program that gives employees incentives, such as
17 lower premiums, for making healthy lifestyle choices.
18 VI. The Essential Language to Include in Your Social-Media Policy.
19 A. Decide where your Company stands on issues first.
20 B. Social Media Policy
21 1. Reasonable Personal Use – Unlikely that a complete ban will work. Best to
22 tell people to use good judgment and that bad judgment can reflect poorly
23 upon you and endanger your job. Be professional.
24 2. All other company policies, such as those that prohibit
25 discrimination/harassment, disclosing confidential information, use of
26 copyrighted material, must be followed.
27 C. Blogging
28
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9. 1 1. Blogging should not be done during working hours or using company
2 resources.
3 2. Employees are not permitted to disclose confidential company information
4 in their blog.
5 3. Employees may not use the company logo or any other company
6 copyrighted material on their blog.
7 4. Employees must state on their blog that the opinions expressed about work-
8 related matters are their own and not the company’s.
9 5. Employees should be reminded to treat others respectfully. Even though the
10 blog is not work-related, they should not make disparaging remarks about
11 colleagues.
12 6. Remind employees that inappropriate blogging activities could result in
13 disciplinary action, up to and including termination.
14 D. Right to Privacy – Written policies contained in employee handbooks should
15 suffice to eliminate privacy expectations employees may have in the use of
16 company equipment, including computers, voice mail and email. Policies should
17 also inform employees that the company will be regularly monitoring any company
18 equipment. Ensure your employee handbook informs employees that despite the
19 use of passwords to access voice mail or e-mail, such items are the property of the
20 employer. Emphasize that employees should have no expectation of privacy in
21 these items and that you can access them with no additional prior warning.
22 1. Eliminate privacy expectations – Quon v. City of Ontario.
23 a. United States Supreme Court case concerning the right to privacy,
24 specifically the extent to which it applies to electronic
25 communications in a government workplace. It was brought in
26 federal district court by an Ontario, California, police officer who
27 had been disciplined by his superiors for sending personal,
28 sometimes sexually explicit, text messages with pagers they had
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10. 1 been provided by the department for use on duty. He, and the people
2 he had exchanged messages with, argued that the city had violated
3 their Fourth Amendment rights by reviewing a transcript of the texts
4 provided by the pager company, since the city's investigation had
5 not been prompted by allegations of misconduct. Additionally, they
6 said, a senior officer had said the pager messages themselves would
7 not be audited if the officers reimbursed the city for fees it incurred
8 when they exceeded a monthly character limit. The Court ruled
9 unanimously that the review of the transcript was reasonable, as all
10 text messages sent by the officers while off-duty were redacted, and
11 thus it was legitimately related to the officers' work performance and
12 their compliance with department policy.
13 2. Inform employees that the company will be regularly monitoring any
14 company equipment.
15 3. Such items are the property of the employer.
16 4. You can access them with no additional prior warning.
17 5. Computer Fraud and Abuse Act - intended to reduce cracking of computer
18 systems and to address federal computer-related offenses. The Act (codified
19 as 18 U.S.C. § 1030) governs cases with a compelling federal interest,
20 where computers of the federal government or certain financial institutions
21 are involved, where the crime itself is interstate in nature, or where
22 computers are used in interstate and foreign commerce.
23 6. Stored Communications Act - It is not a stand-alone law but forms part of
24 the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§
25 2701 to 2712. The SCA addresses voluntary and compelled disclosure of
26 "stored wire and electronic communications and transactional records" held
27 by third-party internet service providers (ISPs).
28
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11. 1 7. Electronic Communications Privacy Act - was enacted by the United States
2 Congress to extend government restrictions on wire taps from telephone
3 calls to include transmissions of electronic data by computer. Specifically,
4 ECPA was an amendment to Title III of the Omnibus Crime Control and
5 Safe Streets Act of 1968 (the Wiretap Statute), which was primarily
6 designed to prevent unauthorized government access to private electronic
7 communications. The ECPA also added new provisions prohibiting access
8 to stored electronic communications, i.e., the Stored Communications
9 Act,18 U.S.C. §§ 2701-12. The ECPA also included so-called pen/trap
10 provisions that permit the tracing of telephone communications. §§ 3121-
11 27.
12 E. Confidential Information
13 1. Advise employees that they are not permitted to disclose confidential
14 information on social networking sites.
15 2. If client information is confidential, advise employees that identifying
16 clients or contacting clients on social networking sites could be a breach of
17 the employee’s confidentiality obligations.
18 3. If an employee poses confidential information on a social networking site,
19 take immediate steps such as sending a cease and desist letter, contacting
20 the website or contacting the new employer to immediately address the
21 violation.
22 F. For All Policies
23 1. Ensure they are enforced.
24 2. Be consistent.
25 3. Exercise common sense, good judgment, responsibility, and staying within
26 legal parameters.
27 VII. What Frontline Managers and Supervisors Need to Know About Policing Social-
28 Networking Sites so They Don’t Legally Misstep.
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12. 1 A. Supervisor/Subordinate Relationships
2 1. Issue if subordinate is pressured to accept friend requests or if employee
3 posts information regarding a medical condition.
4 B. Steps to Take When You Receive Off-Duty Conduct Information
5 1. Verify the information, to the extent possible;
6 2. If the off-duty conduct has no bearing on the employee’s job, don’t discuss
7 the situation with the employee;
8 3. Determine if you are permitted to act on the information;
9 4. Ensure you keep the information confidential on a need-to-know basis;
10 5. Be careful about what you say to customers and other employees;
11 6. Weigh your options: keep, suspend or terminate the employee depending
12 on the severity of the infraction and strength of the evidence; and
13 7. Consult legal counsel where appropriate.
14 C. Should We Discipline The Employee For This Conduct?
15 1. Is the conduct lawful? The employer has far less freedom if the employee
16 is engaged in lawful conduct.
17 2. Is the conduct protected? For example, in California, employees are
18 protected from discrimination based on gender identity. Thus, no action
19 could be taken on the basis an employee was cross-dressing outside the
20 workplace.
21 3. Is this conduct protected by any of the California Labor Code provisions?
22 4. Is there a relationship between the conduct and the job?
23 5. Does the conduct cast your business in a negative light?
24 6. If disciplinary action is taken, ensure that similar discipline is imposed on
25 all similar situations. For example, if you can lawfully terminate an
26 employee who is having an extramarital affair, do not terminate all women
27 while not firing men.
28 7. Consult legal counsel before taking any disciplinary action.
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13. 1 D. Miscellaneous
2 1. Can references be provided?
3 2. There is no guarantee the information is accurate. It is possible for a person
4 to create a fake profile of another individual.
5 3. Just as the old saying goes, “you can’t believe everything you read,” you
6 can’t believe everything you see. Just because an applicant has a picture of
7 him/herself doing a shot of liquor with a group of friends does not mean he
8 or she has a drinking problem or will be a terrible employee. Such profiles
9 are clearly created for a social, and not professional, purpose.
10 4. It is likely that if you look at a person’s profile, you will uncover a lot of
11 personal information. Some of this information will serve no employment-
12 related purpose or will provide information regarding an applicant or
13 employee that would be better left unknown. For example, MySpace allows
14 individuals to list their sexual orientation. If a person claims that he/she
15 was not hired on the basis of his/her sexual orientation, it is far easier to
16 defend such a claim if you can say you had no idea what the individual’s
17 sexual orientation was.
18 5. Many of the sites have user agreements. Using the sites simply to check up
19 on applicants or employees may violate the terms of agreement of the site if
20 you are not truthful when creating your profile when you register as a user
21 of the site.
22 VIII. How Businesses/Employers May Use/Benefit From Employees’ Use Of Social Media.
23 A. Can enhance employee productivity with business-related social networking that is
24 easy and cheap.
25 B. Keep in mind that employees may reveal information in a blog that could be
26 helpful to the employer for several reasons. An employee may volunteer
27 information about his or her feelings about another employee which would confirm
28 discrimination or harassment. If you uncover this information while reading an
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14. 1 employee’s blog, you should investigate. Employees also may reveal reasons for
2 dissatisfaction with the workplace, in which case the employer could attempt to
3 address such concerns to improve employee morale. Such postings could also
4 constitute a protected complaint, and, thus, cannot be the basis of an adverse
5 employment action.
6 C. Consider an approval process if social media will be used.
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