1. © 2011 Haynes and Boone, LLP
Presented by:
Janet H. Ayyad
Social Media and Employment Law

2. © 2011 Haynes and Boone, LLP
What is Social Media?
• Participation – users
are also contributors
• Community – users
build connections
• Interaction –
communication flows
in many directions

3. © 2011 Haynes and Boone, LLP
Examples of Social Media
• Facebook/MySpace
– Allow users to create profiles and share personal information and photos
• Flickr
– Allows public posting of picture albums
• Twitter
– Allows for short messages to be sent from the author to “followers”
• 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
• YouTube
– Allows posting of videos and vlogs
• Blogs
– Allow for short articles from one author

4. © 2011 Haynes and Boone, LLP
Why Should Employers Care
About Social Media?
• Facebook – 750 million users
– 250 million mobile users
• Twitter – 175 million users
• LinkedIn – 120 million users
• YouTube – 2 billion videos watched daily.

5. © 2011 Haynes and Boone, LLP
Social Media and Employment Law
• Ignoring social media
is not a viable option
for employers.
• Social media presents
legal risks before,
during and after
employment.

6. © 2011 Haynes and Boone, LLP
Social Media
• 3 Major Concerns for
Businesses
– (1) Pre-Employment Risks – Using
Social Media in the Hiring Process
– (2) Business and Legal Risks from
Employee Use of Social Media
– (3) Post-Employment Risks –
Terminating Employees in Connection
with Social Media Use and Aftermath

7. © 2011 Haynes and Boone, LLP
Pre-Employment Screening and
Social Media
• Employers increasingly base hiring decisions
on applicants’ social media profiles.
• Screening applicants’ profiles may reveal
membership in a protected class.
• Employers may face discriminatory hiring
allegations.
• A neutral employee who does not make
employment decisions should screen social
media.

8. © 2011 Haynes and Boone, LLP
Employee Use of Social Media
• Inappropriate Disclosures
• Negative Branding
• Defamation Liability
• Securities Law Violations
• Harassment
• FTC Endorsement
Violations

9. © 2011 Haynes and Boone, LLP
Inappropriate Disclosures
• Trade Secrets
• Disparaging
Company or
Clients
• Miscellaneous
Inappropriate
Posts

10. © 2011 Haynes and Boone, LLP
Unwanted Branding
• YouTube video surfaced of employees in a
pizza establishment stuffing cheese in their
noses - before placing the cheese on the pizza

11. © 2011 Haynes and Boone, LLP
Defamation
• What is legal defamation?
– Varies from state-to-state
– In Texas
• publication of a statement
• the statement was defamatory
• the “speaker” was at least negligent with respect
to the truth or falsity of the statement
• If you are posting about other people,
be truthful

12. © 2011 Haynes and Boone, LLP
Defamation
• In-house attorney at a large corporations set up
anonymous “Troll Tracker” blog to complain about
patent trolling and the attorneys involved. The day
after he revealed himself to the public, the attorney
and the company were sued for defamation

13. © 2011 Haynes and Boone, LLP
Securities Law Violations
• CEO of major grocer anonymously posts
damaging confidential information regarding
company it was acquiring
• SEC investigation followed
• FTC filed a complaint and company had to sell
13 stores as part of the settlement of claim

14. © 2011 Haynes and Boone, LLP
Online 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

15. © 2011 Haynes and Boone, LLP
FTC Endorsement Guidelines
• Updated in 2009 to include
social media activities.
• Employees commenting
on company products
must disclose their
affiliation.
• Employer could be liable
for employee’s failure to
disclose.

16. © 2011 Haynes and Boone, LLP
Disciplining Employees
• Off-Duty Conduct Laws
• Retaliation
• Whistleblowing
• Discrimination
• Concerted Activity
• Invasion of Privacy
• Stored Communications Act/Wiretap Act

17. © 2011 Haynes and Boone, LLP
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
• 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

18. © 2011 Haynes and Boone, LLP
Off-Duty Conduct Examples
• Criminal Defense Attorney in Las Vegas fired for listing
“breaking my foot off in a prosecutor’s a!#” as one of his
interests on Facebook
• Texas teacher fired for posting topless photos of herself
on Flickr
• In England, prison officer fired for having several former
and current inmates as Facebook friends
• Employee fired for posting on Facebook that her job
was “boring”

19. © 2011 Haynes and Boone, LLP
Retaliation
• Blog posts, status updates, other
comments that could be construed as
complaints
• If complaints can be linked to protected
activity (i.e., complaining regarding pay,
discrimination) potential cause of action
if employer fires or disciplines employee
• Public employers must also be
conscious of 1983 retaliation, prohibiting
retaliation for exercising constitutionally
protected rights

20. © 2011 Haynes and Boone, LLP
Retaliation Examples
• Woman claimed she was retaliated against because she
reported employee showing racially insensitive YouTube
videos to other employees
• Woman claimed she was retaliated against when employer
fired her after it discovered her in a YouTube video
protesting the Iraq war
• Public school employees claimed retaliation for exercising
1st Amendment rights in blogging
• Teacher claimed retaliation for exercising 1st Amendment
right to communicate with students over MySpace

21. © 2011 Haynes and Boone, LLP
Whistleblowing
• Some statutes protect employees from discipline
or termination when employee reports violations of
the statute (SOX is one example)
• 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
• Oftentimes, these statutes require reporting to a
government agency, thus, social media type
postings may not protect an employee

22. © 2011 Haynes and Boone, LLP
Discrimination
• Probably the biggest claim here would be from
employees who claim that employer
discriminatorily enforces a social media policy
• 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)
• Claims could come from firing and failure to hire

23. © 2011 Haynes and Boone, LLP
Discrimination Examples
• Flight Attendant fired for posting inappropriate
photos of her in a plane in her uniform on her
blog – claimed men were not fired for similar
reasons
• Employee claimed he was fired after employer
discovered that he was a practicing Wiccan on
his MySpace page

24. © 2011 Haynes and Boone, LLP
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
• Disloyal or disparaging employee speech is not
always protected.

25. © 2011 Haynes and Boone, LLP
Protected Concerted Activity
• Employee sued under RLA to overturn discipline when he used
his website to criticize his employer and the union
• 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
• In 2009, Board’s 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

26. © 2011 Haynes and Boone, LLP
Recent NLRB Social Media Actions
• Am. Med. Response of Connecticut: Complaint filed after an employee was allegedly fired
for posting negative comments about her supervisor on Facebook – complaint not only
attacked the termination but also what the Region deemed an overly broad policy
– Part of case settlement required employer to revise its social media policy.
• Knauz BMW: NLRB issued a complaint against Knauz BMW, a Chicago area BMW
dealership, alleging unlawful termination of an employee for posting photos and comments on
Facebook that were critical of the dealership for serving only hot dogs and bottled water at an
event promoting a new BMW model. The Salesman and his co-workers were fearful their
commissions could suffer a a result. Other employees had access to the Facebook page.
• Hispanics United of Buffalo: One employee posted a Facebook comment criticizing her
employer and coworkers. Coworkers responded on Facebook defending their job
performance. The employees involved were terminated.
– Employer claims that employees were terminated for harassment, but Board claims that
discussing work conditions is protected.
– Case illustrates tension between Board’s social media policy and employer’s obligation to
protect employees from harassment.
– The Board ALJ recently issued an opinion finding that the Facebook posts were
protected.

27. © 2011 Haynes and Boone, LLP
The NLRB and Social Media
• Implement a defensible social media policy: Avoid broad limits on employees’
rights to discuss the terms and conditions of their employment, including wages and
disciplinary actions. Limit any broad language through examples, definitions, or
disclaimers carving out exceptions for activity protected by Section 7.
• Do not prohibit employees from depicting or identifying the company online.
The Board has found these prohibitions unlawful. Rather, consider requiring
employees to identify their affiliations and disclaim any authority to speak for the
Company.
• Evaluate social media problems under the appropriate labor law precedent. The
Act only protects social media activity if it qualifies as “concerted” and has not
otherwise lost the Act’s protection. An initial determination regarding an online
comment’s protected status is essential before making a disciplinary decision.

28. © 2011 Haynes and Boone, LLP
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

29. © 2011 Haynes and Boone, LLP
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

30. © 2011 Haynes and Boone, LLP
SCA/Wiretap 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 (New Jersey)
• Employer not liable for accessing information posted on
electronic bulletin board when website had no password
protections or privacy settings (11th Cir.)
• 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 implications (New Jersey)

31. © 2011 Haynes and Boone, LLP
Post-Employment Use of Social
Media
• Non-Compete/Non-Solicit
– Recommendations
– Direct Solicitation
– Stealing Clients
• Terminations
– Discrimination Claims
– Just Cause Terminations

32. © 2011 Haynes and Boone, LLP
Regulating Social Media Usage
• Consider adopting 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

33. © 2011 Haynes and Boone, LLP
Social Media Policy
• Things to Consider
– Setting out that there is no expectation of privacy on Company
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

34. © 2011 Haynes and Boone, LLP
• 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

35. © 2011 Haynes and Boone, LLP
• 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
Social Media Policy

36. © 2011 Haynes and Boone, LLP
Thank you for your time and attention!
Janet H. Ayyad
214.651.5296
Janet.Ayyad@haynesboone.com

37. © 2011 Haynes and Boone, LLP
www.haynesboone.com