1. SOCIAL MEDIA IN
CALIFORNIA:
How Far You Can Legally Go
To Police W k ’ Online
T P li Workers’ O li
Conduct On Facebook And
Other Social Networking
Sites
Jason A. Weiss, Esq.
Monica M. Quinn, Esq.

2.  The legal risks associated with peering into applicants’ and
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employees’ online activities, and best practices for minimizing
potential trouble spots
 Best practices for using Facebook MySpace LinkedIn and
Facebook, MySpace, LinkedIn,
other sites to conduct “background checks” in California
 When you may discipline an employee or refuse to hire
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someone based on the information gleaned from social
networking sites
 Why
Wh you must have a social media policy and the essential
th i l di li d th ti l
language to include
 What frontline managers and supervisors need to know
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about policing social networking sites so they don’t legally
misstep under state and federal law
 How your organization may use and benefit from your
H i i d b fi f
employees’ use of social media
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3. The Increased Use of Social
Media and Social Networking
 In February 2009 – social networking sites eclipsed personal
e-mail in global reach.
 Facebook reports that 50% of its 350 million users access
the site at least once a day.
 If Facebook were a country, it would be the third largest in
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the world, approaching 600 million users.
 Twitter users post 90 million “tweets” per day.
 Social media will replace email as the primary vehicle for
interpersonal communications for 20 percent of business
users by 2014.
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4. The Legal Risks Associated With Peering Into
Applicants and Employees’ Online Activities
Applicants’ Employees Activities,
and Best Practices for Minimizing Potential
Trouble Spots
 Right to Privacy – California employees are protected by a
right to privacy.
 Public vs. Private – The protection may vary.
 Fair Credit Reporting Act/Investigative Consumer
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Reporting Act
 Discrimination Claims
 Pre-employment inquiries – Plaintiff’s counsel may
request statistical evidence of the applicant pool.
 Adverse employment actions
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5. The Legal Risks Associated With Peering Into
Applicants and Employees’ Online Activities
Applicants’ Employees Activities,
and Best Practices for Minimizing Potential
Trouble Spots (cont’d.)
 Labor Code 96(k) – Prohibits employers from taking
employment actions against employees because of lawful
off-duty conduct
 Labor Code 232 and 232.5 – Allows employees to discuss
their wages/working conditions and prevents the employer
from disciplining or discharging an employee for doing so
 California Labor Code Sections 1101-1102 – Prohibits an
employer from taking adverse action against an employee
because of his or her political activities or influencing an
employee’s political activities
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6. Best Practices for Using Facebook, Myspace,
Facebook, Myspace,
LinkedIn, and Other Sites to Conduct
LinkedIn
“Background Checks”
 FCRA/ICRA – B f
Before conducting any form of background
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check on an applicant, make sure to obtain the applicant’s
permission to do so.
 Discrimination Claims
 Do so in a consistent manner
 Have a neutral party conduct the search
 C id searching social media sites only after the
Consider hi i l di i l f h
initial in-person interview
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7. Best Practices for Using Facebook, Myspace,
Facebook, Myspace,
LinkedIn, and Other Sites to Conduct
LinkedIn
“Background Checks” (cont’d.)
 Discrimination Cl
D Claims
 Identify the criteria used
 Discuss your findings with the applicant
 Retain a record of pages viewed
 Do not lie about your identity to gain information
 Consult with employment counsel
 Privacy Claims
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8. When You May Discipline an Employee or Refuse to
Hire Someone Based on The Information Gleaned
From Social Networking Sites
 Refusal to Hire – Is this discrimination?
 Discipline
 Social Media Abuses – Employers must protect employees
from h
f harassment.
 National Labor Relations Act – An employer’s right to take
action against the employee’s conduct related to certain
working conditions may be limited.
• NLRB Claims Termination Due to Facebook
Comments is Illegal
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• Hospital Technician Fired Over Facebook Post
 Health Insurance Portability and Accountability Act
 BBreach of Confidentiality A
h f C fid i li Agreement
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9. When You May Discipline an Employee or Refuse to
Hire Someone Based on The Information Gleaned
From Social Networking Sites (cont’d.)
 Discipline
 Federal Trade Commission Guidelines – December 2009
guideline creating liability for companies whose employees
endorse or give testimonials about the employer’s
products on social media sites without disclosure.
 Defamation of Co-Workers and Others
 Trade Libel of Employers and Competitors
 Lanham Act - liability for “false advertising
false advertising”
 Sarbanes-Oxley Act, OSHA & California Labor Code
Sections 1102.5-1102.8 - protect whistleblowing
employees
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10. Off Duty Conduct –
Can
C an Employee B Disciplined?
E l Be Di i li d?
 Blogging
 Private-sector employees do not have a constitutional right to
free speech.
 Under what situations can an employer discipline an employee
for writing details about his or her employment in a blog?
What if your employee is revealing trade secret or
confidential information otherwise unknown to the public?
Keep in mind also the California Labor Code provisions with
respect to discussing wages, the terms and conditions of
employment, working conditions, politics and whistleblowing.
l ki di i li i d hi l bl i
 Drug Testing
 Moonlighting
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11. Off Duty Conduct –
Can an Employee Be Disciplined? (cont’d.)
 Arrests and Convictions –How does the crime affects the
employee’s ability to do his or her job? It is possible this
employee could claim he or she was a victim of disparate impact
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discrimination?
 Engaging in Political Protests
 Fraternization with Subordinates – Such policies may be illegal.
 Smoking – California Labor Code 6404.5 requires employers to
ban smoking in the workplace.
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12. The Essential Language to Include in Your
Social M di P li
S i l Media Policy
 Decide where your Company stands on issues first.
 Social Media Policy
 Reasonable Personal Use – IBM’s Approach – Don’t forget about
your day job
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 All other company policies must be followed
 Don’t overdo it
 Blogging
 Not be done during working hours or using company resources.
 Not permitted to disclose confidential company information
 Treat others respectfully
 Confidential Information
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13. The Essential Language to Include in Your
Social Media Policy
 Right to Privacy
 Eliminate privacy expectations – Quon v. City of Ontario
 Inform employees that the company will be regularly monitoring any
company equipment
 Such items are the property of the employer
 You can access them with no additional prior warning
 Computer Fraud and Abuse Act
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 Stored Communications Act
 Communications Privacy Act
 For All Policies
 Ensure they are enforced
 Be consistent
 Exercise common sense, good judgment, responsibility, and staying
E i dj d t ibilit d t i
within legal parameters
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14. What Frontline Managers and Supervisors Need to
Know About Policing Social Networking Sites so They
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Don’t Legally Misstep
 Supervisor/Subordinate Relationships
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 Steps to Take When You Receive Off-Duty Conduct
Information
 Verify the information to the extent possible;
information,
 If the off-duty conduct has no bearing on the employee’s job, don’t
discuss the situation with the employee;
 Determine if you are permitted to act on the information;
 Ensure you keep the information confidential on a need-to-know
basis;
 Be careful about what you say to customers and other employees;
 Weigh your options: keep, suspend or terminate the employee
depending on the severity of the infraction and strength of the
ev e ce; a
evidence; and
 Consult legal counsel where appropriate.
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15. What Frontline Managers and Supervisors Need to
Know About Policing Social Networking Sites so They
Don’t Legally Misstep (cont’d.)
 Should We Discipline The Employee For This Conduct?
 Is the conduct lawful?
 Is the conduct protected?
 Is this conduct protected by any of the California Labor Code
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provisions?
 Is there a relationship between the conduct and the job?
 Does the conduct cast your business in a negative light?
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 If disciplinary action is taken, ensure that similar discipline is imposed
on all similar situations.
 Consult legal counsel before taking any disciplinary action.
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 Miscellaneous
 Can references be provided?
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16. How Businesses/Employers May
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Use/Benefit From Employees’ Use
of Social Media
 Enhance employee productivity
 Confirm discrimination or harassment
 Reveal dissatisfaction with the workplace
 Consider an approval process if social media will be used
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17. Jason Weiss is a partner in the firm's Orange County office where he
practices employment law and business litigation. Jason specializes in
representing employers from multinational corporations to start-
employers,
ups, on a wide variety of employment and labor relations matters,
ranging from wrongful termination and unfair competition lawsuits
to preventive counseling and advice.
Jason s
Jason's employment litigation experience includes handling cases at
the trial and appellate levels of both state and federal courts and in
arbitration. He also represents management in wage/hour matters
before the U.S. Department of Labor and the California Labor
Commissioner, discrimination claims filed with the U.S. Equal
Employment Opportunity Commission and the California
Department of Fair Employment and Housing, Sarbanes-Oxley Act
Jason A. Weiss, Esq. whistleblower claims, unemployment insurance claims and Section
Partner 132a discrimination petitions filed with the Workers' Compensation
Allen Matkins Leck G bl
All M k L k Gamble Appeals Board
Board.
Mallory & Natsis LLP Jason's practice includes the drafting and implementation of
1900 Main Street, 5th Fl employee handbooks, workplace policies and employment contracts.
Irvine, CA 92614-7321
92614- He has also guided employers through reduction-in-force programs,
(
(949) 553-1313(main)
) 553- ( ) including compliance with state and federal laws such as the Worker
(949) 851-5426 (direct)
851- Adjustment and Retraining Notification Act ("WARN"). Jason
(949) 553-8354(fax)
553- regularly conducts in-house training seminars and workshops for
jweiss@allenmatkins.com clients, and provides day-to-day counseling and advice.
www.allenmatkins.com
Jason's practice extends t th business law arena, where he h
J ' ti t d to the b i l h h has
experience and expertise in a range of business issues including
contract disputes, trade secrets, interference claims, unfair
competition, and intellectual property disputes.
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18. Monica M. Quinn is a Partner in the firm’s Los Angeles office,
where she practices in the Labor and Employment Law
Department. She is experienced in both litigation and transaction
matters. Monica handles all employment disputes including
wrongful termination, harassment, discrimination, retaliation,
constructive discharge, wage/hour and other employment-related
matters at all levels of state and federal court. She also defends
employers before administrative agencies, such as the Equal
Employment Opportunity Commission, the Department of Fair
Employment and H i and the W k ’ Compensation
E l d Housing d h Workers’ C i
Appeals Board, and in arbitration proceedings.
Monica M. Quinn Esq. Her employment law counseling practice includes providing
Partner advice on employee handbooks and policies, training, wage and
Allen Matkins Leck G bl
All M k L k Gamble hour issues, employee discipline, trade secret issues, drug and
Mallory & Natsis LLP alcohol testing, privacy, leave issues, harassment and discrimination
515 South Figueroa Street, 9th Fl laws, and all other areas of personnel administration.
Los Angeles, CA 90071-3301
90071-
(
(213) 622-5555 (main)
) 622- ( ) She is the co-author of a book chapter entitled "Social
(213) 955-5615 (direct)
955- Networking and Off-Duty Conduct."
(213) 620-8816 (fax)
620-
mquinn@allenmatkins.com
www.allenmatkins.com
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