Presentation by Verrill Dana on social media in the modern day workplace. Presented at Social Media Breakfast Maine.

1. SOCIAL MEDIA BREAKFAST MAINE:
HOW TO HANDLE SOCIAL MEDIA IN THE
MODERN WORKPLACE
May 18, 2012
Matthew A. Bahl
Verrill Dana, LLP
mbahl@verrilldana.com
www.hrlawupdate.com
May 18, 2012

2. What would you have done?
• Employee jokes on
Facebook page that
your company’s
average IQ would
increase if a bomb were
dropped on one your
corporate offices.
• Employee blogs about
his job and includes
company financial and
new product
information.

3. What would you have done?
• After an interview, your top applicant Tweets that he
thought the your company’s benefit package was
“weak sauce.”
• A large group of employees create a web-site and
post sexual and offensive comments about a
coworker. The web-site also contains numerous
pictures showing your employees drunk, using illicit
drugs, and “hooking up.”

4. What would you have done?
• Your client posts a
YouTube video of
your employee
criticizing the client.
• Employee posts a
YouTube video
criticizing your top
competitor.

5. What We’re Going To Cover
• LIFE CYCLE OF AN EMPLOYEE
– Pre-employment
• Using social media in the hiring process
– During employment
• Social media policies and enforcement
– Post-employment
• Non-compete/non-solicitation
• Confidentiality and trade secrets
• Practical Tips

6. Using Social Media In The Hiring Process:
The Legal Landscape
• FCRA
• SCA
• NLRA
• USERRA
• Title VII
• MHRA
• ADA
• GINA
• Off-Duty Conduct Laws
• New state privacy laws
• Negligent hiring

7. Why Use Social Media In The Hiring Process
• Bad hires can be
expensive.
• 45% of employers
surveyed by
CareerBuilder used
social media to research
job applicants.
• Of those surveyed 35%
decided not to hire
someone because of
online posting.

8. Practical Tips For Using Social Media In The
Hiring Process
• Tip 1: Have a social media hiring policy and follow it.
• Tip 2: Notify applicants, in writing, about your company’s use of social
media in the hiring process and give them a chance to respond to
negative information.
• Tip 3: Don’t have decision makers conduct social media searches
• Tip 4: Ensure employment decisions are based on lawful, verified
information.
• Tip 5: Follow best practices in identifying
legitimate, nondiscriminatory reasons for hiring decisions.

9. Social Media In The Workplace: The
Legal Landscape
• FMLA
• SCA
• NLRA
• USERRA
• Title VII
• MHRA
• MWPA
• ADA
• GINA
• FTC
• SEC
• Off-Duty Conduct Laws
• New state privacy laws
• Negligent retention

10. Social Media In The Workplace:
Employee Productivity
• Studies show that Facebook users get
lower grades in school AND in the
workplace.
• Likewise, social media proponents have
published studies that social media use
can INCREASE productivity.
• Choice for employers.

11. Social Media In The Workplace:
Employer’s Choice
• If you choose to allow social media use at
work, there should be guidance as to:
– Who – company clients, coworkers, vendors?
– What – what is confidential information?
– When – limitations?
– Why – how are company goals met through use of
social media? How does social media fit into your
business plan?
– How – importance of professionalism

12. Social Media In The Workplace:
Company Security
• Security concerns:
– Leaks
– Hackers
• SmartPhones
– Security features
– Walking away with
confidential
information

13. Social Media In The Workplace:
Protected Concerted Activity
• Section 7 of the NLRA
• NLRB has brought several petitions over company firing
of employees for Facebook posts. Important issues:
– Employee posting critical of company management. When is it
okay?
– Other employees join the online discussion and were likewise
critical of management. Is this important?
– Company policies prohibiting or limiting employees’ ability to
discuss the company online.
• Two “guidance memos” discussing what is and is not a
lawful policy.

14. Practical Tips: Social Media Policies
• Do you want to
police social media
use?
• Don’t over policy
your handbook.
• Avoid blanket non-
disparagement or
prohibitions in
social media
policies.

15. Social Media After The Workplace: The
Legal Landscape
• State tort and
defamation laws
• UTSA
• Contract Law
– Non-compete
– Non-solicitation

16. QUESTIONS