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4.legal.asp.social media excellent

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  • 1. © 2011 Haynes and Boone, LLPPresented by:Janet H. AyyadSocial Media and Employment Law
  • 2. © 2011 Haynes and Boone, LLPWhat is Social Media?• Participation – usersare also contributors• Community – usersbuild connections• Interaction –communication flowsin many directions
  • 3. © 2011 Haynes and Boone, LLPExamples 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 throughthe 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, LLPWhy Should Employers CareAbout 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, LLPSocial Media and Employment Law• Ignoring social mediais not a viable optionfor employers.• Social media presentslegal risks before,during and afteremployment.
  • 6. © 2011 Haynes and Boone, LLPSocial Media• 3 Major Concerns forBusinesses– (1) Pre-Employment Risks – UsingSocial Media in the Hiring Process– (2) Business and Legal Risks fromEmployee Use of Social Media– (3) Post-Employment Risks –Terminating Employees in Connectionwith Social Media Use and Aftermath
  • 7. © 2011 Haynes and Boone, LLPPre-Employment Screening andSocial Media• Employers increasingly base hiring decisionson applicants’ social media profiles.• Screening applicants’ profiles may revealmembership in a protected class.• Employers may face discriminatory hiringallegations.• A neutral employee who does not makeemployment decisions should screen socialmedia.
  • 8. © 2011 Haynes and Boone, LLPEmployee Use of Social Media• Inappropriate Disclosures• Negative Branding• Defamation Liability• Securities Law Violations• Harassment• FTC EndorsementViolations
  • 9. © 2011 Haynes and Boone, LLPInappropriate Disclosures• Trade Secrets• DisparagingCompany orClients• MiscellaneousInappropriatePosts
  • 10. © 2011 Haynes and Boone, LLPUnwanted Branding• YouTube video surfaced of employees in apizza establishment stuffing cheese in theirnoses - before placing the cheese on the pizza
  • 11. © 2011 Haynes and Boone, LLPDefamation• 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 respectto the truth or falsity of the statement• If you are posting about other people,be truthful
  • 12. © 2011 Haynes and Boone, LLPDefamation• In-house attorney at a large corporations set upanonymous “Troll Tracker” blog to complain aboutpatent trolling and the attorneys involved. The dayafter he revealed himself to the public, the attorneyand the company were sued for defamation
  • 13. © 2011 Haynes and Boone, LLPSecurities Law Violations• CEO of major grocer anonymously postsdamaging confidential information regardingcompany it was acquiring• SEC investigation followed• FTC filed a complaint and company had to sell13 stores as part of the settlement of claim
  • 14. © 2011 Haynes and Boone, LLPOnline Harassment• Supervisors “friending” subordinatesand subsequently sharing too muchpersonal information• Facebook posts of an employeechronicling his dates with co-workers• “Poking”• Sharing inappropriate videos orpictures• Facebook stalking
  • 15. © 2011 Haynes and Boone, LLPFTC Endorsement Guidelines• Updated in 2009 to includesocial media activities.• Employees commentingon company productsmust disclose theiraffiliation.• Employer could be liablefor employee’s failure todisclose.
  • 16. © 2011 Haynes and Boone, LLPDisciplining Employees• Off-Duty Conduct Laws• Retaliation• Whistleblowing• Discrimination• Concerted Activity• Invasion of Privacy• Stored Communications Act/Wiretap Act
  • 17. © 2011 Haynes and Boone, LLPOff-Duty Conduct Laws• Some states (IL, CA, NY, CO, ND) have enactedbroad 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 aboutor posted on Facebook profile– Fired for pictures on Flickr account• Statutory exceptions provide defenses
  • 18. © 2011 Haynes and Boone, LLPOff-Duty Conduct Examples• Criminal Defense Attorney in Las Vegas fired for listing“breaking my foot off in a prosecutor’s a!#” as one of hisinterests on Facebook• Texas teacher fired for posting topless photos of herselfon Flickr• In England, prison officer fired for having several formerand current inmates as Facebook friends• Employee fired for posting on Facebook that her jobwas “boring”
  • 19. © 2011 Haynes and Boone, LLPRetaliation• Blog posts, status updates, othercomments that could be construed ascomplaints• If complaints can be linked to protectedactivity (i.e., complaining regarding pay,discrimination) potential cause of actionif employer fires or disciplines employee• Public employers must also beconscious of 1983 retaliation, prohibitingretaliation for exercising constitutionallyprotected rights
  • 20. © 2011 Haynes and Boone, LLPRetaliation Examples• Woman claimed she was retaliated against because shereported employee showing racially insensitive YouTubevideos to other employees• Woman claimed she was retaliated against when employerfired her after it discovered her in a YouTube videoprotesting the Iraq war• Public school employees claimed retaliation for exercising1st Amendment rights in blogging• Teacher claimed retaliation for exercising 1st Amendmentright to communicate with students over MySpace
  • 21. © 2011 Haynes and Boone, LLPWhistleblowing• Some statutes protect employees from disciplineor termination when employee reports violations ofthe statute (SOX is one example)• Again, employee that posts blog, tweets,chronicles issue on video posted to YouTubecould have cause of action if the communicationscan be construed as whistleblowing• Oftentimes, these statutes require reporting to agovernment agency, thus, social media typepostings may not protect an employee
  • 22. © 2011 Haynes and Boone, LLPDiscrimination• Probably the biggest claim here would be fromemployees who claim that employerdiscriminatorily enforces a social media policy• Also, since many social media sites allow fordisclosure of demographic information, itbecomes harder for employers to claim they didnot know of an employee’s protectedcharacteristic (religion, national origin, disability)• Claims could come from firing and failure to hire
  • 23. © 2011 Haynes and Boone, LLPDiscrimination Examples• Flight Attendant fired for posting inappropriatephotos of her in a plane in her uniform on herblog – claimed men were not fired for similarreasons• Employee claimed he was fired after employerdiscovered that he was a practicing Wiccan onhis MySpace page
  • 24. © 2011 Haynes and Boone, LLPProtected Concerted Activity• Employee’s internet postings could reflect aneffort to unionize or relate to a dispute betweenthe employer and employee over terms andconditions of employment• Disloyal or disparaging employee speech is notalways protected.
  • 25. © 2011 Haynes and Boone, LLPProtected Concerted Activity• Employee sued under RLA to overturn discipline when he usedhis website to criticize his employer and the union• Court dismissed an employee’s claim that he was terminated forengaging in PCA when employer fired employee for posting on anewspaper’s online forum speaking out against recent layoffsand stating that the business was “tanking” – court found thespeech lost its protection because it was disloyal and disparaging• In 2009, Board’s Office of the General Counsel recentlyapproved of a social media policy that only prohibiteddisparagement of company’s products, services, executiveleadership, employees, strategy, and business prospects
  • 26. © 2011 Haynes and Boone, LLPRecent NLRB Social Media Actions• Am. Med. Response of Connecticut: Complaint filed after an employee was allegedly firedfor posting negative comments about her supervisor on Facebook – complaint not onlyattacked 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 BMWdealership, alleging unlawful termination of an employee for posting photos and comments onFacebook that were critical of the dealership for serving only hot dogs and bottled water at anevent promoting a new BMW model. The Salesman and his co-workers were fearful theircommissions could suffer a a result. Other employees had access to the Facebook page.• Hispanics United of Buffalo: One employee posted a Facebook comment criticizing heremployer and coworkers. Coworkers responded on Facebook defending their jobperformance. The employees involved were terminated.– Employer claims that employees were terminated for harassment, but Board claims thatdiscussing work conditions is protected.– Case illustrates tension between Board’s social media policy and employer’s obligation toprotect employees from harassment.– The Board ALJ recently issued an opinion finding that the Facebook posts wereprotected.
  • 27. © 2011 Haynes and Boone, LLPThe 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 anddisciplinary actions. Limit any broad language through examples, definitions, ordisclaimers 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 requiringemployees to identify their affiliations and disclaim any authority to speak for theCompany.• Evaluate social media problems under the appropriate labor law precedent. TheAct only protects social media activity if it qualifies as “concerted” and has nototherwise lost the Act’s protection. An initial determination regarding an onlinecomment’s protected status is essential before making a disciplinary decision.
  • 28. © 2011 Haynes and Boone, LLPInvasion of Privacy• In the termination setting, an employee couldargue that an employer invaded his/her privacyin accessing social media posts and using thatinformation to terminate the employee• These claims likely fail because it is difficult tocredibly argue that the employee had anexpectation of privacy in a post voluntarilycommunicated on the internet
  • 29. © 2011 Haynes and Boone, LLPStored Communications Act/Wiretap Act• Most likely, the SCA and Wiretap Act do not protect employeeusage of social media– Generally only protect information with reasonable expectationof privacy– Wiretap Act only protects “interception” and viewing Facebookand MySpace profiles not likely to meet definition of interception– SCA only protects information in electronic storage – whichcould mean only information held for a limited time intransmission– 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 thatare protected
  • 30. © 2011 Haynes and Boone, LLPSCA/Wiretap Examples• Employer liable for violation of SCA when a supervisorpressured two employees into giving him their passwords forMySpace so he could access a private, invitation only chatroom for employees wishing to vent (New Jersey)• Employer not liable for accessing information posted onelectronic bulletin board when website had no passwordprotections or privacy settings (11th Cir.)• Employees maintain an expectation of privacy in personalpassword protected web based email even when viewed onan employer’s computer – could have SCA, Wiretap, andInvasion of Privacy implications (New Jersey)
  • 31. © 2011 Haynes and Boone, LLPPost-Employment Use of SocialMedia• Non-Compete/Non-Solicit– Recommendations– Direct Solicitation– Stealing Clients• Terminations– Discrimination Claims– Just Cause Terminations
  • 32. © 2011 Haynes and Boone, LLPRegulating Social Media Usage• Consider adopting Internet Usage Policythat establishes rules for social media• Preference is to have a stand alone policythat integrates other policies• Important to make sure that employeesreceive and understand policy – perhaps aseparate acknowledgement of the socialmedia policy is appropriate• Consistent enforcement is something totake into account – once policy is in place,steps must be taken to enforce it• Inconsistent enforcement reduces thepolicy’s utility in combating employeeclaims
  • 33. © 2011 Haynes and Boone, LLPSocial Media Policy• Things to Consider– Setting out that there is no expectation of privacy on Companyowned/issued equipment– Information and data transmitted on Company-owned/issuedequipment may be monitored– No personal usage of Company property (consider if this isdesirable/achievable)– Communications on Company-owned equipment are property ofCompany– No access to Facebook, etc. on Company equipment (again, askif 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 productsand/or services stating that views are personal and do notrepresent 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, otheremployees, customers, clients, and competitors– Employee must comply with confidentiality anddisclosure of proprietary data policies– Blogging should not interfere with work commitments– Consult manager if unsure if posts or activities are incompliance with policy– Avoid postings that put Company in negative light– Be mindful of potentially illegal conduct – invasion ofprivacy, securities laws, defamation– Avoid posting information about Company’s futureperformance or worth– Report violations to HR– Set out discipline potential– Consent to interceptionSocial 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 mattersSocial Media Policy
  • 36. © 2011 Haynes and Boone, LLPThank you for your time and attention!Janet H. Ayyad214.651.5296Janet.Ayyad@haynesboone.com
  • 37. © 2011 Haynes and Boone, LLPwww.haynesboone.com