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Social Media: Employment & HR Implications

Social Media: Employment & HR Implications



Shannon McDonough talks about Social Media's impact on employment and HR implications. Shannon is from FMJ (Fafinski, Mark & Johnson law firm).

Shannon McDonough talks about Social Media's impact on employment and HR implications. Shannon is from FMJ (Fafinski, Mark & Johnson law firm).



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    Social Media: Employment & HR Implications Social Media: Employment & HR Implications Presentation Transcript

    • SOCIAL MEDIA PRESENTATION – EMPLOYMENT AND HR IMPLICATIONS (September 22, 2011) Shannon M. McDonough 775 Prairie Center Drive, Suite 400 Eden Prairie, MN 55344 952-995-9500 [email_address] Fafinski Mark & Johnson, P. A. © 2011
    • I. AGENDA
      • 1. Overview of social media statistics from an employment context.
      • 2. Review current trends in caselaw regarding social media in the employment context.
      • 3. Address potential risks to employers and employees concerning improper use of social media.
      • 4. Discuss tips for crafting effective social media policies.
    • II. Overview
      • June 2009 Career Builders Survey*
        • 45% of employers reported they use social media to screen potential employees
        • 18% found content on the sites that encouraged them to hire the candidate
        • 35% found content on the sites that caused them not to hire the candidate
      • *Source: http://www.careerbuilder.com/Article/CB-1337-Interview-Tips-More-Employers-Screening-Candidates-via-Social-Networking-Sites/
    • II. Overview (Cont’d)
      • 53% of employers research potential job candidates on social networks*
        • Over 1/3 said that a social networking profile proved a candidate lied about his/her qualifications on CV
        • 13% claimed a candidate had made discriminatory comments on his/her Facebook page
        • 9% made provocative comments or posted inappropriate photographs
        • * The Growth of Social Media: Available at http://www.searchenginejournal.com/wp-content/uploads/2011/08/20110824SocialMediaBlack.pdf
    • II. Overview (Cont’d)
      • Practical concerns raised as a result of employees spending time and/or posting material on these sites
        • Decline in employee productivity
        • Negative publicity to the Company
        • Disclosure of Company confidential information
        • Potential legal exposure to employer
        • Potential disciplinary action/termination of employee
    • II. Overview (Cont’d)
      • Employees, including celebrities getting disciplined and fired for social media comments
        • Ozzie Guillen – Manager of Chicago White Sox suspended 2 games for Twitter messages sent moments after ejection
        • Gilbert Gottfried (the voice for the Aflac duck) fired by Aflac in March 2011 for tweeting more than a dozen jokes making fun of earthquake and tsunami victims in Japan
        • Reporter fired for tweeting raunchy remark about Bindi Irwin
    • III. Current Trends in the Law
      • Very new and evolving body of law
      • Most heavily focused on the ability of an employer to discipline/terminate an employee based upon his or her use of social media outlets
    • III. Current Trends in the Law (Cont’d)
      • City of Ontario, Cal. v. Quon , 130 S. Ct. 2619 (2010)
        • Police department had a Computer Usage, Internet and Email Policy
          • Reserving right to monitor all network activity
          • No expectation of privacy
          • Did not apply, on its face, to text messages
          • (But City made it clear text messages would be treated the same as emails)
    • III. Current Trends in the Law (Cont’d)
        • Officers going over their monthly limit of text messages on city-issued phones
        • City wanted to determine whether texts were work-related
        • City did not review texts that occurred outside of work hours
        • Quon sent mostly personal texts during work hours, several sexually explicit
        • Disciplined
    • III. Current Trends in the Law (Cont’d)
        • Quon brought § 1983 claim against City and police department, alleging review of text messages violated Fourth Amendment
        • US Supreme Court found the search did not violate Quon’s Fourth Amendment rights
          • Search was motivated by a legitimate work-related purpose
          • Not excessive in scope
    • III. Current Trends in the Law (Cont’d)
      • General Rule: At-Will Employment
        • Employer can terminate an employee for any reason as long as it’s not for a discriminatory or otherwise illegal purpose
      • Exceptions
        • Including NLRA implications
          • Could apply to union and non-union shops
    • III. Current Trends in the Law (Cont’d)
      • Employers – NLRA issues
        • National Labor Relations Act (“NLRA”) guarantees employees “the right to self-organization, to form, join or assist organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
    • III. Current Trends in the Law (Cont’d)
        • It is considered an unfair labor practice for an employer: “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” to form, join or assist a labor union. 29 U.S.C. § 158(a)(1).
    • III. Current Trends in the Law (Cont’d)
      • American Medical Response of Connecticut , Case No. 34-CA-12576 (October 5, 2010)
        • Case involved employee who was disciplined and eventually discharged for violating the company’s blogging and internet policies
          • Barred employees from depicting the company “in any way” on Facebook
          • Prohibited employees from making disparaging remarks when discussing the company or the employee’s superiors, co-workers or competitors
    • III. Current Trends in the Law (Cont’d)
        • Employee referred to her supervisor as a “scumbag,” used other vulgarities and posted “love how the company allows a 17 to become a supervisor” (which purportedly refers to the Co.’s code for a psychiatric patient)
        • First case in which the NLRB intervened on behalf of employee for criticizing her boss on a social networking site
        • Company maintained not protected “concerted activity”
    • III. Current Trends in the Law (Cont’d)
      • February 8, 2011, NLRB announced it reached a settlement agreement with the employer
        • Employer agreed to revise its overly-broad rules to ensure:
          • they do not improperly restrict employees from discussing their wages, hours and working conditions
          • they would not discipline or discharge employees for such discussions
        • Private settlement agreement reached w/ employee
    • III. Current Trends in the Law (Cont’d)
      • Hispanics United of Buffalo, Inc. (Case No. 3-CS-27872)
        • Complaint issued May 20, 2011
        • NLRB filed charge against non-profit social services agency for firing 5 employees for complaining after hours on Facebook about their jobs and working conditions
        • First ever ruling in social media cases
          • Prior NLRB cases settled confidentially
          • First to go to a hearing and reach a decision
    • III. Current Trends in the Law (Cont’d)
        • ALJ held the employer violated the NLRA for the terminations
          • Found discussion was protected concerted activity pursuant to Section 7 of NLRA
        • Ordered to reinstate the employees with back pay
        • Will likely be appealed
    • III. Current Trends in the Law (Cont’d)
      • Lee Enterprises, Inc. d/b/a Arizona Daily Star , Case No. 28-CA-23267
        • No social media policy
        • Employee tweeted sarcastic remark about Daily Star’s editors
        • Employee instructed not to use Twitter
        • Employee continued Tweeting
          • “ What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
          • “ You stay homicidal Tucson. See Star Net for the bloody deets.”
        • Warned and fired
    • III. Current Trends in the Law (Cont’d)
      • NLRB Office of the General Counsel issued an Advice Memorandum finding the discharge did not involve protected concerted activity
        • Did not related to terms and conditions of his employment
        • Did not seek to involve other employees in issues related to employment
    • IV. Legal Risks and Implications
      • 1) Tort Liability
        • Employer potentially could be liable for torts committed by employees
        • Examples:
          • defamation (of customers, competitors, other employees)
          • invasion of privacy (e.g., from posting or publishing private information about others)
          • negligence
      • Legal Risks and Implications (Cont’d)
      • 2) Other Employer Liability
        • Harassment or discrimination claims
          • Social networking sites often provide personal information about a candidate – e.g., age, race, marital status, religious affiliation, political views, etc.
          • This information may be “protected” information that an employer cannot ask about in the hiring process or use as a factor in hiring decision
      • Legal Risks and Implications (Cont’d)
          • Options to avoid liability:
            • Avoid screening job candidates on these sites
            • Or, if you are going to do it anyway, have someone other than the decision-maker screen these sites to filter out information the decision-maker is not supposed to have in making a hiring decision
      • Legal Risks and Implications (Cont’d)
        • Fair Credit Reporting Act
        • Retaliation claims – based upon adverse employment actions
      • Legal Risks and Implications (Cont’d)
        • Lawful, Off-Duty Activities
          • Minn. Stat. § 181.938
            • An “employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in… the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises… during nonworking hours.”
            • Includes alcohol and nonalcoholic beverages and tobacco
      • Legal Risks and Implications (Cont’d)
      • Invasion of Privacy
      • NLRA union protected activity (discussed above)
      • Federal Stored Communications Act
      • Computer Fraud and Abuse Act
      • Legal Risks and Implications (Cont’d)
      • 3) Employee Liability
        • Potential disclosure of trade secrets or confidential/propriety information
        • Defamation
        • Discipline/discharge
        • Use of social networking information against employee in litigation
    • V. Social Media Policies
      • Should you have one?
    • V. Social Media Policies (Cont’d)
      • Provisions to include
        • No expectation of privacy
          • Employer right to monitor/audit computer activity
          • Include text messages (for company distributed phones)
          • Right to disclose to law enforcement
    • V. Social Media Policies (Cont’d)
        • 2) Limitations on use
          • Limitation of personal use
          • Prohibit disclosure of confidential and proprietary information (other employees, clients, company)
          • Making statement on behalf of company
          • Making derogatory comments about company, employees, clients, etc. (be careful of NLRA issues)
    • V. Social Media Policies (Cont’d)
      • 3) Consider NLRA issues
      • 4) Reference other policies (such as confidentiality provisions)
      • 5) Obtain an acknowledgement of receipt
      • 6) Consider employee training
    • VI. Conclusion
      • As employees, be careful of what you post on social networking sites
      • As employers:
        • Stay current on social media legal decisions
        • Consider implementing social media policy
        • Consistent enforcement of policies
    • VII. Questions?
    • Social Media Presentation
      • Thank you!