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Social Media for Employers: Tips and Guidance
SOCIAL MEDIA FOR EMPLOYERS: SURVIVING THE STORM David M. Kight, Esq. Spencer Fane Britt & Browne, LLP Kansas City, Missouri Overland Park, Kansas Jefferson City, Missouri St. Louis, Missouri Omaha, Nebraska
2012 Labor and Employment SeminarMay 10, 2012Overland Park Convention Center6000 College BoulevardOverland Park, KS 66211May 22, 2012Hilton St. Louis Frontenac1335 South Lindbergh BoulevardSt. Louis, MO 63131June 14, 2012Freeman Business Center3220 McClelland BoulevardJoplin, Missouri 648046.25 hours of HRCI credit is provided.
Where we are today..The intersectionof social mediaand the law hasarrived.The cases havebegun…
Watch What You PostPurvis v. Commissioner of SocialSecurity, 2011 WL 741234 (D. N.J. Feb.23, 2011). Plaintiff claimed asthma asbasis for social security income. Claimwas denied. On Purviss appeal, thecourt noted that "[a]lthough the Courtremands the ALJs decision for a moredetailed finding, it notes that in thecourse of its own research, it discoveredone profile on what is believed to bePlaintiffs Facebook page where sheappears to be smoking ... If accuratelydepicted, Plaintiffs credibility isjustifiably suspect." Id. at *7.
Social Media Another WayFormer employee has contacted20 of the contract workers youuse on behalf of her newemployer and is soliciting theirbusiness. The former employeehas “connected” with 20 of yourclients via Linkedin and isencouraging them to call her.• Does this conduct violate the non-compete agreement?
Yes Virginia, You can sue…• TekSystems, Inc. v. Hammernik, et al., 2010 WL 1624258 (D. Minn. Mar. 16, 2010)• The lawsuit alleged that after Hammernik left TEKsystems in November 2009, she “communicated” with at least 20 TEKSystems contract employees and “connected” with about 16 of them using the LinkedIn professional network.
How it ended…• The case settled after the Company got a permanent injunction against the employee. The lesson learned: Conduct over Twitter, Facebook and LinkedIn are increasingly being used by the Courts and are being analyzed as if they were spoken or sent by e-mail, fax or letter. Your employees should be aware that policies relating to conduct apply equally to social media.
So what does this mean?• Social media is becoming an increasing part of our daily work lives. Thus, we will see it becoming more intertwined with how employees – and former employees – operate…• And demonstrate their idiocy.
On The Agenda• The National Labor Relations Board’s Social Media Push• Questions We Get from Clients• You Make the Call• Social Media in Litigation
The New Sheriff in Town…They are the primary government employment related agencywhich is addressing the rights of employees and employersregarding social media.They are getting very aggressive (historically) in taking actionsto increase employee rights. (See the new posting rule)They are encouraging employees (even non-union employees)to file unfair labor practice charges related to social mediadiscipline.
The NLRB• Federal Agency headquartered in Washington, D.C.• Has a five member governing board, but the majority is determined by the party in power – (thus, politics occasionally enters the picture)• Has the authority to investigate, ajudicate and sue you to enforce their orders.
So, what can they do, really? Remedies available to the NLRB if you have committed an Unfair Labor Practice: 1. Requiring you to cleanse their record of discipline; 2. Requiring you to reinstate them; 3. Requiring you to pay them backpay; 4. Requiring you to post a notice to employees; and 5. Court Injunctions. 13
So what is the biggest issue?• Policies which the NLRB feel are too broad. – Example: “Employees should not make disparaging remarks about the company, their supervisor, etc. on social media websites, blogs or any other form of electronic media.”• Drafting tip? – If you must have a policy addressing comments, make sure it is limited to trade secrets, confidential information about the company or customers, and information which if released would breach agreements the company has.
You Make the Call #1Five employees do not like their co-worker. Theybelieve the co-worker is a slacker and fakes illnesses toget out of work. They post derogatory messages onher Facebook page containing obscenities and openlyexpressing their negative feelings toward her. Thevictim complains. Following an investigation, the fiveemployees are discharged for harassment under thecompany’s zero tolerance policy. Any problem withthe discharges?
You Make the Call #1Most likely. Recently, an administrative law judge of the Boardheld that the five employees were engaging in concertedprotected activity for which they could not be discharged.The judge held that the Facebook postings were no differentthan “water cooler” talk and could not be interfered with. Heheld that even though the conversations were not directed tothe employer, because they involved terms and conditions ofemployment they were protected.The judge ordered the employees reinstated. An appeal to theBoard is pending.
You Make the Call #2Employer is an ambulance service. Employer had a policyprohibiting disparaging comments when discussing thecompany or an employee’s superiors. An employee is asked bya supervisor to prepare an incident report about a customercomplaint about the employee. The employee asked for aunion representative to be present during the preparation ofthe report. She did not get the union rep. Employee goeshome and makes a negative post about her supervisor on herpersonal Facebook page which drew supportive commentsfrom co-workers and further negative comments about thesupervisor. Employee is fired. Was it permissible?
You Make the Call #2According to the NLRB, no. The policy prohibitingnegative comments was unlawful as likely to prohibitan employee from engaging in lawful activity.The NLRB further found that a discussion about anemployer’s refusal to comply with an employee’sWeingarten right and discussing a supervisor onFacebook was protected activity.The termination was unlawful.
You Make the Call #3Employee is a reporter. His employer encourages him to opena Twitter account and use twitter to get stories out. Employeegets a twitter account. Employee’s twitter biography mentionsthat the employee is a reporter and names his employer.Employee sends out a tweet critical of the newspaper’s copyeditors. Employer questions the employee and orders him notto air internal grievances or comment about the paper publicly.Employee then posts derogatory comments about homicides inthe city and tweets negatively about a tv station. Employerterminates employee because of his repeated tweets damagingthe newspaper’s good will. Was the termination lawful?
You Make the Call #3According to the NLRB, yes. The reporters tweetswere not related to his wages, hours or workingconditions. In addition, he was not tweeting in orderto involve others in issues related to employer. Rather,he ignored his employer’s warnings aboutinappropriate tweets.The termination was lawful.
You Make the Call #4Employer is a restaurant with an unwritten policy thatwaitresses don’t share tips with the bartenders even thoughthe bartenders help serve food. A bartender discussed theissue with a co-worker who agreed that it “sucked.” Severalmonths later in Facebook posts, the bartender complained to arelative that he was doing waitresses work without the tips.He called the restaurant’s customers “rednecks” and said hehoped that they choked on glass as they drove home drunk.He didn’t discuss the posting with co-workers and none ofthem responded. The owner sent a facebook message to theemployee telling him his services were no longer needed. Wasthe termination lawful?
You Make the Call #4According to the NLRB, yes. Although the postingsconcerned terms and conditions of work, theemployee did not discuss the posting with co-workersand none of them responded to the posting. Therewere no employee meetings or any attempt to initiategroup action concerning the policy.The termination was lawful.
You Make the Call #5Employer provides emergency and non-emergency medicaltransportation and fire protection services. Employee is adispatcher. A Senator representing the state in which theemployer was located announced some fire districts weregetting federal grants. Employee posts on the Senator’s“Facebook Wall” that her employer only got its contractsbecause it was the cheapest in town, paid less than thenational average and only two trucks for an entire county. Shealso posted that the company sent a crew who was unable toperform CPR to respond to a cardiac arrest call. Employerterminates the employee for public posting of disparagingremarks and revealing confidential information. Was thetermination lawful?
You Make the Call #5According to the NLRB, yes. The employee did not discuss herposting with any other employees, including her husband whowas an EMT. There were no employee meetings regarding theposting. The employee also did not use the postings as a wayto complain to management. The employee admitted that shedid not expect the Senator to assist her employment situation.The termination was lawful.
You Make the Call #6Employer was a retail store operator. Employee was a customerservice employee. Employee posts on Facebook criticalcomments about a new Assistant Manager. Employee noted“tyranny” at the store and that the Employer was going to get awake up call when people quit. Co-workers posted asking whyhe was “wound up.” Employee responded by calling theAssistant Manager a “super mega puta” and complained aboutdiscipline. One co-worker posted a “hang in there” kind ofcomment. Store Manager gave the employee a one-daysuspension which prohibited promotion for 12 months. Wasthe discipline lawful?
You Make the Call #6According to the NLRB, yes. The postings were expressions ofan individual’s gripe. They expressed only frustration with hisindividual dispute and did not contain language suggestinggroup action. The termination was lawful.
Questions We Get From Clients• I need a social media policy, don’t I?• What do I need to have in a social media policy?
Social Media Policies: TheRight Approach Step 1: Address Use and Misuse of Electronic Devices
Do these • Address Use and Misuse 1 of Electronic Devices • Confidentiality and Trade 2 Secret • Ethics and Harrassment 3 Policies Do Apply
Don’t do these • Forget about e-mail or 1 instant messaging. • Assume you can cover all 2 areas of social media. • Forget to get employees 3 to recognize the policy.
Potential Claims For Posts• Defamation – Libel / Slander for comments made on Twitter – Courtney Love eventually paid $430k to settle a defamation claim• Intellectual property infringement (including trademark and copyright – i.e. tagging another company’s copyrighted terms in your youtube tags.
Additional Potential Claims• Claims by co-workers for harassment, discrimination, negligent retention, negligent supervision, infliction of emotional distress• Claims by third parties for emotional distress or privacy related torts• Non-competition claims – i.e. soliciting clients or employees through LinkedIn or Facebook (See above)
Potential Claims by Users• Off-Duty conduct laws (IL, CA, NY, CO, ND)• Retaliation under Title VII or state law• Whistleblowing under Sarbanes Oxley• Discrimination under Title VII or state law• Invasion of Privacy• Violation of the Stored Communications Act
Not there yet• There is no such thing as a“Friend” privilege preventing aCourt from ordering someoneto provide a username,password or details from aSocial Media account where youhave limited your posts to “friends.”
Discovery of Social Media Content• E.E.O.C. v. Simply Storage Management, U.S. Dist. Court for S.D. Indiana (May 11, 2010). http://bit.ly/c58NxX• In this case, the employer was sued for sexual harassment by two employees.• In discovery, the employer sought production of photographs and videos as well as updates and messages on their Facebook and MySpace pages.
Discovery of Social Media Content• The EEOC objected arguing based on privacy and an attempt to embarrass the plaintiffs.• The employer countered that the EEOC had placed the emotional health of the woman at issue by claiming “medical treatment” stemming from alleged harassment and claiming depression from post traumatic stress disorder.
Discovery of Social Media Content• The court ruled: – “It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.”
Discovery of Social Media Content• Crispin v. Christian Audigier, Inc., U.S. Dist. Court for the Central District of California (May 26, 2010)• http://scr.bi/a11m59• Employer sought postings on Facebook, MySpace and Media Temple.• Court quashed a subpoena to the extent it sought private e-mail messages through the site as protected under the Stored Communications Act.
Discovery of Social Media Content• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist. Ct. M.D. of Tenn.• Plaintiff claims she fell from a bar at a “Coyote Ugly” saloon in Nashville. She argued that the bar was wet and slick and when she tried to climb onto the bar hit her head.• Defendant subpoenaed Facebook for plaintiffs Facebook information, including photos of plaintiff and her friends dancing on the bar.
Discovery of Social Media Content• The court ruled: – “In order to try to expedite further discovery regarding the photographs, their captions and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.”
Quick Tip• Companies should update their document retention policy to include social media activity. The procedures that the company is following for e-mails in terms of storage and retention periods may be a good starting point.
FINRA is There• FINRA issued guidance in January 2010 for blogs and social networking sites:• "Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 ad 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110."
THANK YOU FOR COMING!• Any Questions? David Kight, Esq. Spencer Fane Britt & Browne, LLP email@example.com