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How to avoid social media issues in the workplace

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Social media is a more prominent part of day-to-day life than ever before—and the office is no exception. Senior managing associates Kate Douglas and Rachel Milazzo share this primer on how to manage …

Social media is a more prominent part of day-to-day life than ever before—and the office is no exception. Senior managing associates Kate Douglas and Rachel Milazzo share this primer on how to manage your social media presence without disrupting your professional life, and on how employers can and cannot engage with their employees' online activities.

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  • 1. CLE Seminar for In-House Counsel June 24, 2014 St. Louis, MO IDK if I Can Post That: How to Avoid Social Media Issues in the Workplace Kate Douglas Senior Managing Associate, St. Louis Dentons +1 314-259-5937 kate.douglas@dentons.com Rachel Milazzo Senior Managing Associate, St. Louis Dentons +1 314-259-5830 rachel.milazzo@dentons.com
  • 2. Prevalence of Social Media in the United States • What is social media? • "Social media" is defined as "forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos)." • The first known use of the term "social media" was in 2004. • See http://www.merriam-webster.com/dictionary/social%20media. • Examples of social media include: • Facebook • Twitter • LinkedIn • Google+ • Instagram 2
  • 3. Prevalence of Social Media in the United States • Social media is popular. • Google+ receives 1.2 billion visits per month, while Facebook receives 809 million visits per month. • See http://www.business2community.com/social-media/83-exceptional-social-media-marketing- statistics-2014-0846364. • Moreover, social media is popular among adults. • As of September 2013, 73% of online adults used social networking sites. • Facebook is by far the most popular social networking site among adults, with 71% of online adults using it. • See http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/. • The fastest growing segment of social media users is now adults aged forty-five to fifty- four. • http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. 3
  • 4. Prevalence of Social Media in the United States • Many companies use social media for business purposes. • One poll indicates that, as of mid-2013, 75.4% of participating businesses used social media for business purposes. • See http://www.stellarmediamarketing.com/social-media/social-media-in-the-workplace- socialmedia/. • 90% of Inc. 500 companies (500 fastest growing privately held companies) use at least one major social media platform. • See http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. • Many top executives use Facebook (55%) and LinkedIn (64%) on a regular basis. • See http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. 4
  • 5. Prevalence of Social Media in the United States • There are numerous business benefits to having a social media presence. • For example, 82% of buyers say they trust a company more when its CEO and senior leadership team are active in social media. • http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. • Moreover, 77% of buyers say they are more likely to buy from a company if its CEO uses social media. • http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. • Social media is also an excellent marketing tool, with 93% of marketers indicating that they use social media for business purposes. • http://socialmediatoday.com/tompick/1647801/101-vital-social-media-and-digital-marketing- statistics-rest-2013. 5
  • 6. Prevalence of Social Media in the United States • Not all large companies, however, have or need a social media presence. As of October 2013, for example, neither Apple nor Trader Joe's had a social media presence. • See http://www.flowexp.com/blog/apples-social-media-success. • Also, the use of social media in the workplace can be risky without: (1) a firm understanding of the legal, statutory, and regulatory authority that governs its use; and (2) a policy in place to govern your company's/employees' use of social media. • This presentation will provide you with a basic understanding of the legal, statutory, and regulatory authority that governs the use of social media in the workplace, and it will also provide you with information to consider as you draft, review, or revise your company's social media policy. 6
  • 7. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Model Rule 1.1 provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." • Comment 8 to Model Rule 1.1 further provides that "[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . ." (emphasis added). • In short, you have an ethical duty to understand technology that impacts your practice, including social networking sites like Facebook, Twitter, etc. The Model Rules of Professional Conduct 7
  • 8. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • The Stored Communications Act ("SCA"), 18 U.S.C. §§ 2701 et seq., governs access to stored wire and electronic communications and transaction records. • It is a violation of the SCA to "intentionally access[] without authorization a facility through which an electronic communication is provided . . . and thereby obtain[], alter[], or prevent[] authorized access to a wire or electronic communication while it is in electronic storage in such system." Id. § 2701(a). • The SCA was enacted in 1986, and is therefore neither specifically tailored nor well-suited to address issues arising in the internet or social media context. • However, the SCA applies in the social media context and may prohibit: (1) third parties from intentionally accessing information from a social media site without authorization; and (2) entities such as Facebook from disclosing such information without authorization. Federal Statutes: The Stored Communications Act 8
  • 9. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Court decisions arising in the context of the SCA/e-mail/social media are far from uniform. • However, a review of the relevant cases provides "food for thought" and highlights issues to keep in mind any time you consider accessing an employee's personal e-mail or social media account. Federal Statutes: The SCA cont. 9
  • 10. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Relevant Cases: The SCA and Access to an Employee's Personal E-mail Account • Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp. 2d 914 (W.D. Wis. 2002). • Former employee filed suit against employer alleging, inter alia, violation of the SCA after former employer retained computer expert for purposes of accessing employee's Hotmail account. Employer accessed e-mail by guessing employee's password. Based on previous events, former employer (a church) was concerned that former employee (its youth minister) may be engaging in inappropriate communications with minors from his personal e-mail account. See generally id. • District court denied employer's motion for summary judgment on the SCA count, finding genuine issues of material fact existed. Id. at 924-26. • In denying the motion, the court noted that "defendant[] . . . accessed plaintiff's email while it was stored on a remote, web-based server that is owned by Microsoft, an electronic communication service provider. . . . [T]he legislative history shows that Congress intended the Stored Communications Act to cover the exact situation in this case . . . ." Id. at 925-26. • Court also observed that the SCA generally is "famous (if not infamous) for its lack of clarity." Id. at 924. Federal Statutes: The SCA cont. 10
  • 11. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Relevant Cases: The SCA and Access to an Employee's Personal E-mail Account cont. • Borchers v. Franciscan Tertiary Province of the Sacred Heart, Inc., 962 N.E.2d 29 (Ill. App. Ct. 2012). • Former employee filed suit against former employer alleging, inter alia, violation of the SCA after former employer accessed employee's personal e-mail account from a work computer. Personal account was accessible by clicking on AOL icon on employee's work computer and did not require a login or password. See generally id. • Appellate court reversed the trial court's summary judgment in favor of employer on the SCA count, finding that genuine issues of material fact existed. Id. at 38-42. • Among other things, the appellate court noted that the former employer had (1) accessed plaintiff's personal e-mail account at a time when plaintiff's sexual harassment claim against it was pending, and (2) reviewed and printed numerous e-mails that clearly had no relation to plaintiff's employment with the defendant. In light of these facts, the court found genuine issues of material fact existed regarding whether the former employer intentionally "accessed" information through an AOL "facility." See id. at 41-42. Federal Statutes: The SCA cont. 11
  • 12. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Relevant Cases: The SCA and Access to an Employee's Website/Social Media Account • Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). • Airline pilot filed suit against his employer alleging, among other things, violation of the SCA after a manager gained access to his private website (on which he was critical of his employer and his union) by using the credentials of two eligible users. Both eligible users were co-workers whom plaintiff invited to use his website. A manager requested to use their credentials to access plaintiff's website, and both co-workers consented to this request. See generally id. • The district court granted summary judgment in favor of defendant on plaintiff's SCA claim, finding that plaintiff's co-workers were authorized users of the site and had granted the manager access, but the Ninth Circuit reversed. Id. at 880. • In so doing, the Ninth Circuit relied on the fact that the district court "did not make any findings on whether [plaintiff's co-workers] actually used Konop's website--it simply assumed that [plaintiff's co- workers], by virtue of being eligible to view the website, could authorize [the manager's access]." Absent evidence that either co-worker was an actual user of the website at the time authorization was granted (as opposed to an eligible user), summary judgment was improper. Id. • The Ninth Circuit also noted the unsettled nature of this area of the law: "We observe that until Congress brings the laws in line with modern technology, protection of the Internet and websites such as Konop's will remain a confusing and uncertain area of the law." Id. at 874. Federal Statutes: The SCA cont. 12
  • 13. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Relevant Cases: The SCA and Access to an Employee's Website/Social Media Account cont. • Pietrylo v. Hillstone Restaurant Group, Civil Case No. 06-5754 (FSH), 2008 WL 6085437 (D.N.J. July 25, 2008). • Plaintiffs filed suit against former employer alleging, among other things, violation of the SCA. Plaintiff Pietrylo created a private group on MySpace to "vent about any BS we deal with [at] work." The group was private and could be joined by invitation only. Management eventually learned of the group and requested the password from a member. Said member provided the password, stating that, although she was never threatened, she believed she would get in trouble if she did not comply. Plaintiffs were fired due to the content of the MySpace page. See generally id. • The district court denied defendant's motion for summary judgment on the SCA claim, finding genuine issues of material fact existed. Id. at *4. • Specifically, the court found that a genuine issue of material fact existed regarding whether the employee who provided the password did so voluntarily. If she did so under duress, the court concluded that the managers' access of the page was not "authorized" within the terms of the statute. Id. Federal Statutes: The SCA cont. 13
  • 14. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • The SCA: What to Take Away • This is an unclear and unsettled area of the law. • The cases cited above are simply examples, and are in no way intended to represent the settled law on any issue discussed therein. • Any time you consider accessing an employee's personal e-mail account or social media site consider the SCA and the relevant case law. • Also keep in mind that states may have enacted similar statutes. • For example, the New Jersey counterpart to the SCA was also at issue in Pietrylo. • Missouri does not have a state counterpart to the SCA. • See 37 MO. PRAC. Employment Law & Practice § 6:10. Federal Statutes: The SCA cont. 14
  • 15. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Many states have enacted statutes that limit and/or prohibit employers from requesting or requiring employees and/or prospective employees to provide usernames/passwords that would provide access to their social media accounts. • This type of legislation was, in part, prompted by widespread stories of employers asking prospective employees/job applicants for access to their social media sites during the job application process. • In 2010, for example, Robert Collins reapplied for a job with the Maryland Department of Public Safety and Correctional Services. • At that time, he was asked for his Facebook login information. He indicated that he complied with the request because "he needed a job for his family." • Jordan M. Blanke, The Legislative Response to Employers' Requests for Password Disclosure, 14 J. HIGH TECH. L. 42 (2014). • Maryland was the first state to regulate this type of employer conduct, with a law becoming effective on October 1, 2012. • See Md. Code Ann., Lab. & Empl., § 3-712. State Statutes 15
  • 16. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Many states have since enacted similar statutes, including: • Arkansas, Ark. Code Ann. § 11-2-124. • California, Cal. Lab. Code § 980. • Colorado, Colo. Rev. Stat. Ann. § 8-2-127. • Illinois, 820 Ill. Comp. Stat. 55/10. • Michigan, Mich. Comp. Laws §§ 37.271 et seq. • Nevada, Nev. Rev. Stat. § 613.135. • New Jersey, N.J. Stat. Ann. §§ 34:6B-6 et seq. • New Mexico, N.M. Stat. Ann. § 50-4-34. • Oregon, Or. Rev. Stat. § 659A.330. • Utah, Utah Code Ann. §§ 34-48-101 et seq. • Washington, Wash. Rev. Code Ann. § 49.44.200. State Statutes cont. 16
  • 17. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Just this year, several additional states passed similar legislation, including: • Louisiana, H.B. 340. • Oklahoma, H.B. 2372. • Tennessee, S.B. 1808. • Wisconsin, S.B. 223. State Statutes cont. 17
  • 18. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Missouri also has similar legislation pending, although it has not yet passed: • The two most recent bills are H.B. 1834 and S.B. 750. • Both are intended to prohibit employers from requesting or requiring an employee or job applicant to provide the user name, password, or other information necessary to access that person's personal online account or service. In addition, both bills: • Include exemptions for business accounts and electronic devices provided by the employer. • Prohibit employers from taking retaliatory action against employees/refusing to hire prospective employees for refusing to disclose protected information. • Permit employers to engage in certain investigatory practices. • To track the status of relevant pending legislation in all fifty states, visit: Employer Access to Social Media Usernames and Passwords, National Conference of State Legislatures (June 11, 2014), http://www.ncsl.org/research/telecommunications-and-information- technology/employer-access-to-social-media-passwords-2013.aspx. State Statutes cont. 18
  • 19. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • State statutes/proposed legislation in this area are not uniform. Issues to consider when reviewing a particular statute/bill include: • Who falls within the statute's scope? • Some statutes exclude certain entities from the definition of "employer," such as certain governmental entities. • Most statutes protect both employees and prospective employees, although some may be more restrictive. • What does the statute protect? • Some statutes apply broadly to "electronic communication devices" and protect cell phones, computers, etc., while others are more narrow and apply only to "social networking websites." • These more narrow statutes may not protect personal e-mail accounts. State Statutes cont. 19
  • 20. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • State statutory considerations cont. • What conduct is prohibited? • Does the statute simply prohibit the employer from requesting/requiring user name and/or password, or does it go further? For example, some statutes/proposed legislation now prohibit employers from: • Requiring the employee to add the employer to his/her list of contacts. • Requiring the employee to change his/her privacy settings. • Accessing the employee's social media site indirectly through another person who is a social media contact of the employee. • Requiring the employee to access his/her social media site in the employer's presence. • Some statutes further prohibit an employer from taking, or threatening to take, adverse action against an employee who refuses to provide information in prohibition of the statute. State Statutes cont. 20
  • 21. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • State statutory considerations cont. • What conduct is permitted? • Some statutes permit employers to request information necessary to access accounts and/or devices provided by the employer or used by the employee for business purposes. • Some statutes permit employers to request an employee to disclose personal social media information necessary to conduct an investigation into possible employee misconduct or legal/regulatory violations. • Some statutes provide that employers are permitted to access employee information available in the public domain. • For a more in-depth analysis of these issues, see Jordan M. Blanke, The Legislative Response to Employers' Requests for Password Disclosure, 14 J. HIGH TECH. L. 42 (2014). State Statutes cont. 21
  • 22. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • State Statutes: What to Take Away • This is a constantly evolving area of the law. States continue to introduce and pass new legislation on this topic on a yearly basis. • If there is a particular state of interest to you, keep an eye on legislation in that jurisdiction. • Although the state statutes all generally address the same issue, the statutes are far from uniform. • Review each state's particular statute to understand its scope and application. • Any time you consider requesting access to an employee's or prospective employee's personal e-mail account or social media site, consider the statutes in place in the applicable jurisdiction. State Statutes cont. 22
  • 23. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Many federal regulatory agencies have issued guidance regarding the use of social media by entities/persons falling under their purview. • Agency guidance documents are policy statements. • They are not binding. • Rather, they are intended to provide the public with a sense of the agency's position on a given issue. Agency Guidance 23
  • 24. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • By way of example, the following agencies have issued guidance or other statements regarding the use of social media: • Equal Employment Opportunity Commission ("EEOC"). • Federal Trade Commission ("FTC"). • National Labor Relations Board ("NLRB"). • Securities and Exchange Commission ("SEC"). Agency Guidance cont. 24
  • 25. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Specific Example of Agency Guidance: The FTC • What is the FTC? • The FTC identifies itself as a bipartisan federal agency with a dual mission to protect consumers and promote competition. • What does the FTC do? • Protects consumers by stopping unfair, deceptive, or fraudulent practices. • Among other things, conducts investigations and sues companies/individuals that violate the law. • Promotes competition by enforcing antitrust laws. • Among other things, monitors business practices, reviews potential mergers, and challenges the same when appropriate. • Information taken from http://www.ftc.gov/. • Accordingly, keep the FTC in mind any time your company is (1) advertising or marketing to consumers or (2) considering or going through a merger. Agency Guidance cont. 25
  • 26. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • The FTC cont. • In March 2013, the FTC issued ".com Disclosures: How to Make Effective Disclosures in Digital Advertising." • This guidance document was an update to the original FTC .com Disclosures, which were issued in 2000. • The updated .com Disclosures "take[] into account the expanding use of smartphones with small screens and the rise of social media in marketing. . . . The new guidance points out that advertisers using space-constrained ads, such as some social media platforms, must still use disclosures necessary to prevent ads from being deceptive . . . ." • See Press Release, FTC, FTC Staff Revises Online Advertising Disclosure Guidelines, 2013 WL 936204 (March 12, 2013). • The updated .com Disclosures provide sample advertisements that illustrate the principles set forth in the guidance document. Agency Guidance cont. 26
  • 27. Main Statutory, Regulatory and Legal Authority that Regulates Social Media: • Agency Guidance: What to Take Away • Be aware of the federal agency(ies) that regulate your business and know whether they have issued guidance regarding the use of social media. • The guidance documents discussed above are examples only, and are far from exhaustive. • Although guidance documents are not binding, they provide excellent insight regarding an agency's policy position with respect to the use of social media. Agency Guidance cont. 27
  • 28. Regulating Employee Use Of Social Media • Why Should Employers Have a Social Media Policy in Place? • Prevent Reputational Injury • Protect the Release of Competitive Information • Employees being linked to customers via social media (information exposed to competitors). • Increase Productivity • Limit Liability • Avoid fines and/or civil liability for FTC violations for employee posts about your company's goods or services without the required disclosure of their affiliation. • Harassment and discrimination concerns (supervisor and subordinate interaction via social media). • Maintain Control Over the Company's Social Media Sites • Remember - Employee posts are immortal, so it is imperative to have a policy in place. • The Way Back Machine (https://archive.org/web/web.php) - A digital archive of information on the internet that links to the original content of a web page that has changed, moved, or disappeared. 28
  • 29. Regulating Employee Use Of Social Media • National Labor Relations Board ("NLRB") • What is the NLRB? • The NLRB is an independent federal agency vested with the power to safeguard employees' rights to organize in order to improve their wages and working conditions and to determine whether to have unions as their bargaining representative. • The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. • Enforces the National Labor Relations Act (the "Act") and pursues, among other things, employers that have taken disciplinary action against employees for social media postings that relate to their employment. • See National Labor Relations Act, 29 U.S.C. §§ 151 et seq; NLRB, http://www.nlrb.gov/what-we-do. • What Does the NLRB Protect? • Protects employee rights to engage in "concerted" activity (re: terms and conditions of employment). • Protects employee rights to form unions and to decertify unions that have lost support. • Certain employer discipline may result in the NLRB filing an unfair labor practice charge against the employer, requiring the employer to reinstate the employee and provide them with full back pay. 29
  • 30. Regulating Employee Use Of Social Media • Does the NLRB Have Jurisdiction Over You? • The NLRB has statutory jurisdiction over private sector employers. In the private sector, the NLRB's jurisdiction reaches employers whose business has an appreciable impact on interstate commerce. • For a list of individuals excluded from protection under the Act, see Employee Rights, NLRB (June 12, 2014), http://www.nlrb.gov/rights-we-protect/employee-rights. • Protects unionized and non-unionized employees. • NLRB's General Counsel has determined that non-union employee activity is protected under federal labor law. • As a practical matter, the NLRB’s jurisdiction is very broad and "covers the great majority of non- government employers with a workplace in the United States, including non-profits, employee- owned businesses, labor organizations, non-union businesses, and businesses in states with 'Right to Work' laws." • Jurisdictional Standards, NLRB (June 13, 2014), http://www.nlrb.gov/rights-we-protect/jurisdictional-standards. 30
  • 31. Regulating Employee Use Of Social Media • What Types of Statements and Activity are Protected by the NLRB? • Statements/Posts the NLRB Has Deemed Protected: • Social media posts can be protected concerted activity under the Act. • Generally, statements and posts made on behalf of other employees or a group of employees are "protected." • Employees have a right to talk about the following: • Terms and conditions of employment; • Wages/compensation; • Communication of group complaints; • Work-related safety concerns; • Discussion of unionization; and • Complaints about the company or disparaging remarks about superiors/managers. • See Employee Rights, NLRB (June 12, 2014), http://www.nlrb.gov/rights-we-protect/employee-rights (this is a non-exhaustive list). 31
  • 32. Regulating Employee Use Of Social Media What Types of Statements and Activity are Protected by the NLRB? cont. • Employee statements that could potentially damage the company's reputation. • Costco had an employee handbook in place, for non-union employees, with policies the NLRB found problematic. The subject policy, which advised that employees "may be subject to discipline, up to and including termination of employment" for online posts "that damage the Company, defame any individual or damage any person's reputation . . . ," was found to be in violation of the Act because the NLRB found the language could be "reasonably construe[d]" to prohibit protected activity (i.e., communicating concerns about Costco's treatment of its employees, etc). Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012). • Employers cannot discipline or terminate employees for exercising these protected rights. 32
  • 33. Regulating Employee Use Of Social Media • What Types of Statements and Activity are Not Protected by the NLRB? • Statements/Posts the NLRB Has Found are Not Protected: • Employees venting about customers or issues unrelated to the terms and conditions of their employment. • A Walmart greeter posted the following comment on his Facebook wall: "The government needs to step in and set a limit on how many kids people are allowed to have based on their income. If you can't afford to feed them you shouldn't be allowed to have them. . . . Our population needs to be controlled! In my neck of the woods when the whitetail deer get to be too numerous we thin them out! . . . . Just go to your nearest big box store and start picking them off. . . . We cater too much to the handicapped nowadays! Hell, if you can't walk, why don't you stay the f@*k home!!!!" Walmart, No. 11-CA-067171, 2012 WL 1951766 (NLRBGC May 30, 2012). • Posts, statements and opinions related to an employee's job that are purely provocative. • A reporter, assigned to cover the crime and public safety beat, was fired from the Arizona Daily Star for messages that he posted to his personal Twitter account. He posted one message about the Daily Star's copy editors and was reprimanded. Following that incident, he posted a series of messages regarding homicide in Tucson, including: "You stay homicidal, Tucson. See Star Net for the bloody deets," "I'd root for daily death if it always happened in close proximity to Gus Balon's," and "What?!?!? No overnight homicide? WTF? You're slacking Tucson." Lee Enters., Inc., d/b/a Ariz. Daily Star, No. 28-CA-23267, 2011 WL 7771804 (NLRB Advice Mem. Apr. 21, 2011). 33
  • 34. Regulating Employee Use Of Social Media • What Types of Statements and Activity are Not Protected by the NLRB? cont. • Activity and statements that are reckless, violent or malicious are not protected. • E.g., threatening violence or exposing your company's trade secrets. • The NLRB, Office of the General Counsel, has issued three memoranda addressing the use of social media in the employment context. • These memoranda address the issue of firing employees for postings on social media and the propriety of employers' social media policies. See Memorandum OM 12-59 (May 30, 2012); Memorandum OM 12-31 (January 24, 2012); Memorandum 11-74 (August 18, 2011). • The memoranda largely focus on whether the employers' conduct/social media policies at issue infringe employees' rights as guaranteed under Section 7 of the Act. • Section 7 of the Act provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title." 29 U.S.C. § 157. • Like agency guidance documents, NLRB General Counsel Memoranda are not binding documents. Rather, they are issued to provide policy guidance. 34
  • 35. Regulating Employee Use Of Social Media • The NLRB cont. • The memoranda are somewhat contradictory and, overall, do not provide clear guidance to employers. However, you should be aware of the general content of the memoranda when drafting a social media policy, or if you are considering taking action against an employee for something that the employee has said/posted on a social media site. • If disciplining or terminating an employee for social media posts, consider areas of legal concern: • E.g., Unfair Labor Practices • Consult with legal counsel prior to disciplining or terminating an employee for social media posts. 35
  • 36. Policy Drafting - Considerations • How to Draft Your Policy • One Size Does Not Fit All. • What are your goals? What are you trying to accomplish? • Make sure your policy is consistent with your other policies and employment agreements. • Consider Public Exposure of Your Policy. • Make sure company interests are balanced against employee rights - your policy could end up on the internet. • Policy Language - Cannot be Too Limiting or Restrictive. • Section 7 permits employees to engage in "concerted activities for the purpose of . . . mutual aid or protection." 29 U.S.C. § 157. • One sure fire way to violate the Act is to have policies with overbroad language. • Policies must be carefully crafted so that they withstand NLRB scrutiny. 36
  • 37. Policy Drafting - Considerations • How to Draft Your Policy - Content • Not an easy task. Generally, the policy should provide disclaimers and sufficiently detailed examples. • Rules that restrict their scope by including examples of prohibited conduct are generally lawful. • (e.g., rule prohibiting disclosure of trade secrets and the company's private confidential information that provides examples of the material at issue - "processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications"). • Rules that are ambiguous about their application to Section 7 activity, that contain no limiting language to clarify that employee rights are not restricted, are unlawful. • (e.g., "avoid harming the image and integrity of the company . . .") • Disclaimers are encouraged BUT they will not cure otherwise overbroad rules and ambiguities. • (e.g., ". . . this policy shall not be construed so as to infringe employees' rights protected by the NLRA . . .") • Make sure your social media policies provide employees with clear information, context and examples. • See generally Memorandum OM 12-59 (May 30, 2012). 37
  • 38. Policy Drafting - Dos and Don'ts: Acceptable Provisions • Examples of Acceptable Policy Provisions: • Policy that advises against "inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar, inappropriate or unlawful conduct." • But see similar provision that the NLRB found unlawful - "[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline . . . ." (NLRB found this provision to be ambiguous due to the lack of specificity regarding the types of communications that would be inappropriate and overly broad because it could potentially include protected criticisms of the employer's treatment of employees and/or labor practices). See Memorandum OM 12-59 (May 30, 2012). • Policy prohibiting company employees from disparaging company leadership, services, products, employees, strategy and business prospects. (Note: Context and application are key). • Policy adopted by Sears. Found lawful because it provided a list of examples of the types of egregious conduct it was targeting - e.g., explicit sexual references, disclosure of proprietary information, etc. Sears Holdings (Roebucks), No. 18-CA-19081, 2009 WL 5593880 (NLRBGC Dec. 4, 2009). • Policy that prohibits employees from posting anything to the internet ". . . in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President's designated agent." • See Memorandum OM 12-59 (May 30, 2012). 38
  • 39. Policy Drafting - Dos and Don'ts: Unacceptable Provisions • Generally, if an employer's policies explicitly restrict protected activity under Section 7, or employees could "reasonably construe" the language to restrict protected activity, the employer is in violation of the Act. See Memorandum OM 12-59 (May 30, 2012). • Examples of Unacceptable Policy Provisions: •Preventing employees from complaining about management and working conditions with their co- workers. • Employee fired for posting disparaging remarks about her supervisor on Facebook, referring to him as a "17" (a shorthand term for psychiatric patients). Several co-workers responded to the post with supportive comments. The NLRB issued a complaint finding that the company's social media policy, which prohibited employees "from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors," improperly attempted to regulate protected activity. Am. Med. Response of Conn., Inc., No. 34-CA-12576 , 2010 WL 7368090 (NLRB Advice Mem. Oct. 5, 2010); Michael Starr & Katherine H. Marques, The NLRB's New Regulation of Social Media, NATIONAL LAW JOURNAL (June 27, 2011). •Requiring an employee to obtain prior approval from the employer before engaging in protected activity is unlawful. • Instructing employees, "[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] or [Employer] Legal to see if it's a good idea[.]" Memorandum OM 12-59 (May 30, 2012). •Discouraging communication amongst co-workers. • Instructing employees to "[t]hink carefully about 'friending' co-workers . . . ." See Memorandum OM 12-59 (May 30, 2012). 39
  • 40. Policy Drafting - THERE'S A LOT OF GREY AREA! • Be advised - there are some seemingly inconsistent findings in the NLRB 2012 Report, so policy drafting is not black and white. Legal standards are unsettled as to what policy language constitutes unfair labor practices. • Small differences in the wording of a policy can make all the difference because the NLRB looks to what an employee would reasonably conclude based on the plain language of the policy. • See Michael Starr & Katherine H. Marques, The NLRB's New Regulation of Social Media, NATIONAL LAW JOURNAL (June 27, 2011). • Including definitions and guidance to clarify your social media policy will help you avoid an NLRB finding that your policy is overly broad (NLRB found employer's policy overly broad because it did not include definitions or guidance as to what the employer considered to be "embarrassment, harassment or defamation"). See Memorandum OM 11-74 (August 18, 2011). 40
  • 41. Training Employees on the Company's Social Media Policy • Training • Having a policy in place is not going to be effective unless employees are properly trained and provided with a course that educates them on the policies. • Recommended: Host a training/information session annually. • Train employees on how to set up their privacy settings. • If your settings are on "public" - remember everyone can see them. • Cisco Tweet: Applicant for a position at Cisco tweeted: • "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute and hating the work." • The Business Development Director tweeted the Applicant back: • "Who is the hiring manager? I'm sure they would love to know that you will hate the work. We here at Cisco are versed in the web." • Needless to say, the offer was rescinded. • David B. Wilson, Social Media and the Workplace: What's an Employer to Do?, BENDER'S CAL. LAB. & EMPL. BULLETIN (March/April 2010). • Identify employees who are permitted to speak on behalf of the company via social media. • Remind employees that they are not allowed to speak on behalf of the company unless expressly authorized by appropriate leadership. • Employees commenting about the company's products or services must disclose their affiliation with the company. 41
  • 42. Training Employees on the Company's Social Media Policy Training cont. •Remind employees that posting on the internet is forever (remember - The Way Back Machine). •Discuss connection between social media policies and other policies (e.g., anti- harassment, internet and email usage, codes of conduct). •Reserve the right to monitor employees' public social media postings (remember - in many states, you cannot require employees to disclose their passwords). •Employees should be put on notice that there is no expectation of privacy with regard to posts the employee writes, transmits or stores using the company's devices, server or resources. • Advise of dangers of disclosing confidential or proprietary information. •Policy should be disseminated, easily accessible to employees and updated regularly in order to capture the latest trends and developments. 42
  • 43. Social Media Policies - Employer Considerations • Issues Employers Should Consider in the Social Media Context: • Having a policy in place will help protect the company's brand. • Consistent application and enforcement of your company's policy is key. • Improves employer's chances of defending its actions/policies. • Make sure someone is appointed to monitor social media and be in charge of the social media policy, as the law is constantly changing. • Designate someone from Human Resources or the Legal Department. • If negative or concerning posts go up, make sure to act quickly. • Immediately remove posts from pages the company controls. • Ask third parties to remove unfavorable posts. • Talk to employees about unfavorable posts (but make sure you do not violate the employee's rights under the Act). • Consider including provisions in your social media policy that prohibits use of company hardware or software for blog creation and the like. 43
  • 44. Social Media Policies - Employee Considerations • Issues Employees Should Consider in the Social Media Context: • The implications of listing your employer in your social media profiles. • Employment-related posts (traveling, meetings, etc.). • Think: Competitors. • Be cautious about posting anything about vendors or customers. • Un-tagging and deleting inappropriate posts and photographs. • Regulate who is permitted to post on your social media websites and require your approval before comments, photographs and other material can go up. • If an employee speaks about her company in a post, the employee should express that the perspective is her own and not posted on behalf of the company. 44
  • 45. Take-Aways • Remember: It's Constantly Evolving: Social media rules, regulations and standards are constantly evolving. It is important to make sure you are informed of the governing rules and statutes and that your company has a social media policy in place. • Careful Policy Drafting: Even the slightest variations in policy language will differentiate between a policy that the NLRB will deem acceptable and one it will deem unacceptable. Make sure you review approved and unapproved policies when drafting your company's policy. Consult legal counsel! • Employee Training and Information Sessions: It's not enough to have a written policy. Train your employees or host a brief information session advising of your company's social media policies and expectations. 45
  • 46. © 2014 Dentons Dentons is an international legal practice providing client services worldwide through its member firms and affiliates. This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Please see dentons.com for Legal Notices. Thank you! Kate Douglas and Rachel Milazzo Dentons US LLP One Metropolitan Square 211 North Broadway, Suite 3000 St. Louis, MO 63102