Facebook and Twitter and LinkedIn, Oh My: The Employment Law Implications of Social Networking

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What employers should and shouldn't do to monitor and control their employees' work-related social media use, and what employers should and shouldn't do to effectively use social media in connection …

What employers should and shouldn't do to monitor and control their employees' work-related social media use, and what employers should and shouldn't do to effectively use social media in connection with their own labor and employment practices.

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  • 1. Facebook and Twitter and LinkedIn, Oh My: The Employment Law Implications of Social Networking Aisha Sanchez, Associate Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP
  • 2. Moderator Becky Ross Marketing Manager (303) 228-8753 bross@kpaonline.com
  • 3. Presenter Aisha Sanchez Associate Ford and Harrison, LLP asanchez@fordharrison.com
  • 4. Presenter Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP atanick@fordharrison.com
  • 5. Overview • Pre-Employment Considerations • Current Employee Considerations • Looking Forward
  • 6. Brands Employer as •Progressive •Relevant •Informed Professional Networking •Enhanced knowledge •Broadened thinking •Better work product Provides Employees •Positive Distraction •Incubation time •Information Increased (if allowed) or Decreased (if banned) Employee Engagement Employer Branding Promotes Creativity Professional Networking Employee Engagement
  • 7. Pre-Employment Considerations Efficient and Prudent Recruitment
  • 8. Pre-Screening Hypothetical • John, in HR, is about to make a final offer to a candidate for the position of VP of Sales, managing a sales team of 50 people across the Southeast and involving significant travel. The company will provide him a company car and an expense account. John looks on Facebook to see if the candidate has an online presence . . .
  • 9. This is what John finds… • My hobbies are partying and drinking…
  • 10. Pre-Employment: Risks • Too much information! • Inconsistent or unnecessary screening • Disparate search results (i.e., uncommon/“un-American” names) • Violation of sites’ terms of use • “I interviewed on Monday, you looked at my page on Tuesday, you rejected me on Wednesday?”
  • 11. Hiring Safety Nets Best Practices for Online Candidate Research
  • 12. Online Candidate Research: Best Practices • Develop policies/procedures to ensure consistent application and proper documentation • Compare what you discover with questions you could and would ask in an interview • Review applicable terms of service • Use online vetting as late in the hiring process as possible • Use EEOC guidance on background checks as model • Consider giving notice to applicants • Outsource initial vetting
  • 13. Current Employees You Hired Them . . . Now What?
  • 14. 0 5 10 15 20 25 30 35 40 45 What will my boss think? What will my colleagues think? What will my clients think? Always consider Sometimes consider Rarely/Never consider Don't Know/Refuse Employees Report on Workplace Considerations Made while Online Source: Deloitte LLP 2009 Ethics & Workplace Survey
  • 15. Protecting the Workplace & Business Interests • Protect Company Reputation • Protect Trade Secrets • Avoid Third-Party Liability • Provide Prompt and Remedial Response to Harassment
  • 16. Protecting Company Reputation • “Do I agree with [Yahoo’s] practices? No. Do I like those practices? Hell no. It’s insulting and disrespectful.” • Fast food workers post YouTube video of themselves contaminating customer food. • New England Patriots cheerleader fired for provocative Facebook photos. • CNN fired Middle Eastern editor for her tweet admiring a late cleric affiliated with Hezbollah.
  • 17. Poor Reflections: The “Queen of Sky” • An airline employee, Eileen, “Queen of Sky,” posted these pictures of herself, in uniform, on her blog • Make that “former employee”
  • 18. Protecting Company Trade Secrets
  • 19. Avoiding Third-Party Liability • Employees divulging customer/client/patient personal information • Employees defaming competitors’ products, services, and business models • Employers reducing exposure in negligent retention claims
  • 20. Protecting Employees From Harassment • Online harassing communications might be considered more “severe and pervasive” than analog forms • If subjects of such online harassment inform their employer, the employer should take prompt remedial action in response
  • 21. Examples: Anti-Coworker “So I hate my co-workers. Well, not hate but extreme dislike. I have this one co- worker who has absolutely no manners at all …” Posted by “SingleMomKnits” – Fitchburg, MA, United States – I am 31 years old. I am a wife (to Ryan, my high school sweetheart)…
  • 22. Examples: “Pro”-Coworker “I consider myself a happily married man, 41 years of age. … I recently developed a crush on a co-worker who is about 15 years younger than me. …” Posted by “Raisalongi”
  • 23. Very “Pro”-Coworker “I’ve been working with these two girls every day for four years and every day I want to have crazy sex with at least one of them. I want them to [expletive deleted] me and [expletive deleted]. … How do I keep my urges in check?” Posted by “Adamhum”
  • 24. MONITORING RISKS
  • 25. Possible Claims of Employees • Whistleblower/retaliation • Wrongful termination • Non-work conduct protected (some states) • Discrimination • Protected political speech (some states) • Harassment • Privacy • Violation of NLRA or RLA
  • 26. Risk: Chilling Protected Concerted Activity • Under the NLRA, employees have a right to “engage in concerted activity for the purpose of collective bargaining or for other mutual aid and protection.” • “Protected activity” = two or more employees (or one employee with the authority of others) + relates to terms and conditions of employment • Activity that is otherwise protected may lose its protection if it is overly disruptive and “opprobrious” or shameful. • If an employee’s online activity comes within the scope of protected concerted activity under the NLRA, then it may not be the basis for discipline or termination.
  • 27. Monitoring Employees: Best Practices Social Media and Company Policy • Decide on company philosophy from outset • Revise existing policies to incorporate online conduct • EEOC and confidentiality policies apply equally to online conduct • Maintain separate social networking policy and have employees acknowledge it • State explicitly that employees have no reasonable expectation of privacy in online conduct done using employer’s resources • Require a disclaimer: “my views, not my employer’s” • Discourage supervisors from “friending” subordinates • Prohibit use of false online identities to gain access to private profiles • Apply the least intrusive monitoring possible (courts and juries prefer)
  • 28. Monitoring Employees: Best Practices Disciplining Employees • Would the content of the post constitutes grounds for discipline if it had been spoken or written in another form? • Is any other employee facing potential or real discrimination or harassment as a result of the posting? • Did or could any harm come to the company or a third party from the post? • Did the employee share confidential information about the company, another employee, a third party, or a customer? Did the post violate trade secret laws? • Does someone from the company routinely monitor employees’ social media use? In other words, could the employee make the argument that he or she was targeted in some way? • If the company has a stated policy on social media use, did this employee receive that policy? Does this conduct clearly violate that policy? • Were multiple employees engaged in the questionable conduct? • Did the post relate to the terms and conditions of employment?
  • 29. Copyright © 2011 TK Carsites. All rights reserved. www.tkcarsites.com. Got a Question? Ask our Expert! Ford & Harrison LLP Andy Tanick (612) 486-1623 atanick@fordharrison.com Aisha Sanchez (813)261-7849 asanchez@fordharrison.com