The New FrontierHow Employers Can Respond to Employee Use      of Technology and Social Media                             ...
CLE Number: 901248938CPA Number: 010018SHRP Number: 119578
PURPOSETo update Registrants on Rapidly Evolving                 Events This presentation is not legal advice
1. Monitoring Data and Limits on Company Regulation   of Social Media2. Protecting Confidential Information and New Legal ...
TOPIC ONE:MONITORING AND LIMITS ON COMPANY  REGULATION OF SOCIAL MEDIA
ISSUE 1What are the legal limitations on employers’ right to monitor/read employees’ electronic communications?
General Rule – May monitor so long as do not intercept, steal, or deceive to gain access Do not intercept electronic tran...
Electronic Communication Protection Act       (Stored Communications Act) Do not use coercive or deceptive means  to acce...
Invasion of PrivacyMake sure to have proper policy that informs employees the employer has right to and will monitor/acces...
ISSUE 2What limitations does NLRA impose on an employer’s right to discipline employees for improper social media posts?
NLRB RULENot Applicable To:     Public Sector Employees        Agricultural laborers     Independent contractors     S...
What is “Protected, Concerted              Activity” Under NRLA?1. When two or more employees ask employer   about improvi...
The NLRB is committed to spreading theword about non-union employees’ rights tochallenge discipline/discharge for engaging...
Examples of Illegal Discipline for Engaging in Protected,Concerted Conduct (According to NLRB General Counsel):1.Facebook ...
Examples of Illegal Provisions in Social Media Policies(According to NLRB General Counsel):1.Requirement that posts “be co...
4. “Offensive, demeaning, abusive remarks not    allowed.”5. “Think carefully before friending co-workers.”6. “Report any ...
8. “When on-line, do not ‘pick fights’ and   avoid controversial topics; use   professional tone.”9. “Before resorting to ...
10. “Avoid harming image and integrity of    company.”11. “Do not express opinion to public about    workplace satisfactio...
Examples of Legal Provisions in Social MediaPolicies (According to NLRB General Counsel):1.“Be fair and courteous.”2.“It i...
3. “Be honest and accurate when posting   information.”4. “Express personal opinions only. Do not   represent yourself as ...
CONCLUSION1.   By all means monitor electronic communications but     maintain correct policies and not intercept, steal o...
TOPIC TWO:  PROTECTING CONFIDENTIALINFORMATION AND NEW LEGAL        LIMITATIONS
CRIMINAL LAWS
Five Basic Policy Provisions to Protect            Confidentiality
1. Each employee has a duty to safeguard  and protect company technology  resources
2. The unauthorized taking or disclosure of   data is prohibited
3. Unauthorized destruction of data is   prohibited
4. Passwords are confidential, and one   employee may not use another   employee’s password
5. Business may not be conducted in a   database not owned by the company
Three Questions that will Impact Your   Ability to Maintain Confidentiality
1. Do you allow employees to bring   personal electronic devices to work?
2. Do you hold employees accountable   for keeping track of mobile company   storage devices?
3. Will telecommuting be allowed?
POSSIBLE DETERRENCE:Inform employees that the company may  review a computer and determine each   time information was dow...
Consider Confidentiality Agreements
NATIONAL LABOR RELATIONS BOARDAND COMPANY POLICIES PROTECTING    CONFIDENTIAL INFORMATION
RATIONALE Company Policies to Protect Confidential Information Must Not Chill Statutory Right   of Union and Non-union Emp...
May 30, 2012 NLRB Acting General Counsel issuedSummary of Policies that May and May Notbe Lawfully Adopted to Protect Conf...
“You should never share confidentialinformation with a team member unless     they have a need to know the       informati...
Employees may not post confidential information like “company performance,    contracts, customer wins or losses,maintenan...
“If you need to share confidential information      with someone outside the company,   confirm that there is a proper aut...
“Do not have conversations regardingconfidential information in the break room       or in any other open area.”
“Never discuss confidential information at         home or in pubic areas.”
Do not reveal non-public information   including “Any topic related to thefinancial performance of the company.”
Do not reveal non-public information which   includes “Personal information about   another employee, such as his or her  ...
“Do not comment on any legal matters, including pending litigation or disputes.”
“Maintain the confidentiality of [employer]  trade secrets and private or confidential  information. Trade secrets may inc...
“Develop a healthy suspicion…Be suspicious  if asked to ignore identification procedures.”
SAVINGS CLAUSE“This policy will not be construed or applied  in a manner that improperly interferes with     employees’ ri...
TOPIC THREEPOLICY CONTENT:TEN KEY SUBJECTS
PRELIMINARY ASSESSMENT 1. What is your Need? 2. How many Policies?
1. Ownership and its Absence1. Ownership and its Absence
2. Business Use Only?2. Business Use Only?   Non-Business Use?                        Non-Business Use?
3. Expectation of Privacy?3. Expectation of Privacy?
4. Security and Protection of the Company’s Data4. Security and Protection of the Company’s Data
5. Solicitations5. Solicitations
6. Prohibited Content, Prohibited Activities, Deportment6. Prohibited Content, Prohibited Activities, Deportment          ...
7. Limits or Restrictions on Personal Use of Social Media7. Limits or Restrictions on Personal Use of Social Media
8. Compliance with Current and Future Requirements8. Compliance with Current and Future Requirements
9. Training and Acknowledgements9. Training and Acknowledgements
10. Enforcement10. Enforcement
QUESTIONS
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  • Overbroad and illegal because employee could construe the rule as prohibiting discussion of conditions of employment
  • Unlawful. Restricts employee discussion about terms of potential relevance in collective bargaining.
  • Unlawful. Employees could construe the rule as prohibiting discussion of conditions of employment. Also, requiring authorization or pre-approval is almost always unlawful under the NLRA
  • Unlawful. Employees could construe the language as prohibiting discussion of conditions of employment.
  • Unlawful. Employees could construe the language as prohibiting discussion of conditions of employment. An argument could be made that the language would have been lawful if “confidential information” had been defined to exclude wages, hours and working conditions about which union might negotiate.
  • Unlawful. Financial performance relates to wages, hours and terms of working conditions. The language would reasonable be construed by employees as precluding them from discussing terms of employment with co-workers and non-workers, i.e., union organizers
  • Unlawful because it relates to wages, hours and terms of working conditions. Employees would reasonable construe the policy as precluding them from discussing working conditions with co-workers or non-workers.
  • Unlawful. It restricts employees from discussing protected subjects, like potential claims against the employer.
  • Lawful. Employees would not reasonable construe the language as precluding communications about conditions of employment of potential relevance in collective bargaining.
  • Lawful. Employees would not construe this as prohibiting discussion of conditions of employment
  • Insufficient. Employees would not understand that the protected activities are in fact permitted.
  • The New Frontier: How Employers Can Respond to Employee Use of Technology and Social Media

    1. 1. The New FrontierHow Employers Can Respond to Employee Use of Technology and Social Media 6/27/2012 Henry Robinson, Partner Chris Howe, Partner Chair of Labor & Employment Labor & Employment henry.robinson@kellyhart.com chris.howe@kellyhart.com P (817) 878-3558 P (871) 878-3568
    2. 2. CLE Number: 901248938CPA Number: 010018SHRP Number: 119578
    3. 3. PURPOSETo update Registrants on Rapidly Evolving Events This presentation is not legal advice
    4. 4. 1. Monitoring Data and Limits on Company Regulation of Social Media2. Protecting Confidential Information and New Legal Limitations3. Policy Content: Ten Key Subjects4. Questions
    5. 5. TOPIC ONE:MONITORING AND LIMITS ON COMPANY REGULATION OF SOCIAL MEDIA
    6. 6. ISSUE 1What are the legal limitations on employers’ right to monitor/read employees’ electronic communications?
    7. 7. General Rule – May monitor so long as do not intercept, steal, or deceive to gain access Do not intercept electronic transmissions in transit Do not steal employee personal passwords Do not deceive people to gain access
    8. 8. Electronic Communication Protection Act (Stored Communications Act) Do not use coercive or deceptive means to access invitation only social media chat groups Do not gain access to an employee’s password protected private e-mails on commercial service
    9. 9. Invasion of PrivacyMake sure to have proper policy that informs employees the employer has right to and will monitor/access electronic communications
    10. 10. ISSUE 2What limitations does NLRA impose on an employer’s right to discipline employees for improper social media posts?
    11. 11. NLRB RULENot Applicable To:  Public Sector Employees  Agricultural laborers  Independent contractors  Supervisors  Employees of employers subject to RLA (railroads and airlines)
    12. 12. What is “Protected, Concerted Activity” Under NRLA?1. When two or more employees ask employer about improving pay or any other working conditions2. When two or more employees discuss pay or any other working conditions3. When one employee speaks to employer on behalf of one or more co-workers about improving pay or other working conditions
    13. 13. The NLRB is committed to spreading theword about non-union employees’ rights tochallenge discipline/discharge for engagingin protected, concerted conduct:1.Posting rule2.New website3.Publicity campaign
    14. 14. Examples of Illegal Discipline for Engaging in Protected,Concerted Conduct (According to NLRB General Counsel):1.Facebook postings among employees complaining abouta co-worker’s criticisms of them (Hispanics United).2.Facebook posting by employee to co-workers labelingsupervisor in essence a “psycho.”3.Facebook complaints by employees to one another aboutthe employer’s mistake on tax withholding, includingcomment that owner was an “asshole.”
    15. 15. Examples of Illegal Provisions in Social Media Policies(According to NLRB General Counsel):1.Requirement that posts “be completely accurate and notmisleading.”2.“If in doubt about whether posting violates policy, checkwith legal department.”3.“Do not post any company logos, photos, videos orothers’ personal information without obtaining permission ofowners.”
    16. 16. 4. “Offensive, demeaning, abusive remarks not allowed.”5. “Think carefully before friending co-workers.”6. “Report any inappropriate social media postings.”7. “Do not comment on any legal matters.”
    17. 17. 8. “When on-line, do not ‘pick fights’ and avoid controversial topics; use professional tone.”9. “Before resorting to social media about work concerns, you are encouraged to go first to co-workers, supervisors and managers.”
    18. 18. 10. “Avoid harming image and integrity of company.”11. “Do not express opinion to public about workplace satisfaction or dissatisfaction.”
    19. 19. Examples of Legal Provisions in Social MediaPolicies (According to NLRB General Counsel):1.“Be fair and courteous.”2.“It is more likely you will resolve work issues byspeaking directly with co-workers or using theopen door policy – but if you do use social media,avoid statements, photos or videos that couldreasonably be viewed as malicious, obscene orthreatening, or that disparages customers orsuppliers or that is bullying or harassing.”
    20. 20. 3. “Be honest and accurate when posting information.”4. “Express personal opinions only. Do not represent yourself as a company spokesman.”5. “Do not use social media at work without authorization.”
    21. 21. CONCLUSION1. By all means monitor electronic communications but maintain correct policies and not intercept, steal or deceive to gain access.2. Be careful about disciplining employees who have posted complaints about pay or any other working conditions.3. Make sure social media policy does not contain obvious illegal provisions under NLRA.
    22. 22. TOPIC TWO: PROTECTING CONFIDENTIALINFORMATION AND NEW LEGAL LIMITATIONS
    23. 23. CRIMINAL LAWS
    24. 24. Five Basic Policy Provisions to Protect Confidentiality
    25. 25. 1. Each employee has a duty to safeguard and protect company technology resources
    26. 26. 2. The unauthorized taking or disclosure of data is prohibited
    27. 27. 3. Unauthorized destruction of data is prohibited
    28. 28. 4. Passwords are confidential, and one employee may not use another employee’s password
    29. 29. 5. Business may not be conducted in a database not owned by the company
    30. 30. Three Questions that will Impact Your Ability to Maintain Confidentiality
    31. 31. 1. Do you allow employees to bring personal electronic devices to work?
    32. 32. 2. Do you hold employees accountable for keeping track of mobile company storage devices?
    33. 33. 3. Will telecommuting be allowed?
    34. 34. POSSIBLE DETERRENCE:Inform employees that the company may review a computer and determine each time information was downloaded or uploaded
    35. 35. Consider Confidentiality Agreements
    36. 36. NATIONAL LABOR RELATIONS BOARDAND COMPANY POLICIES PROTECTING CONFIDENTIAL INFORMATION
    37. 37. RATIONALE Company Policies to Protect Confidential Information Must Not Chill Statutory Right of Union and Non-union Employees to Communicate for their mutual aid aboutterms and conditions of employment (terms and conditions generally limited to wages, hours and working conditions)
    38. 38. May 30, 2012 NLRB Acting General Counsel issuedSummary of Policies that May and May Notbe Lawfully Adopted to Protect Confidential Information
    39. 39. “You should never share confidentialinformation with a team member unless they have a need to know the information to do their job.”
    40. 40. Employees may not post confidential information like “company performance, contracts, customer wins or losses,maintenance, customer plans, shutdowns,work stoppages, cost increases, customer news….”
    41. 41. “If you need to share confidential information with someone outside the company, confirm that there is a proper authorization to do so.”
    42. 42. “Do not have conversations regardingconfidential information in the break room or in any other open area.”
    43. 43. “Never discuss confidential information at home or in pubic areas.”
    44. 44. Do not reveal non-public information including “Any topic related to thefinancial performance of the company.”
    45. 45. Do not reveal non-public information which includes “Personal information about another employee, such as his or her medical condition, performance, compensation or status in the company.”
    46. 46. “Do not comment on any legal matters, including pending litigation or disputes.”
    47. 47. “Maintain the confidentiality of [employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, procedures or other internal business-related confidential communications.”
    48. 48. “Develop a healthy suspicion…Be suspicious if asked to ignore identification procedures.”
    49. 49. SAVINGS CLAUSE“This policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.”
    50. 50. TOPIC THREEPOLICY CONTENT:TEN KEY SUBJECTS
    51. 51. PRELIMINARY ASSESSMENT 1. What is your Need? 2. How many Policies?
    52. 52. 1. Ownership and its Absence1. Ownership and its Absence
    53. 53. 2. Business Use Only?2. Business Use Only? Non-Business Use? Non-Business Use?
    54. 54. 3. Expectation of Privacy?3. Expectation of Privacy?
    55. 55. 4. Security and Protection of the Company’s Data4. Security and Protection of the Company’s Data
    56. 56. 5. Solicitations5. Solicitations
    57. 57. 6. Prohibited Content, Prohibited Activities, Deportment6. Prohibited Content, Prohibited Activities, Deportment and Acceptable Use and Acceptable Use
    58. 58. 7. Limits or Restrictions on Personal Use of Social Media7. Limits or Restrictions on Personal Use of Social Media
    59. 59. 8. Compliance with Current and Future Requirements8. Compliance with Current and Future Requirements
    60. 60. 9. Training and Acknowledgements9. Training and Acknowledgements
    61. 61. 10. Enforcement10. Enforcement
    62. 62. QUESTIONS

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