Social media, staff policy and law legal


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Some great advice on key legal issues around social media

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  • Karen
  • The court held Jasmine retained the standing to sueThe court analogizes to a victim of an automobile accident who does not need to keep her damaged vehicle until trial to recover for the damages caused by a negligent driver
  • The Court avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment under the Fourth Amendment and what particular standard ought to apply in making that determination.  It acknowledged that rapid changes in communications and the means by which information is transmitted, as illustrated by advancements in technology and what society views as proper behavior, created significant challenges to setting legal standards for the workplace that would survive the test of time.    So, the Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages and the case could be decided on narrower grounds, i.e., whether the search was reasonable under well-defined Fourth Amendment standards.
  • Social media, staff policy and law legal

    1. 1. Social Media In the Workplace and Beyond Alexander Nemiroff, Esq. Jackson Lewis, LLP 1601 Cherry Street, Suite 1650 Philadelphia, Pennsylvania 267.319.7816
    2. 2. What is “Social Media”?• MySpace • Blogs• Facebook • Digg, Reddit, Technorati• Friendster • YouTube• LinkedIn • Unvarnished• Twitter • Instant Messaging• Skype • Texting
    3. 3. Social NOTworking?• How many working hours are lost? • 50% of Facebook users log on every day • 22% visit social networking sites 5+ times/week • Only 52% of employees say they don’t use social networking sites during work hours • And that’s not counting time spent texting, instant messaging, surfing, making phone calls, etc. … Copyright 2011 Jackson Lewis LLP
    4. 4. Employee Views on Social Media Use• Survey says: • 53% of employees say their social networking pages are none of their employers’ business • 74% say it’s easy to damage a company’s reputation on social media • 15% say that if their employer did something that they didn’t agree with, they would comment about it online Copyright 2011 Jackson Lewis LLP
    5. 5. What Do Employers Do?• 40% of business executives surveyed disagree that what employees put on their social networking pages is not the employer’s business• 30% admit to informally monitoring social networking sites Copyright 2011 Jackson Lewis LLP
    6. 6. Key Legal Challenges for Employers Negligent hiring/supervision Discrimination/harassment/retaliation Disclosure of trade secrets or proprietary information Reputational harm to employees Reputational harm to employers Privacy pitfalls Legal constraints on employee discipline Copyright 2011Jackson Lewis LLP
    7. 7. Would You Hire Him as a Lifeguard? Copyright 2011 Jackson Lewis LLP
    8. 8. Do You Have the Same Response? Copyright 2011 Jackson Lewis LLP
    9. 9. Risk Factor:Negligent Hiring/Supervision/RetentionAn employer may be held liable for an employee’swrongful acts if the employer knew or had reason toknow of the risk the employment created Doe v. XYC Corp., N.J. Super. 122 (2005) • Employee was criminally charged with child pornography using a workplace computer • Court held employer had a duty to investigate and respond Copyright 2011Jackson Lewis LLP
    10. 10. Risks for Employers• Using the Web to Make Hiring Decisions • Many employers and job recruiters check out potential employees on the Web  Using search engines such as Google or Yahoo and internet sites such as, or • Some studies show more than half of employers use some kind of screening on social networking sites Copyright 2011 Jackson Lewis LLP
    11. 11. Information Found on Social Networking Sites
    12. 12. Hiring Decisions Based Upon Social Networking ActivityProblem: A search may identify an applicant’s protectedcharacteristics such as age, race, sexual orientation,marital status, arrests or other factors that should notbe considered in a hiring decision.Solution: Have a non-decision maker conduct thesearch and filter out protected information.Alternatively, hire a third party to conduct the searchand filter out protected information. Copyright 2011 Jackson Lewis LLP
    13. 13. Hiring Decisions Based Upon Social Networking Activity Guidelines for Employers on Internet Search of ApplicantsIf you are going to do these searches:  Do them consistently; towards the end of the hiring process  Screen out protected information  Verify information  Document the search; and  Determine how relevant the information is to the job Copyright 2011 Jackson Lewis LLP
    14. 14. Risk Factor: Discrimination, Harassment -Employee Use of Social Media• Electronic communications offer opportunities for misuse• Can be used as evidence to support a harassment or discrimination claim Blakely v. Continental Airlines, Inc., 164 N.J. 38 (2000) • Alleged harassment via “Crew Member Forum” • Company has duty to take effective measure to stop the conduct once it knew or should have known harassment was taking place
    15. 15. “Sexting” Concerns  20% of teens and 33% of young adults electronically sent nude photographs of themselves  39% of teens and 59% of young adults sent sexually explicit text messages Source: National Campaign to Prevent Teen and Unplanned Pregnancy, 2008 Survey Copyright 2011 Jackson Lewis LLP
    16. 16. Risk Factor: Reputational Harm to Employees  Defamation - plaintiff must prove defendant published a false statement about plaintiff that tends to harm plaintiff’s reputation  Employer can be liable if the employee had apparent authority to speak on its behalf – Beware of personal references!! Copyright 2011Jackson Lewis LLP
    17. 17. Risk Factor: Reputational Harm to Employers Employees posting videos and photographs damaging to company’s image Former employee slamming company’s system with disparaging e-mails Former employees “cyber-smearing” employer Copyright 2011Jackson Lewis LLP
    18. 18. Is this the Image You Want for Your Company? Copyright 2011 Jackson Lewis LLP
    19. 19. How about this one? Copyright 2011 Jackson Lewis LLP
    20. 20. Not Laughing Now Copyright 2011 Jackson Lewis LLP
    21. 21. Risk Factor: Employee Discipline National Labor Relations Act oEmployees who IM or blog about their working conditions or employers may be protected under the NLRA o Employees have a right to engage in "concerted activity“ for the purpose of collective bargaining or other mutual aid or protection o Applies to both union and non-union employees Copyright 2011Jackson Lewis LLP
    22. 22. Legal Constraints on Disciplining Employees for OnlineActivityUnlawful Restrictions: Statement that prohibits the sharing of information concerning other employees, such as wages, hours and terms and conditions of employment.Lawful Restrictions: o Prohibition on disclosing confidential company business information and documents; Prohibition on disclosing “confidential” employee information; o Prohibition of conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with the Company’s employees. 22 Copyright 2011 Jackson Lewis LLP
    23. 23. Legal Constraints on Employee Discipline:NLRA What is protected activity: • Kiewitt Power Constructors Co., 355 NLRB No. 150 (8/27/10) Held two employees complained to their supervisor regarding the location of where they were required to take their breaks and then told the supervisor the situation could “get ugly” and supervisor had “better bring [his] boxing gloves” engaged in protected concerted activity under the Act because the statements were spontaneous and not outright threats. • Plaza Auto Center, Inc. 355 NLRB No. 85 (8/16/10) Held that a salesperson who shouted at his employer’s owner that he was a “f…ing crook” and an “a..hole” during a meeting with management to discuss pay and commissions, among other things, was engaged in protected concerted activity at the meeting and that his outburst was not so egregious so as to lose the protection under the Act. 23 Copyright 2011 Jackson Lewis LLP
    24. 24. Other Outlets for the Disgruntled Employee Copyright 2011 Jackson Lewis LLP
    25. 25. Risk Factor: Employee Discipline Expression of political opinions (e.g. New Jersey) Legal off-duty activities (e.g. California, Colorado, Connecticut, New York) Wrongful termination in violation of public policy (arrests, convictions, bankruptcy, workers’ compensation history) Whistleblowing (SOX, Wage & Hour) Copyright 2011Jackson Lewis LLP
    26. 26. Risk Factor: Federal Wiretap Act Prohibits “interception” of electronic communications Most courts hold that acquisition of electronic communications must occur contemporaneously with transmission Is monitoring of Instant Messages “interception”? Copyright 2011Jackson Lewis LLP
    27. 27. Risk Factor:Federal Stored Communications ActPrevents employers from using illicit or coercive means toaccess employees’ private electronic communicationsPietrylo v. Hillstone Rest. Group, 29 I.E.R. Cases 1438 (D.N.J.2009)Jury verdict for employees under the Stored CommunicationsAct, 18 U.S.C. 2701(a)(1), affirmed by federal court wheremanagers accessed employee’s blog.Employees of Houston’s restaurant maintained an invitation-onlychat room (the “Spec-Tater”) on MySpace for fellow employees to“vent” about their work experiences. It became populated withcomplaints about the restaurant, customers, and supervisors.One employee told supervisors about the site and they asked forher password. Copyright 2011Jackson Lewis LLP
    28. 28. Pure PowerBootCamp v. WarriorFitnessBootCampLLC (2nd Cir., 2011) Accessing Personal E-mails Can Violate Federal Stored Communications Act Even With No Actual Damages Two employees left to start competing fitness facility. Pure Power learned through 546 e-mails from four personal accounts belonging to the former employees (e.g. Hotmail) that former employees had taken customer lists, training and instruction materials, and solicited customers. How? The former employees had stored their usernames and passwords on company’s computers. Employees countersued under SCA -- $1,000 per count Copyright 2011 Jackson Lewis LLP
    29. 29. Employee Monitoring and Privacy Issues• Key question: Did the employee have a reasonable expectation of privacy in the electronic communication?• Ensure monitoring is: • based on legitimate needs, and • limited in scope to achieve those needs Copyright 2011Jackson Lewis LLP
    30. 30. It’s Amazing What Folks Put on the Internetfor Everyone to See Copyright 2011 Jackson Lewis LLP
    31. 31. It’s Amazing What Folks Put on the Internetfor Everyone to See Copyright 2011 Jackson Lewis LLP
    32. 32. WHAT?? Copyright 2011 Jackson Lewis LLP
    33. 33. Employee Monitoring and Privacy Issues Courts are more likely to rule for the employer if: o Employer owns the computer and e-mail system o Employee voluntarily uses an employer’s network o Employee has consented to be monitored (usually based in written personnel policy) Copyright 2011Jackson Lewis LLP
    34. 34. Employee Monitoring and Privacy Issues Currently unclear if an employee has a reasonable expectation of privacy in blogs or IMs Courts have split on whether there is a reasonable expectation of privacy in content maintained on third-party servers (e.g., web-based e-mail accounts) Copyright 2011Jackson Lewis LLP
    35. 35. Is There a Right to Privacy in Email, Texts, and Communications on Employer Systems?• In a unanimous decision, the U.S. Supreme Court held that the City of Ontario’s review of transcripts of an employee’s text messages sent and received on a City-issued pager was a reasonable search under the Fourth Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No. 08-1332 (June 17, 2010).• The Court disposed of the case on narrow grounds, preferring to avoid the risks of establishing "far-reaching premises" before the role of technology in society and its Fourth Amendment implications becomes clear.”• Nevertheless, the Supreme Court outlined principles instructive to all employers that allow employees to use electronic communications devices, including cell phones, i-Phones, and Blackberries. Copyright 2011 Jackson Lewis LLP
    36. 36. Policy Guidance from QuonAll employers must be prepared with comprehensivecomputer and electronic equipment usagepolicies. The Court noted that these policies will helpshape an employee’s expectation of privacy. Further,it is critical that practices and policies be consistent,reflect current technologies, and be clearlycommunicated.Employers also should consider requiring employeesto acknowledge in writing that they received andreviewed these and similar policies and procedures,particularly as new technologies are introduced. Copyright 2011 Jackson Lewis LLP
    37. 37. Methods to Minimize Risk• Develop a written policy regarding access by HR and hiring managers to applicant and employee social networking sites• Train HR and IT personnel responsible for monitoring and using electronic information on: • Avoiding improper access • Screening out information that cannot be lawfully considered in hiring and disciplinary decisions Copyright 2011 Jackson Lewis LLP
    38. 38. Methods to Minimize Risk• Prohibit access to private password social networking sites without proper authorization• Do not allow any third party to “friend” an applicant to gain access to the applicant’s site• Ensure employment decisions are made based on lawful, verified information Copyright 2011 Jackson Lewis LLP
    39. 39. Methods to Minimize Risk• Consider restriction on professional references via LinkedIn• Consider blocking or limiting employee access to social networking sites through company computers Copyright 2011 Jackson Lewis LLP
    40. 40. Drafting an Effective E-Mail and Internet Use Policy
    41. 41. Key Elements of Electronic Communications Policies Consider company philosophy and business No expectation of privacy when using company equipment Employees must abide by non-disclosure and confidentiality policies and agreements Copyright 2011Jackson Lewis LLP
    42. 42. Key Elements of Electronic Communications Policies Only individuals officially designated may speak on behalf of the Company “Bloggers Beware” - Require a disclaimer: “The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.” Copyright 2011Jackson Lewis LLP
    43. 43. Key Elements of Electronic Communications Policies Company policies governing corporate logos, branding, and identity apply to all electronic communications Employees may not make defamatory comments when discussing the employer, co- workers, products, services and/or competitors Based on the FTC’s endorsement guidelines, require employees to obtain prior approval before referring to company products and services and to disclose the nature of the employment relationship Copyright 2011Jackson Lewis LLP
    44. 44. Key Elements of Electronic Communications Policies• Do not prohibit employees from discussing terms and conditions of employment• If allowed at work, time spent social networking, blogging or texting should not interfere with job duties• Remind employees expected to comport themselves professionally both on and off duty Copyright 2011 Jackson Lewis LLP
    45. 45. Terms of an Effective E-Mail and Internet Use Policy• Employer should REVIEW AND REVISE policies regularly – Need to put date on each revision• Employer should ACTUALLY MONITOR use of the system and devices to maintain and protect policy’s integrity – Guard against violations and inconsistent use Copyright 2011 Jackson Lewis LLP 46
    46. 46. Employer Overreaching• The Town of Bozeman, Montana, required job applicants to provide passwords to email (Google, Yahoo!) and social networking sites (MySpace, Facebook) accounts.• 98% of people polled believed this policy to be an invasion of privacy• On June 22, 2009, the town rescinded the policy Copyright 2011 Jackson Lewis LLP
    47. 47. 48Copyright 2011 Jackson Lewis LLP