Social Media: "Friend" or "Foe?"

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One in seven people in the world use Facebook, many of them now on their smart phones and tablets. Despite this statistic, there are some who believe that social media is, more often than not, a colossal waste of time fraught with too much uncertainty. Text messages have sometimes been discounted as nothing more than teen chatter. But, like attitudes toward e-mail before it, that view overlooks how social networking tools and text messaging are changing the way we communicate as a business with our customers and our employees. And too often the compliance issues and legal concerns are used as an excuse to disengage from social media. Firewalls are put up, but are they hurting your business (if they even work in the first place)?

In this keynote address, attorney Daniel Schwartz -- an ABA Journal “Legal Rebel” and
award-winning blog author -- will try to put compliance issues and legal risks in context while discussing the ways social media tools can be used in the workplace and the implications for businesses. After all, if you don’t consider using these tools, what advantages are you giving to your competitors who will?

Presented by: Daniel A. Schwartz, Member of the Firm, Pullman & Comley
A member of Pullman & Comley’s Labor & Employment practice, Dan has extensive trial and litigation experience in both the federal and state courts in a variety of areas, and represents employers in various employment law matters. Since 2007, he has been publishing the Connecticut Employment Law Blog to cover new and noteworthy developments in employment law in Connecticut and provide a forum for further debate and exploration of these issues. Since the blog’s inception, it has received nearly two million views.

Dan is listed in Chambers USA, America’s Leading Lawyers to Businesses in the area of labor and employment and was named to the Connecticut Super Lawyers list in 2011/2012 and listed in The Best Lawyers in America 2013. He was a recipient of the “40 under 40” Award from the Hartford Business Journal in 2010 and in 2009, was named by the ABA Journal as one of only 50 “Legal Rebels” nationwide - attorneys who are bringing innovation and new ideas to the legal profession. Dan is a frequent presenter on a wide range of employment law and commercial litigation topics.

http://www.pullcom.com/

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Social Media: "Friend" or "Foe?"

  1. 1. Social Media:Friend or FoeThe Legal Issues EveryExecutive Needs To KnowDaniel A. SchwartzMay 16, 2013
  2. 2. The Status of Social Media Now?OMG! Cutest Lion Cub Ever!LOL!© 2013 Pullman & Comley LLC2
  3. 3. Cats & KidsCute Kids AND Cute Cats!© 2013 Pullman & Comley LLC3
  4. 4. And Yet, Ignore at Your Own PerilFacebook – One Billion½ come back daily3.2 Billion L&C DailyTwitter – 150 (or 500?) + MillionLinkedIn – 200+ MillionAnd Growing Every Day© 2013 Pullman & Comley LLC
  5. 5. Resistance is Futile© 2013 Pullman & Comley LLC5
  6. 6. Don’t Get Upset© 2013 Pullman & Comley LLC6
  7. 7. Think Logically© 2013 Pullman & Comley LLC7
  8. 8. Gratuitous Star Trek Slide© 2013 Pullman & Comley LLC8
  9. 9. Going Viral Without Getting Sick© 2012 Pullman & Comley LLC9
  10. 10. 100,000 Views? Wow.© 2012 Pullman & Comley LLC10
  11. 11. Overview Developing a social media policy How do you respond to an employee that takessocial media into his or her own hands What the legal risks are with using social mediafor brand management Owning the Accounts Takeaways© 2013 Pullman & Comley LLC11
  12. 12. Future is Now© 2013 Pullman & Comley LLC12
  13. 13. Yet, Future is Never the Same© 2013 Pullman & Comley LLC13
  14. 14. Maturing Social Media Pew Research: 34 percent surveyed say they spend less time onFacebook but… Overall time in social media is up over 38%, says Nielsen© 2013 Pullman & Comley LLC14
  15. 15. Why is Social Media So Scary?© 2013 Pullman & Comley LLC
  16. 16. About Those Firewalls…
  17. 17. Areas Of Development Recruitment and selection Socialization and onboarding Training and development Knowledge sharing and transfer Branding and marketing Creativity and problem solving Influencing organizational culture• Source: SHRM© 2013 Pullman & Comley LLC17
  18. 18. Issue #1Social Media Policies© 2013 Pullman & Comley LLC
  19. 19. NLRB = Borg?© 2013 Pullman & Comley LLC
  20. 20. You Will Be Assimilated© 2012 Pullman & Comley LLC20“Section 7” of 9
  21. 21. National Labor Relations ActRIGHTS OF EMPLOYEESSec. 7. Employees shall have the right to self-organization, to form,join, or assist labor organizations, to bargain collectively throughrepresentatives of their own choosing, and to engage in otherconcerted activities for the purpose of collective bargaining or othermutual aid or protection, and shall also have the right to refrainfrom any or all such activities….© 2013 Pullman & Comley LLC
  22. 22. NLRB’s Prime Directive• Two types of issues:• Retaliation for engaging inonline conduct• Overbroad employer policythat “chills” speech• Both fall within Section 7• Cases being brought againstnon-union employers© 2013 Pullman & Comley LLC
  23. 23. Policy Cases - NLRBDoes policy prohibit employees from discussing amongthemselves or others, issues of terms & conditions ofemployment?• Or, does it use broad vague terms that could be seenby employees as restrictions?© 2013 Pullman & Comley LLC
  24. 24. Examples of Policies - Illegal• Forbidding employees from making“disparaging comments about the companythrough any media, including online blogs,other electronic media or through the media.”• A policy that “employees should generallyavoid identifying themselves as the employer’semployees unless discussing terms andconditions of employment in an appropriatemanner.”• Prohibiting employees from using social mediafor “unprofessional communication that couldnegatively impact the Employer’s reputation orinterfere with the Employer’s mission orunprofessional/inappropriate communicationregarding members of the Employer’scommunity.”© 2013 Pullman & Comley LLC
  25. 25. Examples of Policies - Legal• Prohibiting employees from using or disclosingconfidential and/or proprietary information, includingpersonal health information about customers or patients.• Prohibiting employees from using social media to “post ordisplay comments about coworkers or supervisors or theEmployer that are vulgar, obscene, threatening,intimidating, harassing, or a violation of the Employer’sworkplace policies against discrimination….”© 2013 Pullman & Comley LLC
  26. 26. Connecticut DecisionCostco Wholesale Corporation and United Food and CommercialWorkers Union, Local 371, No. 34-CA-012421.• In Costco, the Board reviewed an employee handbook whichcontained a prohibition on electronic postings that "damagethe Company, defame any individual or damage anypersons reputation."• The Board held that the companys policy was unlawful.• Could "chill" the right of employees to engage in "protected,concerted activity."© 2013 Pullman & Comley LLC
  27. 27. The Solution?© 2013 Pullman & Comley LLC
  28. 28. Check YouTube for ExamplesZurichCitrixSodexoKPMG© 2013 Pullman & Comley LLC28
  29. 29. Implications for Companies© 2013 Pullman & Comley LLC29
  30. 30. What Else? Be transparent. Do not hide behind anonymity. Be aware of potential impact on the company. If notspeaking for company, say so. Don’t publicize confidential, proprietary information,like trade secrets and follow company policy onoutside communications. Consider adding value to a conversation.© 2013 Pullman & Comley LLC30
  31. 31. What Else? Use common sense. If you’re unsure about something, feel free to ask thePR Director for advice. Avoid commenting on anything related to legalmatters or litigation. In a crisis, refer all Social Media activity around crisistopics to PR and/or Legal Affairs Director. Remember to be aware that Google has a long memory;preserve your privacy.© 2012 Pullman & Comley LLC31
  32. 32. Issue #2Employees Behaving Badly© 2013 Pullman & Comley LLC
  33. 33. The Friendly Skies?© 2013 Pullman & Comley LLC
  34. 34. “Aluminum Lady”© 2013 Pullman & Comley LLC34
  35. 35. The Friendly Skies?© 2013 Pullman & Comley LLC
  36. 36. Starbucks Not Immune© 2013 Pullman & Comley LLC36
  37. 37. Your Problems Grow on Vines© 2012 Pullman & Comley LLC37
  38. 38. Legal Issues – Is It Protected? Doesn’t matter if its union vs. non-union Core: “Protected concerted activities” What might be protected? Wages, Management Complaints, Annual Reviews Engaged with other employees or to get action Even insulting language in social media posts may not be enoughto satisfy NLRB But actual threats do lose protection If can’t retaliate, can employer do ANYTHING with message?© 2013 Pullman & Comley LLC
  39. 39. “Other Lawful Activities”• Connecticut prohibits employers from taking action againstapplicant or employee because of smoking• Other states have similar “lawful activities” rules© 2013 Pullman & Comley LLC
  40. 40. Employee Free Speech Connecticut applies the First Amendment not only topublic employers, but to PRIVATE employers as well. Employees, in general, have a right to speak on mattersof “public concern” so long as the speech does not relateto job duties.–Employee posts about election?– Employee supports the Tea Party or Occupymovement? Employee speech about “Star Trek” not likely to beprotected but…© 2013 Pullman & Comley LLC40
  41. 41. But Star Trek + LGBT Issues?© 2012 Pullman & Comley LLC41
  42. 42. Remember Monitoring Laws! Connecticut employers aresubject to CGS Sec. 31-48 With limited exceptions,employers must providenotice to employees of thetypes of monitoring done byemployer Will looking at the employee’sonline conduct fall within thestatute? Likely Provide notice and thenGoogle all you want © 2013 Pullman & Comley LLC
  43. 43. Best Practices Think about the whole picture Just the facts Ask: What is the specific, substantial harm to the employer and theworkplace from the activity?– Realize: Overreaction may be worse than the original activity Is it protected concerted activity or does the employee have otherprotected rights (Conn. Gen. Stat. 31-51q)? Train Supervisors, Update Policies © 2013 Pullman & Comley LLC
  44. 44. Remember© 2012 Pullman & Comley LLC44
  45. 45. Issue #3BrandManagement© 2013 Pullman & Comley LLC45
  46. 46. Don’t Look Now….© 2012 Pullman & Comley LLC46
  47. 47. Debate Fodder© 2013 Pullman & Comley LLC47
  48. 48. The Apology© 2013 Pullman & Comley LLC48
  49. 49. The Incident Tweet lasted no more than 30seconds But it was viewed during thedebate by over 36,000 peopleimmediately Then Mashable, NBC, and lotsof articles follow Old media loves new media But what are the legalimplications to consider whentweeting about a brand?© 2013 Pullman & Comley LLC49
  50. 50. Social Media Fiascos© 2013 Pullman & Comley LLC50
  51. 51. More Vine Issues© 2012 Pullman & Comley LLC51
  52. 52. IP Rules STILL Apply Copyright rules exist, even for siteslike Pinterest Solutions:– Get permission– Balance legal risks– Seek alternative source– If mistake, delete and cross fingers If outsource, remember about workfor hire doctrine© 2013 Pullman & Comley LLC52
  53. 53. Defamation/Libel/Slander May be difficult to prove, but that’sbesides the point Lawsuit may be costly to defend Any obligation to remove itemsfrom a FB wall? Clarify rules of usage of a FBpage.– Who monitors?– How often?– What type of content will becensored?– Is there a mechanism to havethings removed?© 2013 Pullman & Comley LLC53
  54. 54. Issue #4Account Ownership &Related Hiring Issues© 2012 Pullman & Comley LLC54
  55. 55. Who Owns the Account?© 2013 Pullman & Comley LLC55
  56. 56. Owning the Account Clarify the ownership rules at the outset Employees should SIGN the acknowledgment of anyuse of brand social media Have multiple users Don’t presume FORMAL agreement– Not just to Twitter & Facebook, but LinkedIn Survey accounts across platforms© 2012 Pullman & Comley LLC56
  57. 57. Password Laws for Hiring California started the trend– Prohibits employer from requiring or requesting from employeeor applicant to disclose username or password for purpose ofaccessing personal social media– Prohibits employer from asking to access social media inpresence of employer– Prohibits employer from requiring person to divulge anypersonal social media information© 2012 Pullman & Comley LLC57
  58. 58. More States Have Followed CAN request info if relevant to employee misconduct only if it isto be used for purposes of that investigation CAN request or require it to access employer-issued electronicdevice Nearly ten states have passed with several more awaiting finalvotes Patchwork of solutions– Some allow for private causes of action– Some give exceptions for investigations– Some prohibit “shoulder surfing” Connecticut may pass rule soon© 2012 Pullman & Comley LLC58
  59. 59. RememberMost of the rulesgoverning onlineconduct areNO DIFFERENTthan those “in reallife”© 2013 Pullman & Comley LLC59
  60. 60. Takeaways Be aware of and understand legal risks Think before you click– Fastest may not be the best (recall Boston Marathonbombing) Three rules for social media policy– Disclose: Your presence must be transparent– Protect: Take care to protect IP and don’t walk onothers–Use Common Sense: Professional communication© 2013 Pullman & Comley LLC60
  61. 61. More Takeaways From Shift Communications: Encourage clients "toparticipate online in a respectful, relevant way thatprotects our reputation and of course follows the letterand spirit of the law." Secure your IT and social media accounts Monitor your brand online. Google Alerts, Radian6,Wildfire© 2012 Pullman & Comley LLC61
  62. 62. What’s Next? Is Facebook losing its “cool”?Yes and no. But something else will alwaystake its place Mobile phone usage should notbe underestimated © 2013 Pullman & Comley LLC
  63. 63. Closing Thoughts© 2013 Pullman & Comley LLC
  64. 64. Closing Thoughts“Act, and you shall have dinner; wait, and you shall bedinner.”© 2013 Pullman & Comley LLC64
  65. 65. Contact Information© 2013 Pullman & Comley LLC65Daniel A. SchwartzPullman & Comley, LLC90 State House SquareTel: 860.424.4359Email: dschwartz@pullcom.comwww.ctemploymentlawblog.comTwitter: @danielschwartzLike “Connecticut Employment Law Blog” on Facebook
  66. 66. BRIDGEPORT | HARTFORD | STAMFORD | WATERBURY | WHITE PLAINSwww.pullcom.com

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