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  • 1. SOCIAL MEDIA IN CALIFORNIA:How Far You Can Legally Go To Police W k ’ Online T P li Workers’ O liConduct On Facebook And Other Social Networking Sites Jason A. Weiss, Esq. Monica M. Quinn, Esq.
  • 2.  The legal risks associated with peering into applicants’ and g p g pp employees’ online activities, and best practices for minimizing potential trouble spots Best practices for using Facebook MySpace LinkedIn and Facebook, MySpace, LinkedIn, other sites to conduct “background checks” in California When you may discipline an employee or refuse to hire y y p p y someone based on the information gleaned from social networking sites Why Wh you must have a social media policy and the essential th i l di li d th ti l language to include What frontline managers and supervisors need to know g p about policing social networking sites so they don’t legally misstep under state and federal law How your organization may use and benefit from your H i i d b fi f employees’ use of social media 2
  • 3. The Increased Use of Social Media and Social Networking In February 2009 – social networking sites eclipsed personal e-mail in global reach. Facebook reports that 50% of its 350 million users access the site at least once a day. If Facebook were a country, it would be the third largest in y g the world, approaching 600 million users. Twitter users post 90 million “tweets” per day. Social media will replace email as the primary vehicle for interpersonal communications for 20 percent of business users by 2014. y 3
  • 4. The Legal Risks Associated With Peering Into Applicants and Employees’ Online Activities Applicants’ Employees Activities, and Best Practices for Minimizing Potential Trouble Spots Right to Privacy – California employees are protected by a right to privacy. Public vs. Private – The protection may vary. Fair Credit Reporting Act/Investigative Consumer p g g Reporting Act Discrimination Claims  Pre-employment inquiries – Plaintiff’s counsel may request statistical evidence of the applicant pool.  Adverse employment actions 4
  • 5. The Legal Risks Associated With Peering IntoApplicants and Employees’ Online ActivitiesApplicants’ Employees Activities, and Best Practices for Minimizing Potential Trouble Spots (cont’d.) Labor Code 96(k) – Prohibits employers from taking employment actions against employees because of lawful off-duty conduct Labor Code 232 and 232.5 – Allows employees to discuss their wages/working conditions and prevents the employer from disciplining or discharging an employee for doing so California Labor Code Sections 1101-1102 – Prohibits an employer from taking adverse action against an employee because of his or her political activities or influencing an employee’s political activities p y p 5
  • 6. Best Practices for Using Facebook, Myspace, Facebook, Myspace, LinkedIn, and Other Sites to Conduct LinkedIn “Background Checks” FCRA/ICRA – B f Before conducting any form of background d f fb k d check on an applicant, make sure to obtain the applicant’s permission to do so. Discrimination Claims  Do so in a consistent manner  Have a neutral party conduct the search  C id searching social media sites only after the Consider hi i l di i l f h initial in-person interview 6
  • 7. Best Practices for Using Facebook, Myspace, Facebook, Myspace, LinkedIn, and Other Sites to Conduct LinkedIn “Background Checks” (cont’d.) Discrimination Cl D Claims  Identify the criteria used  Discuss your findings with the applicant  Retain a record of pages viewed  Do not lie about your identity to gain information  Consult with employment counsel Privacy Claims 7
  • 8. When You May Discipline an Employee or Refuse toHire Someone Based on The Information Gleaned From Social Networking Sites Refusal to Hire – Is this discrimination? Discipline  Social Media Abuses – Employers must protect employees from h f harassment.  National Labor Relations Act – An employer’s right to take action against the employee’s conduct related to certain working conditions may be limited. • NLRB Claims Termination Due to Facebook Comments is Illegal g • Hospital Technician Fired Over Facebook Post  Health Insurance Portability and Accountability Act  BBreach of Confidentiality A h f C fid i li Agreement 8
  • 9. When You May Discipline an Employee or Refuse toHire Someone Based on The Information Gleaned From Social Networking Sites (cont’d.) Discipline  Federal Trade Commission Guidelines – December 2009 guideline creating liability for companies whose employees endorse or give testimonials about the employer’s products on social media sites without disclosure.  Defamation of Co-Workers and Others  Trade Libel of Employers and Competitors  Lanham Act - liability for “false advertising false advertising”  Sarbanes-Oxley Act, OSHA & California Labor Code Sections 1102.5-1102.8 - protect whistleblowing employees l 9
  • 10. Off Duty Conduct – Can C an Employee B Disciplined? E l Be Di i li d? Blogging  Private-sector employees do not have a constitutional right to free speech.  Under what situations can an employer discipline an employee for writing details about his or her employment in a blog? What if your employee is revealing trade secret or confidential information otherwise unknown to the public? Keep in mind also the California Labor Code provisions with respect to discussing wages, the terms and conditions of employment, working conditions, politics and whistleblowing. l ki di i li i d hi l bl i Drug Testing Moonlighting 10
  • 11. Off Duty Conduct – Can an Employee Be Disciplined? (cont’d.) Arrests and Convictions –How does the crime affects the employee’s ability to do his or her job? It is possible this employee could claim he or she was a victim of disparate impact p y p p discrimination? Engaging in Political Protests Fraternization with Subordinates – Such policies may be illegal. Smoking – California Labor Code 6404.5 requires employers to ban smoking in the workplace. g p 11
  • 12. The Essential Language to Include in Your Social M di P li S i l Media Policy Decide where your Company stands on issues first. Social Media Policy  Reasonable Personal Use – IBM’s Approach – Don’t forget about your day job d j b  All other company policies must be followed  Don’t overdo it Blogging  Not be done during working hours or using company resources.  Not permitted to disclose confidential company information  Treat others respectfully Confidential Information 12
  • 13. The Essential Language to Include in Your Social Media Policy Right to Privacy  Eliminate privacy expectations – Quon v. City of Ontario  Inform employees that the company will be regularly monitoring any company equipment  Such items are the property of the employer  You can access them with no additional prior warning  Computer Fraud and Abuse Act p  Stored Communications Act  Communications Privacy Act For All Policies  Ensure they are enforced  Be consistent  Exercise common sense, good judgment, responsibility, and staying E i dj d t ibilit d t i within legal parameters 13
  • 14. What Frontline Managers and Supervisors Need to Know About Policing Social Networking Sites so They g g y Don’t Legally Misstep Supervisor/Subordinate Relationships p p Steps to Take When You Receive Off-Duty Conduct Information  Verify the information to the extent possible; information,  If the off-duty conduct has no bearing on the employee’s job, don’t discuss the situation with the employee;  Determine if you are permitted to act on the information;  Ensure you keep the information confidential on a need-to-know basis;  Be careful about what you say to customers and other employees;  Weigh your options: keep, suspend or terminate the employee depending on the severity of the infraction and strength of the ev e ce; a evidence; and  Consult legal counsel where appropriate. 14
  • 15. What Frontline Managers and Supervisors Need to Know About Policing Social Networking Sites so They Don’t Legally Misstep (cont’d.) Should We Discipline The Employee For This Conduct?  Is the conduct lawful?  Is the conduct protected?  Is this conduct protected by any of the California Labor Code p y y provisions?  Is there a relationship between the conduct and the job?  Does the conduct cast your business in a negative light? y g g  If disciplinary action is taken, ensure that similar discipline is imposed on all similar situations.  Consult legal counsel before taking any disciplinary action. g g y p y Miscellaneous  Can references be provided? 15
  • 16. How Businesses/Employers May p y yUse/Benefit From Employees’ Use of Social Media Enhance employee productivity Confirm discrimination or harassment Reveal dissatisfaction with the workplace Consider an approval process if social media will be used 16
  • 17. Jason Weiss is a partner in the firms Orange County office where he practices employment law and business litigation. Jason specializes in representing employers from multinational corporations to start- employers, ups, on a wide variety of employment and labor relations matters, ranging from wrongful termination and unfair competition lawsuits to preventive counseling and advice. Jason s Jasons employment litigation experience includes handling cases at the trial and appellate levels of both state and federal courts and in arbitration. He also represents management in wage/hour matters before the U.S. Department of Labor and the California Labor Commissioner, discrimination claims filed with the U.S. Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing, Sarbanes-Oxley ActJason A. Weiss, Esq. whistleblower claims, unemployment insurance claims and SectionPartner 132a discrimination petitions filed with the Workers CompensationAllen Matkins Leck G blAll M k L k Gamble Appeals Board Board.Mallory & Natsis LLP Jasons practice includes the drafting and implementation of1900 Main Street, 5th Fl employee handbooks, workplace policies and employment contracts.Irvine, CA 92614-7321 92614- He has also guided employers through reduction-in-force programs,((949) 553-1313(main) ) 553- ( ) including compliance with state and federal laws such as the Worker(949) 851-5426 (direct) 851- Adjustment and Retraining Notification Act ("WARN"). Jason(949) 553-8354(fax) 553- regularly conducts in-house training seminars and workshops forjweiss@allenmatkins.com clients, and provides day-to-day counseling and advice.www.allenmatkins.com Jasons practice extends t th business law arena, where he h J ti t d to the b i l h h has experience and expertise in a range of business issues including contract disputes, trade secrets, interference claims, unfair competition, and intellectual property disputes. 17
  • 18. Monica M. Quinn is a Partner in the firm’s Los Angeles office, where she practices in the Labor and Employment Law Department. She is experienced in both litigation and transaction matters. Monica handles all employment disputes including wrongful termination, harassment, discrimination, retaliation, constructive discharge, wage/hour and other employment-related matters at all levels of state and federal court. She also defends employers before administrative agencies, such as the Equal Employment Opportunity Commission, the Department of Fair Employment and H i and the W k ’ Compensation E l d Housing d h Workers’ C i Appeals Board, and in arbitration proceedings.Monica M. Quinn Esq. Her employment law counseling practice includes providingPartner advice on employee handbooks and policies, training, wage andAllen Matkins Leck G blAll M k L k Gamble hour issues, employee discipline, trade secret issues, drug andMallory & Natsis LLP alcohol testing, privacy, leave issues, harassment and discrimination515 South Figueroa Street, 9th Fl laws, and all other areas of personnel administration.Los Angeles, CA 90071-3301 90071-((213) 622-5555 (main) ) 622- ( ) She is the co-author of a book chapter entitled "Social(213) 955-5615 (direct) 955- Networking and Off-Duty Conduct."(213) 620-8816 (fax) 620-mquinn@allenmatkins.comwww.allenmatkins.com 18