Employers and Social Media: You Love to Love It & Love to Hate It

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  • 1. Employers and Social Media: You Love to Love It, and Love to Hate It Janine Anthony Bowen, Esq., CIPP 404-527-4671 [email_address] HR Boot camp May 4, 2010
  • 2. Agenda
    • What’s the Big Deal Anyway?
    • Social Media of Interest
      • Email
      • Blogging, Texting & Twitter
      • Social Networks
      • YouTube
    • The Social Media/Email Policy
    • Take Aways
  • 3. What’s the Big Deal Anyway?
    • Reputational Risks
      • Employees personal behavior reflecting poorly on the company
    • Confidentiality Breaches
      • Personnel revealing (perhaps unwittingly) confidential information
    • Disparagement
      • Personnel engage in slanderous or libelous statement
      • SUX sites taken to a new level
    • Employer engages in potentially discriminating behavior
  • 4. Why Does It Matter?
    • Proofpoint Survey
      • 31% of employers terminate personnel for violation of email policy
      • 9% of employers terminate personnel for breaches while blogging
      • 8% of employers terminate for breaches using video
      • 8% of employers terminate for LinkedIn and Facebook violations
      • 13% of employers investigate personnel for use of Twitter and text messaging
    • Deloitte Survey
      • Only 17% of employers have programs to monitor and mitigate potential reputational risks
    • “ Outbound Email and Data Loss Prevention in Today’s Enterprise, 2009” (Proofpoint, Inc.)
    • “ Deloitte LLP 2009 Ethics & Workplace Survey
  • 5. Why Does it Matter? Risks
    • Potential reduced employee productivity
    • Potential damage to company property (e.g. computer viruses)
    • Potential liability to employer and employee for harassment, defamation, hostile work environment
    • Securities & IP
      • Quiet period pre-IPO
      • Patent rights – premature disclosures
  • 6. Social Media of Interest to Employers
    • E-mail (the first social media tool)
    • Blogging, Twitter & Texting
    • Facebook, LinkedIn, MySpace
    • YouTube
    • *All marks are the trademark of their respective owners.
  • 7. E-Mail: Stengart v. Loving Care Agency
    • Employee communicates via e-mail with lawyer about a planned lawsuit against employer.
    • E-mails were sent by employee using a company-owned computer, but through a password-protected Yahoo! Account
    • Are the email communications protected by attorney-client privilege (and therefore not subject to company monitoring)?
    • Headed for the NJ Supreme Court
  • 8. Texting: City of Ontario v. Quon
    • SWAT team members sent sexually explicit text messages on government-issued pagers.
    • Ontario had a ‘no-privacy’ policy, but senior ranking lieutenant said personal use was okay.
    • SCOTUS heard arguments on 4/19/2010 (appealed from 9 th Circuit by City of Ontario and USA Mobility Wireless).
    • 4 th Amendment and Stored Communications Act arguments regarding privacy in the messages.
  • 9. MySpace: Pietrylo v. Hillstone Restaurant Group
    • Waiter at Houston’s set up private MySpace group to dish the daily dirt re: work.
    • A legitimate group member shared some postings with management while logged in.
    • Management received member’s credentials so they could check out the site without her present.
    • Management fired 2 employees alleged violation of professionalism policy.
    • Employer sued under Stored Communications Act and invasion of privacy arguments.
    • Employees won.
  • 10. YouTube: California Pizza Kitchen
    • Employee/Twitter user @trapnik – not liking the new uniforms tweets the following:
    • “ @calpizzakitchen black button ups are the lamest s*&^ ever!!!”
    • CPK identifies and fires him
    • @trapnik posts a YouTube video detailing the circumstances
    • (Mashable.com, 9/15/2009)
  • 11. Facebook: Israeli Soldier
    • 3/2010 - Soldier posted a FB status saying his combat unit was going to ‘clean up’ the area
    • Israeli military call off a raid on a West Bank town as a result
    • Soldier was court-martialed and given 10 days in prison
    • ( Wall Street Journal, March 10, 2010)
  • 12. Facebook & LinkedIn: Potential Discrimination Issues
  • 13. The Social Media Policy
    • What’s the thinking regarding Social Media?
      • ‘ Educate and trust’
      • ‘ Give them guidelines and trust’
      • ‘ You can’t control, so educate’
      • ‘ Remind employees of potential impacts”
      • ‘ Set clear expectations’
      • ‘ Give examples of good and bad’
  • 14. The Social Media Policy: Contents
    • Scope – Public Internet Communications
    • Features
      • On company time – permitted or not?
      • Disclaimer re: bloggers refs to Company (i.e. make clear opinions are not of company)
      • Prohibitions on disclosures
        • Protected/confidential information
        • Reminders of Company policies on harassment/discrimination
      • Reminders of personal responsibility
      • Reminders re: employers right to monitor communications on company-owned/paid for equipment
      • Consequences for violations
      • Exercise good judgment
  • 15. Take Aways
    • A written policy is essential, even though the law is in flux.
      • Your employees probably think what they do on their own time is their business. Be clear if that’s not the case.
    • Be wary of inadvertent use that might raise discrimination issues.
    • Keep context – is a response in your company’s best interest or not?
  • 16. Q&A Contact Me
    • Janine Anthony Bowen, Esq.
    • [email_address]
    • http:// www.linkedin.com/in/jdabowen
    • 404-527-4671
    • Twitter - @cloudlawyer
    © 2010 J. A. Bowen. All Rights Reserved.