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

    • 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
    • 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
    • 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
    • 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
    • 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
    • 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.
    • 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
    • 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.
    • 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.
    • 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)
    • 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)
    • Facebook & LinkedIn: Potential Discrimination Issues
    • 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’
    • 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
    • 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?
    • 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.