“Social Media & EmploymentLaw: Current Issues and Trends” Deborah Gonzalez, Esq. March 15, 2012
Welcome/Overview• Introduction• Context• Social Media & Employment Cycle – Hiring – Employee Contracts – Employee Policies – Termination• What to do when a dispute arises?• Q&A
Introductions Name, company, andshare a “truth” of social media.
Context: Stats and Facts• There are now more than 800 million active Facebook users, with over 200 million added in 2011.• Around 75% of Facebook users are outside of North America with accounts available in 70 languages.• There are over 300 million Twitter accounts.• Over 80% of all Americans use a social network.• Approximately 40% of social media users access their accounts through mobile devices.
Context: Stats and Facts• Nearly 23% of online time is spent on social networks.• Facebook is the top destination among social networks and blogs; average visit 20 minutes each time.Social Media Examiner (Nov. 2011)http://www.socialmediaexaminer.com/26-promising-social-media-stats-for-small-businesses/
Context: Stats and FactsDLA Piper SurveyOf employees who use social media sites for personal use:• 39% have befriended a colleague or business contact on Facebook or LinkedIn• 14% have posted a status update or tweeted about their work• 22% have posted a status update or tweeted about a work colleague• 28% have posted photos of colleagues or business activities• 1% have posted confidential business information
Context: Stats and FactsDLA Piper SurveyOf employers:• 21% have taken disciplinary action because of information an employee has posted about a co-worker• 25% have taken disciplinary action because of information an employee has posted about their activities at work• 31% have taken disciplinary action because of information an employee has posted about the organization• 30% have taken disciplinary action because of the level of an employees social media use at work
Context: Stats and FactsDLA Piper Survey But only 14% of employers reportedhaving a social media policy that regulated the use of social media in or outside the workplace.
Situation “Out” ThereThe financial payouts and consequences of socialmedia for those involved, including vendors,developers, and clients, are becoming more apparent.New cases emphasizing social media mistakes costingreputations, resources, and jobs are becoming just ascommon as new releases of applications and puttingeveryone on alert.
To note…Facebook Post “Care to take a “sick day” and join me at the beach on Friday?”Another Facebook post: “What time did you get home last night? Can’t believe we drank all those tequila shots!”
Hiring• Recruitment• Social Media Background Checks• “Friending” during the interview process
Recruitment• Using Social Media platforms to “post” a job opening.• How do you capture the job posting?• How do you capture the candidate?• Ex. LinkedIn Job Classifies, Craig’s List, Twitter, other
Social Media Background Checks http://www.youtube.com/watch?v=JmukelUppDE
Social Media Background Checks• Do you know who it truly is?• Social Media is about “transparency” and “credibility.”• Fraudulent Credentials on Social Media Profiles – FTC – False advertising.• Comparing and contrasting the written, submitted resume and the LinkedIn or other Social Media Profiles.• Consent for the SM Background screening?
Social Media Background Checks• Discrimination issues• Fair credit Reporting Act (FCRA)• Privacy Concerns• Time Consuming• Using third-party which supplies a report without certain characteristics that can be viewed as discriminatory.
Social Media Background ChecksSocial Intelligence Corporation –• Presents employers with reports on only employer- defined material and filters out “protected class” information (such as race, religion, national origin, age, sex, familial status, sexual orientation, and disability status) defined by federal and state anti-discrimination law.• Summary and detail views present easy-to-understand results, with screenshots of pertinent material that matches the employer’s pre-defined criteria.
“Friending” & the Interview• Can you “friend” a candidate?• What if the candidate was already your friend? • Will it appear as “duress” – pressuring them to friend you if they want the job? • Will it give them false hope?• Can the candidate friend the interviewees?• Can the interview committee post anything on social media about the interviews and/or the candidates?Remember: What you cannot do offline you cannot doonline.
“Friending” During the Interview http://www.youtube.com/watch?v=Q0RdmhSO-wA
Contracts & AgreementsLaw student tweet “just got a job offer! Selling mysoul to the devil for financial stability!”• Use of Social Media for Offer/Acceptance• Use of Social Media during announcement/adaptation period• Agreement Clauses of ownership of social media accounts, online posted content, social media use on and off the job
Social Media PolicyImportant to have – can protect the organization frombeing liable for employee actions not done on behalf oforganization.Needs to be written and accessible to all employees.What other policies does it relate to? – IT/Computer Policy/Email Policy – Privacy/Confidentiality – Consistency, AccessibilityEmployees should be “trained” on the policy and sign acopy to be kept in HR.
Social Media PolicyComponents:• Identify benefits of social media• Address the risks of social media• Designate contact person(s) for people to consult with in regards to this policy (name, title, contact info including telephone, email and/or other communications contact)• Describe firm’s expectations, the fact that individuals are going to be responsible for their online activities
Social Media PolicyComponents:• Requirement of protection of client and firm confidences Address jurisdictional rules on advertising and disclosure to solicit new clients (especially for regulated industries)• Firm reserves the right to take disciplinary action against who violates – and must outline what those actions may be• Does the policy state that the company reserves the right to monitor use of social media by employees while the employee is using company equipment?
Social Media Policy“Employers should review their Internet andsocial media policies to determine whether theyare susceptible to an allegation that the policywould ‘reasonably tend to chill employees’ inthe exercise of their rights to discuss wages,working conditions and unionization.”
Termination• When can an employer terminate over social media use?• “Concerted Protected Activity” (NLRB)• Discovering & preserving evidence to “justify” termination• What happens when they are gone? (Badvocacy)
What to do When a Dispute Arises?• The “exit” interview.• What to tell the client about what not to do (spoilation of evidence)• Disclosure of private or confidential information• Social Media Investigation