May 8th 11 30 am searching for social media evidence - litigation
Social Media in LitigationList of 689 Social Media evidence cases (2010-2011)http://x1discovery.com• MySpace (315 cases), Facebook (304), LinkedIn (39),Twitter (30), Foursquare (1).• Criminal matters were most common case type,followed by employment-related litigation,insurance claims/personal injury, family law andgeneral business litigation (trademarkinfringement/libel/ unfair competition).
2Concerns for Employers• A concern about legal risks/discovering information about protectedcharacteristics (e.g., age, race, gender, religious affiliation)• Inability to verify with confidence the information from an applicant’s socialnetworking page• Information about job candidates taken from these sites may not be relevant totheir work-related potential or performance• Not all job candidates have information on social networking sites• Concerns about invading the privacy of job candidates• It takes too much time and effort in relation to information gained• Job candidates might be less likely to apply if they knew the organizationscreened job candidates in this manner
Risks• Hostile Work Environment– When postings contain sexually inappropriate, otherwise discriminatorycommunications• Discrimination Claims– Comments about protected status can be proof of discriminatory animus• HIPAA and other Client Protections/Ethical Breaches– If Company employee discloses “Protected Health Information,” attorney-client privileged/client confidential info• Slander, defamation, and libel– When employee posts negative statements about another employee,vendor, competitor, etc.
Risks• Trade secrets and intellectual propertydisclosure/infringement– Disclosure of certain of your trade secrets or IPcan destroy (or at least erode) the “confidential”or protected status of the information– Employee’s use of someone else’s IP mayconstitute “infringement”• Proven by e-trail
Risks• FTC/Endorsement Rules– Effective 12/1/09– Intended to curb “deceptive advertising”– “Material connections” between blogger andcompany MUST be disclosed
The National Labor Relations Board• Federal Agency headquartered inWashington, D.C.• Has a five member governing board, but themajority is determined by the party in power• Has the authority to investigate, adjudicateand sue you to enforce their orders.
Social Networking/Media Policies• Policies which the NLRB feel are too broad.– Example: “Employees should not makedisparaging remarks about the company, theirsupervisor, etc. on social media websites, blogsor any other form of electronic media.”– Limited prohibition to trade secrets, confidentialinformation about the company or customers,and information which if released would breachagreements the company has.
8Information from Social Networking Sites• Concerted ActivityAn activity is concerted when an employeeacts “with or on the authority of otheremployees, and not solely by and on behalfof the employee himself.”• Protected ActivityEmployee statements are consideredprotected when it is clear from the context ofthe statements that they implicate “workingconditions” of the employee.
9Social Media Policies…• On May 30, 2012, the NLRB issued NEW Guidelines on SocialMedia Policies.• The Memo discusses six relatively commonpolicies that it found unlawful, including:• “Don’t release confidential guest, team, or company information”• “Offensive, demeaning, abusive or inappropriate remarks are as out of placeonline as offline…”• “Think carefully about “friending” co-workers”• “Don’t pick fights. Communicate in a professional tone.”• The Memo is simply guidance, and the courts will have to sort out theinterplay between protected speech and good business practices.
Drinking Off the Job• High school teacher fromGeorgia takes Europeanvacation.• Posts pictures to Facebookof her drinking alcohol.• Forced to resign.
Tell Us How You Really Feel• Cisco job candidate offered job.• Candidate tweets ─ “Cisco just offered me a job! Now I have toweigh the utility of a fatty paycheck against the daily commute toSan Jose and hating the work.”• Cisco responds• Job offer . . . rescinded.
Online Database of Social Media PoliciesList of 214 Social Media Policy Exampleshttp://socialmediagovernance.com/policies.php