Social media in the workplace


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22% of employees visit social networking sites 5 or more times per week, yet only 54% of employers have a policy dealing with social media inside and outside the workplace. During this presentation, participants will learn about potential legal issues involved in adopting a policy and how to avoid those issues. Sample provisions will be discussed and recommended actions addressed.

Presented by Jackson Lewis.

Published in: Technology, Business
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Social media in the workplace

  1. 1. 800 Corporate Drive, Ste 600 Ft. Lauderdale, FL 33334 | 888.335.9545 Toll-Free | 2013 Webinar Series Social Media in the Workplace Thursday: August 15, 2013 Presented by:
  2. 2. Simplifying business. Benefiting people. AlphaStaff Welcomes Our Featured Partner! 2 Jessica Debono Anderson Attorney At Law Orlando Office
  3. 3. Simplifying business. Benefiting people. Privacy and Social Media in the Workplace • Social media is here to stay. • Can expose an employer to liability under several legal theories, such as harassment, discrimination, defamation and invasion of privacy. • Steps to protect against legal hazards associated with social media content, including social media policies. 3
  4. 4. Simplifying business. Benefiting people. What We Will Discuss •Social networking’s impact on your workplace •Potential employer liability from social networking •Using social networking information for hiring and other employment actions •Adopting a social media policy
  5. 5. Social networking’s impact on your workplace 5
  6. 6. Simplifying business. Benefiting people. Facebook • Facebook has over 1 billion active users. • 50% of Facebook users log on everyday. • Adults online who say they participate in social networking has increased from 8% in 2005 to 72% in 2013. • One out of every 7 minutes spent online is spent on Facebook. • 300 million pictures are uploaded to Facebook everyday. • 22% of employees visit social networking sites 5 or more times per week; many admit to logging in while at work.
  7. 7. Simplifying business. Benefiting people. Twitter • On a busy day Twitter sees about 175 million tweets. • 62% of Twitter users are in the 18-34 age group. • Every second 750 tweets are being shared on Twitter. • Twitter has 140 million active users and sees 340 million tweets per day. • About half of the world’s Twitter users are from the USA. • 55% of Twitter users are females. 7
  8. 8. Employer Liability 8
  9. 9. Simplifying business. Benefiting people. Potential Theories of Employer Liability – As with any business activity, social media creates legal risks. • Legal claims for harassment, discrimination and retaliation. • Loss of third party information. • FTC issues arising from employee blogs. The Federal Trade Commission (FTC) has promulgated guidelines addressing appropriate online endorsements (available at • Loss of company’s confidential information; improper disclosure of confidential or other protected information. • Legal claims for invasion of privacy. • Reporting requirements for child pornography. 9
  10. 10. Simplifying business. Benefiting people. Common Questions • Should our discrimination policies cover on-line activity? — Yes. • We do not want employees posting all over Facebook, LinkedIn and Twitter disparaging comments about the company. Can we prohibit that? — No. Regardless of whether your workplace is unionized or not, doing so could put you in hot water with the National Labor Relations Board. • Some of our managers like to review applicants’ public social media profiles. Are there any risks? — There can be which we will discuss. 10
  11. 11. Simplifying business. Benefiting people. Common Questions • It seems a good idea to screen more applicants’ social media accounts before making offers of employment, so we have included a place on our job application for the individuals to put usernames and passwords to all their social networking accounts. Is this a good risk avoidance strategy? — Probably not. Many states have passed or are considering laws that prohibit employers from asking employees or applicants for this information. 11
  12. 12. Simplifying business. Benefiting people. Asking For Passwords • States with laws banning employers from asking workers for their user names and passwords for their personal social media accounts: 12 Arkansas California Colorado Illinois Maryland Michigan Nevada New Mexico Oregon Utah Washington
  13. 13. Simplifying business. Benefiting people. Common Questions • Can we at least prohibit employees engaged in social networking from disclosing all of the company’s confidential information? — Any prohibition should not be stated broadly, but should be drafted narrowly to include only information that would not infringe on an employee’s right to engage in “protected concerted activity” under the National Labor Relations Act (which, very generally, is an employee’s right to commiserate with other workers about working conditions). 13
  14. 14. Social Networking & Hiring
  15. 15. Simplifying business. Benefiting people. Hiring • There has been no reported increase in failure-to- hire cases based on information obtained from social networking sites. • There is no law that directly prohibits the lawful use of social networking sites in the hiring process. • But there are RISKS.
  16. 16. Simplifying business. Benefiting people. • A search may yield information about an applicant’s protected characteristics— – Age, disability/medical information, race, sex, religious beliefs, pregnancy, sexual orientation, military status, marital status or other characteristic • The search may reveal other protected information— – Workers compensation claims, bankruptcy filings, criminal or arrest histories, or consumer reports • Invasion of privacy / Intrusion upon seclusion – get authorization on application Risks During Hiring
  17. 17. Simplifying business. Benefiting people. Use of Social Networking Sites in Employment • Some states have laws that prohibit employers from considering off-duty conduct when making adverse employment decisions. – California, New York, Colorado, Connecticut and North Dakota have statutes known as “lifestyle discrimination” laws, which ban discrimination based on legal off-duty recreational behavior. • An employer could arguably violate these laws by terminating an employee after discovering from a social networking site that, for example, the employee was drinking the night before.
  18. 18. Simplifying business. Benefiting people. Lessons Learned • If you are going to use social networking sites for hiring decisions: – Do so consistently – Rely on job-related criteria (preferably from a job description) – Make sure to comply with all third-party terms of use agreements – Make sure candidates are notified, in writing, about the company’s use of social networking sites to gather information
  19. 19. Social Networking & Discipline
  20. 20. Simplifying business. Benefiting people. Discipline •Several scenarios that may prompt an employer to discipline an employee for his or social media use: –Illegal web-based activity while at work. –Employee who spends the majority of his or her time on-duty on social networking sites or the web. –Employees who violate social media policy.
  21. 21. Simplifying business. Benefiting people. Legal Constraints • Employers must consider legal constraints before taking any adverse action: – Whistleblower statutes • Federal and state laws that protect employees who complain about company conditions affecting health/safety or illegal practices. – Political activities or affiliations • Many states prohibit employers from regulating employee political activities and affiliations or influencing employees’ political activities. – Legal off-duty activity • Some states protect an employee or applicant’s legal off-duty activities.
  22. 22. Simplifying business. Benefiting people. Legal Constraints (cont.) – Potential discrimination claims – National Labor Relations Act • Affords employees right to engage in “concerted activity,” including the right to discuss the terms and conditions of employment. Only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered.
  23. 23. Simplifying business. Benefiting people. Examples of Permissible Discipline • Newspaper employee terminated following tweet about news headlines including homicides, several tweets with sexual content and criticism of an area television station but the tweets were not shared with co-workers. NLRB found this was not concerted activity. • Employee terminated based on a Facebook conversation with a relative complaining about not getting a raise and working without tips. He did not discuss the posting with his co-workers and none of them responded, so not concerted activity. 23
  24. 24. Company Policies
  25. 25. Simplifying business. Benefiting people. Use of Social Networking Sites in the Employment Context: • Best Practices and Policies – It is important for companies to integrate social media policies into the workplace. – Policies are important to communicate to employees the expectations the company has in use of social media, and parameters for usage. 25
  26. 26. Simplifying business. Benefiting people. • Employers need a written policy that governs the use of and access to the company’s computer system, including electronic communication devices • The policy should identify WHAT EQUIPMENT IS COVERED, including • Company computer system (hardware and software) and all company issued electronic devices, including servers, backup devices, PCs, laptops, cell phones, PDAs, pagers, text messaging devices Lessons Learned – Terms
  27. 27. Simplifying business. Benefiting people. – Policy should identify WHO IS COVERED • All users of system--any exceptions? – Policy should identify the LEGITIMATE INTERESTS advanced – Employee productivity – Protect confidentiality – Protect image and intellectual property rights (logo, copyrighted material, etc.) Lessons Learned – Policy Terms
  28. 28. Simplifying business. Benefiting people. – The policy should identify WHAT CONDUCT IS PERMITTED • Identify “acceptable use” of covered systems and devices • Clarify Personal use vs. Business use • Consider corporate culture and other business factors • Make choice then ensure workers know what, if any, personal use is permitted under policy Lessons Learned – Policy Terms
  29. 29. Simplifying business. Benefiting people. • IDENTIFY PROHIBITED USES of the covered system and devices – No disclosure of trade secrets. – No harassment/discriminatory statements or sexual innuendo about co-workers. – No violation of any other company policies. Lessons Learned – Policy Terms
  30. 30. Simplifying business. Benefiting people. – Policy should clearly express that there is NO PRIVACY when using any part of the computer system – Personal communications to third parties are no exception to the “no privacy” rule – Consider prohibiting (and blocking) employee access to personal e- mail accounts from company equipment Lessons Learned – Policy Terms
  31. 31. Simplifying business. Benefiting people. • Reserve the RIGHT TO INSPECT EQUIPMENT AND DEVICES used at or to do work • Reserve the RIGHT TO MONITOR AND REVEW CONTENT of e- communications sent or received on or through company system or devices, as well as internet use Lessons Learned – Policy Terms
  32. 32. Simplifying business. Benefiting people. • The policy should notify employees that ANY VIOLATION WILL RESULT IN DISCIPLINE, up to and including termination Learned – Policy Terms
  33. 33. Simplifying business. Benefiting people. • NLRA Considerations in policy language • NLRB has been challenging employer policies it considers to be overly broad, in that they restrict employees from making any “negative” or “disparaging” statements about employer or terms and conditions of employment. Developing Appropriate Policies 33
  34. 34. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Violate §7 • Policy prohibiting the release of confidential guest, team member or company information. • Policy stating that employees should never share confidential information with another team member unless they have a need to know the information to do their job. • Unlawful because it could be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves. 34
  35. 35. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Violate §7 • Prohibiting employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations as to privacy or confidential information for any person or entity. • Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or its officers, directors and employees. • Prohibiting statements that lack truth or might damage the reputation or good will of the employer, its officers, directors and employees. 35
  36. 36. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Violate §7 • Prohibiting employees from posting about company business on their personal accounts, anything they wouldn’t want their supervisor to see, anything that may jeopardize their job, disclosing sensitive or inappropriate information about the company, posting pictures about the company and its employees that could be construed as inappropriate. • Precluding the disclosure of personal information regarding co- workers, clients or the company. 36
  37. 37. Simplifying business. Benefiting people. Developing Appropriate Policies (Continued) • Be careful when using the following terms in your policy: – Disparaging comments – Disrespectful conduct – Unprofessional communication – Negative conversations – Offensive communication – Statements that damage the company – Objectionable comments – Inflammatory communication 37
  38. 38. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Do Not Violate §7 • Carefully read these guidelines, the company’s Statement of Ethics Policy, the company’s Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination. 38
  39. 39. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Do Not Violate §7 • Prohibiting posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy. • Prohibiting use of company email addresses to register on social networks, blogs or other online tools utilized for personal use. • Informing associates that they should not speak to the media on the company’s behalf without contacting the Corporate Affairs Department. 39
  40. 40. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Do Not Violate §7 • Users may not post anything on the Internet in the name of Employer or in a manner that could reasonably be attributed to Employer without prior written authorization from the President or the President’s designated agent. • Do not create a link from your blog, website or other social networking site to the Employer’s website without identifying yourself as an employee. • Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. 40
  41. 41. Simplifying business. Benefiting people. Examples Of Policies The NLRB Has Found Do Not Violate §7 • Maintain the confidentiality of the company’s trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications. 41
  42. 42. Simplifying business. Benefiting people. Implement the Social Media Policy • Distribute policy to all employees • Educate employees on why policy is important • Train employees on rules of social media use • Periodically update related policies • Periodically review privacy settings and policies • Be vigilant and proactive
  43. 43. Simplifying business. Benefiting people. Conclusion Questions? Thoughts? Napping? 43
  44. 44. Simplifying business. Benefiting people. Need Help? Contact Us ! • . Copies of the presentation 888-335-9545 (Option 8) Jessica DeBono Anderson Attorney At Law (407) 246-8458 44
  45. 45. Upcoming AlphaStaff Webinar Please mark your calendars !!! Date: September 19, 2013 2:00 pm Topic: Navigating the ‘Bermuda Triangle’ of FMLA, ADA, & Worker's Compensation
  46. 46. Simplifying business. Benefiting people. Thank you for your participation! 46
  47. 47. Simplifying business. Benefiting people. 47