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EMPLOYMENT LAW OVERVIEWMISSOURI BANKER’S CONFERENCE - 2012                         David M. Kight, Esq.             Spence...
PROGRAM OVERVIEW     Social Media in the WorkplaceDual / Multi-Use Devices in the Workplace                               ...
• www.spencerfane.com/hrsolutions                                    2
Where we are today..The intersectionof social mediaand the law hasarrived.The statutes arestarting to comeforth…          ...
LAWS ON THE BOOKS?                                                No more shoulder surfing?So far in 2012, three states ha...
AN OVERVIEW OFSOCIAL MEDIA ANDLITIGATION                   5
Social Media Facts•   It is discoverable in litigation.•   It can be used as evidence.•   It might be considered free spee...
Discovery of Social Media Content• E.E.O.C. v. Simply Storage  Management, 270 F.R.D. 430 (S.D. Ind.  2010).• In this case...
Discovery of Social Media Content• The EEOC objected arguing privacy and an  attempt to embarrass the plaintiffs.• The emp...
Discovery of Social Media Content• The court ruled:  – “It is reasonable to expect severe emotional or    mental injury to...
Social Media is Discoverable• Sharlatte Coates brought sex harassment claim  against Mystic Blue Cruises Inc. Coates said ...
Even Judges Read Social MediaPurvis v. Commissioner of SocialSecurity, 2011 WL 741234 (D. N.J. Feb.23, 2011). Plaintiff cl...
Social Media as Evidence• California Court upholds verdict of  harassment based on blog postings of  co-workers done on no...
Social Media as Evidence• Plaintiff sued for car accident against Defendant and  claims Defendant was drunk. Defendant den...
Evidence in Kansas• Held v. Ferrellgas, 2011 WL 3896513, (D.Kan. Aug,  2011)(Melgren)• Plaintiff sued for employment discr...
Don’t Lie about Facebooking…• Debord v. Mercy Health System, __F.Supp.2d  __, 2012 WL 941387 (D.Kan. 2012)(Crow)• Employee...
Employer: Is Access to Social Media aViolation of Privacy? Court: Maybe.• A registered nurse brought an action against a h...
Is Social Media Free Speech?• According to one Court, no.• A mortuary student at the University of Minnesota sued to appea...
Free Speech in Kansas?• Byrnes v. Johnson Co. Comm. Coll., 2011 WL 166715  (D.Kan. 1/19/2011) (Melgren)• Nursing student e...
Is it Free Speech to “Like” Something?• According to the ACLU, yes. According to the Court, no.• The case revolves around ...
Don’t Assume It Gives You a Win.•   A judge ruled that adult themed posts on a social media page were relevant to a    wom...
Can We Sue For Facebook Loss?• Court ruled that the loss of a Facebook page  and 19,000 “fans” was not a compensable  loss...
Social Media Another WayFormer employee has contacted20 of the contract workers youuse on behalf of her newemployer and is...
Yes Virginia, You can sue…• TekSystems, Inc. v. Hammernik, et al., 2010  WL 1624258 (D. Minn. Mar. 16, 2010).• The lawsuit...
How it ended…• The case settled after the Company got a  permanent injunction against the employee.                      T...
Tweeting As a Violation of Contract?• Rashard Mendenhall v. Hanesbrands, Inc., 856 F.  Supp.2d 717 (N.C., 2012).• Hanesbra...
So what does this mean?• Social media is becoming an increasing part  of our daily work lives. Thus, we will see it  becom...
SOCIAL MEDIA AND THENATIONAL LABORRELATIONS BOARD                       27
The New Sheriff in Town…They are the primary government employment related agency,which is addressing the rights of employ...
The NLRB• Federal Agency headquartered in  Washington, D.C.• Has a five member governing board, but the  majority is deter...
So, what can they do, really? Remedies available to the NLRB if you have committed an Unfair Labor Practice: 1. Requiring ...
So what is the biggest issue?• Policies that the NLRB feel are too broad.   – Example: “Employees should not make disparag...
You Make the Call #1Five employees do not like their co-worker. Theybelieve the co-worker is a slacker and fakes illnesses...
You Make the Call #1Most likely. Recently, an administrative law judge of the Boardheld that the five employees were engag...
You Make the Call #Employer is a restaurant with an unwritten policy thatwaitresses don’t share tips with the bartenders e...
You Make the Call #2According to the NLRB, yes. Although the postingsconcerned terms and conditions of work, theemployee d...
POLICY TIPS ANDQUESTIONS WE GETFROM CLIENTS                   36
Social Media Policies• What are they?  – A social media policy outlines for employees the    corporate guidelines or princ...
Social Media Policies• Questions to Consider:  – If someone at your offices blogs, tweets or posts    for the company, wha...
Social Media Policies• Employees should know that they have no  right to privacy with respect to social  networking.  – “E...
Social Media Policies• Employees should be reminded that  company policies on anti-harassment, ethics  and company loyalty...
Not there yet• There is no such thing as a“Friend” privilege preventing aCourt from ordering someoneto provide a username,...
Questions We Get From clients• Can you use social media for a disciplinary  action for employee calling in sick when they ...
Questions We Get from Clients• We have a policy which states that internal  communications are not to be disclosed.  Someo...
Questions We Get From ClientsCan an employer prohibitan employee from being aFacebook friend with aclient?Couldn’t an empl...
Questions We Get From ClientsOur company has aFacebook page andTwitter site. How wouldyou guide us regardingpostings or co...
Questions We Get From Clients  If an applicant provides a link to their Facebook  page on their resume and the page contai...
Questions We Get From ClientsWe have had troublegetting previousemployees to change their“title and company” onLinkedIn, i...
Questions We Get From ClientsCan an employer be liablefor the harassingFacebook posts of oneemployee toward anotherif the ...
Questions We Get From ClientsCan you include thelanguage in a social mediapolicy that says “allelectronic media currentlyi...
Questions We Get From ClientsWhat, if any recourse, does      I just created aa school district or          Facebook page ...
Questions We Get From ClientsRegarding LinkedIn,can a firm prevent aformer employee fromrecommendingsomeone?
Questions We Get From ClientsIf an employer pays for the use of the internet but itis the employees phone, can the employe...
Quick Tip• Companies should update  their document retention  policy to include social  media activity. The  procedures th...
MULTI-USE DEVICES INTHE WORKPLACE                   54
Bring Your Own Device (BYOD)• Employers are increasingly allowing employees to  bring their devices from home or to purcha...
Not-so Good Samaritans• Finders of “lost” smartphones:   –   81% accessed contacts   –   47% accessed cloud-based document...
Things that Make You Go Hmm…• Can your system differentiate between authorized or  unauthorized devices?• How much copying...
Nightmare Scenario• Financial services company is about to start a performance  review with a problem employee. The employ...
Performance Review• The employee takes the recording to a lawyer.• Three weeks later, the employee’s lawyer called and  th...
A quick aside on surfing the netGaskell v. University of Kentucky, E.D. Kentucky, Nov. 23,2010• Fact #1: The University of...
Gaskell v. Univ. of Kentucky• One of the members of the search committee conducted  an internet search for information abo...
Gaskell v. Univ. of Kentucky• Shocker #1: Gaskell wasn’t hired.• Shocker #2: A less qualified person was hired.• Shocker #...
Gaskell v. Univ. of Kentucky• The email, with the subject line “The Gaskell Affair,” stated:• It has become clear to me th...
If you are going to screen…• Create a list of the lawful information the company wants to find  out from the online search...
What Does This Mean for You?• The rise of smartphones and tablets (collectively,  “smartphones”) creates new problems – or...
iPod Slurping – What is it?• “iPod slurping “• An application exists that can  search corporate networks for files  likely...
Top 10 Steps to Reducing Risk• Limit eligibility of use of multiple devices (or access  with a personal device) to specifi...
Top 10 Steps (continued)• Restrict storage of corporate information on dual use  devices (e.g. e-mail, e-mail attachments,...
Top 10 Steps (continued)• Remind employees that dual use devices (and  passwords) must be provided for inspection  upon re...
Top 10 Steps (continued)• Require employees to immediately report  lost or stolen devices.• Add review of dual use devices...
Smartphone Policy Checklist• Who is covered?• Define types of devices covered• List jobs/employees who are entitled to emp...
Mo. Computer Tampering Act• § 569.095, et seq.  – A person violates this Act by:     •   Modifying or destroying computer ...
Quick Question• Q. Can we require an employee to give us access to their online  social media accounts?• A. Two opinions h...
THANK YOU FOR ATTENDING!• Any Questions?     David Kight, Esq.     Spencer Fane Britt & Browne, LLP     @davekight     @so...
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Missouri Bankers Employment Law Conference

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Is your workplace prepared for today's electronic workplace? Are you prepared for social media? This presentation gives you guidance.

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Missouri Bankers Employment Law Conference

  1. 1. EMPLOYMENT LAW OVERVIEWMISSOURI BANKER’S CONFERENCE - 2012 David M. Kight, Esq. Spencer Fane Britt & Browne, LLP Kansas City, Missouri Overland Park, Kansas Jefferson City, Missouri St. Louis, Missouri Omaha, Nebraska Denver, Colorado
  2. 2. PROGRAM OVERVIEW Social Media in the WorkplaceDual / Multi-Use Devices in the Workplace 1
  3. 3. • www.spencerfane.com/hrsolutions 2
  4. 4. Where we are today..The intersectionof social mediaand the law hasarrived.The statutes arestarting to comeforth… 3
  5. 5. LAWS ON THE BOOKS? No more shoulder surfing?So far in 2012, three states have enacted employee social media laws. California, Marylandand Illinois each have enacted laws which prohibit an employer from requesting or requiringdisclosure of employee / applicant social media log in credentials.Eleven other states (Delaware, Massachusetts, Michigan, Minnesota, Missouri, New Jersey,New York, Ohio, Pennsylvania, South Carolina and Washington) are considering similarlegislation.Two different bills have been introduced in Congress to address this issue but given theelection year, may go nowhere. (Social Networking Online Protection Act (H.R. 5050) andPassword Protection Act of 2012 (S. 3074/H.R. 5684)). 4
  6. 6. AN OVERVIEW OFSOCIAL MEDIA ANDLITIGATION 5
  7. 7. Social Media Facts• It is discoverable in litigation.• It can be used as evidence.• It might be considered free speech.• Doesn’t guarantee you win your case.• Might be deemed a business expectancy. 6
  8. 8. Discovery of Social Media Content• E.E.O.C. v. Simply Storage Management, 270 F.R.D. 430 (S.D. Ind. 2010).• In this case, the employer was sued for sexual harassment by two employees.• In discovery, the employer sought production of photographs and videos as well as updates and messages on their Facebook and MySpace pages. 7
  9. 9. Discovery of Social Media Content• The EEOC objected arguing privacy and an attempt to embarrass the plaintiffs.• The employer countered that the EEOC had placed the emotional health of the woman at issue by claiming “medical treatment” stemming from alleged harassment and claiming depression from post traumatic stress disorder. 8
  10. 10. Discovery of Social Media Content• The court ruled: – “It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.” 9
  11. 11. Social Media is Discoverable• Sharlatte Coates brought sex harassment claim against Mystic Blue Cruises Inc. Coates said her supervisor offered to remove an allegedly false insubordination charge if she agreed to have sex.• Employer sought “intimate” social media conversations by Coates and male employees of the company.• Court ruled that they were discoverable.• Coates v. Mystic Blue Cruises Inc., N.D. Ill., No. 1:11- cv-01986, 8/9/12. 10
  12. 12. Even Judges Read Social MediaPurvis v. Commissioner of SocialSecurity, 2011 WL 741234 (D. N.J. Feb.23, 2011). Plaintiff claimed asthma asbasis for social security income. Claimwas denied. On Purviss appeal, thecourt noted that "[a]lthough the Courtremands the ALJs decision for a moredetailed finding, it notes that in thecourse of its own research, it discoveredone profile on what is believed to bePlaintiffs Facebook page where sheappears to be smoking ... If accuratelydepicted, Plaintiffs credibility isjustifiably suspect." Id. at *7. 11
  13. 13. Social Media as Evidence• California Court upholds verdict of harassment based on blog postings of co-workers done on non-government site.• The employer was aware of the blog and did not block access to the site. – Espinoza v. Orange County, CA. (2/9/12). 12
  14. 14. Social Media as Evidence• Plaintiff sued for car accident against Defendant and claims Defendant was drunk. Defendant denies.• Plaintiff’s lawyer produced printouts of Barnharts MySpace page with entries before and after the collision which included references to regular alcohol use, her good friend Captain Morgan (rum), and frequent hangovers.• The jury found the defendant 95% liable for the collision and the plaintiffs were awarded $600k. – Morales, et al. v. Barnhart, Harris County District Court, 157th, Harris County, TX (2011). 13
  15. 15. Evidence in Kansas• Held v. Ferrellgas, 2011 WL 3896513, (D.Kan. Aug, 2011)(Melgren)• Plaintiff sued for employment discrimination under Title VII of the Civil Rights Act of 1964.• Court ruled that an employer was entitled to see data from Plaintiff’s Facebook account and granted Defendant’s Motion to Compel. Court noted that Defendant was willing to permit Plaintiff to print the information off and produce it rather than insist that Plaintiff disclose the username and password of the Plaintiff’s Facebook account. – Note: During his deposition, plaintiff testified that he could not recall whether he posted anything on his Facebook page that would be relevant to the case. 14
  16. 16. Don’t Lie about Facebooking…• Debord v. Mercy Health System, __F.Supp.2d __, 2012 WL 941387 (D.Kan. 2012)(Crow)• Employee was terminated for dishonesty when she denied twice making Facebook comments about her boss during work time that were negative and then admitted it later. She sued for sexual harassment and argued that the termination was pretextual.• Ct. granted summary judgment to employer. 15
  17. 17. Employer: Is Access to Social Media aViolation of Privacy? Court: Maybe.• A registered nurse brought an action against a hospital and its executives for invasion of privacy. The hospital gained access to her Facebook postings through a co-worker who was “friends” with the nurse. Ehling v. Monmouth-Ocean Hospital Service Corp., 2012 WL 1949668 (D. Jew Jersey, May 30, 2012).• The hospital moved to dismiss the claim, prompting the Court to note that “privacy in social networking is an emerging, but underdeveloped area of case law.”• It held that she “may have had a reasonable expectation that her Facebook posting would remain private, considering that she took active steps to protect [it] from public viewing.”• Further, it stated that “reasonableness (and offensiveness) are highly fact-sensitive inquiries,” and therefore are “not properly resolved on a motion to dismiss.” 16
  18. 18. Is Social Media Free Speech?• According to one Court, no.• A mortuary student at the University of Minnesota sued to appeal discipline imposed against her for posts on Facebook. Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012).• The Supreme Court of Minnesota was asked to evaluate whether discipline imposed against Tatro by the school constituted a violation of her right to free speech under the First Amendment to the Constitution.• The Minnesota Supreme Court, in a case of first impression, rejected her claims finding that Tatro had agreed to certain Mortuary Science Program Rules, which were more restrictive than normal student speech restrictions. 17
  19. 19. Free Speech in Kansas?• Byrnes v. Johnson Co. Comm. Coll., 2011 WL 166715 (D.Kan. 1/19/2011) (Melgren)• Nursing student expelled from nursing school following posts on Facebook of photographs of placentas taken during training at Olathe Medical Center. Student had permission to take the photos. Student sought injunction. Court granted injunction ordering school to readmit student. Court found that student had already paid fees but was neither given credit for classes or refunded sums paid. Court found that school expelled student not for violating a rule but for violating “the sense of propriety” of the School. 18
  20. 20. Is it Free Speech to “Like” Something?• According to the ACLU, yes. According to the Court, no.• The case revolves around six Virginia employees who were fired by Hampton Sheriff B.J. Roberts after they supported his re-election opponent in 2009. One worker, Daniel Ray Carter, had “liked” the Facebook page of Roberts’ opponent.• Carter argued that to “Like” was the same as free speech and he could not be fired. The Court disagreed.• "Liking a Facebook page is insufficient speech to merit constitutional protection," Judge Raymond A. Jackson wrote in May, 2012, because it doesnt "involve actual statements.”• The ACLU has filed an appeal on behalf of Carter to the 4th Circuit Court of Appeals. 19
  21. 21. Don’t Assume It Gives You a Win.• A judge ruled that adult themed posts on a social media page were relevant to a woman’s sexual harassment claim, but were not yet fatal to her case at the summary judgment stage.• This case began with police officer Christina Targonski and her workplace, the City of Oak Ridge, Tennessee. Targonski claimed she was discriminated against and retaliated against by the City. During the course of her litigation, it was revealed that Targonski posted on her Facebook account that she was interested in "Naked Twister" and other adult themed conduct. Her posts were occurring at the time she claims the rumors created a hostile work environment.• The Court found the posts curious, but noted that Targonski called the posts "jokes" between friends. The Court then found, at the early stage of the case, that Targonski - if she was to be believed - could proceed with her case. Targonski v. City of Oak Ridge, Case No. 3:11-CV-269 (E.Dist. of Tenn., July 18, 2012). 20
  22. 22. Can We Sue For Facebook Loss?• Court ruled that the loss of a Facebook page and 19,000 “fans” was not a compensable loss. – “Piggy Paint’s alleged business expectancy with the ‘fans’ of its facebook page is too indefinite to form the basis of an actual expectation of business.” – Lown Companies, LLC, v. Piggy Paint, LLC, 2012 WL 3277188 (W.D. MI, 2012) 21
  23. 23. Social Media Another WayFormer employee has contacted20 of the contract workers youuse on behalf of her newemployer and is soliciting theirbusiness. The former employeehas “connected” with 20 of yourclients via Linkedin and isencouraging them to call her.• Does this conduct violate the non-compete agreement? 22
  24. 24. Yes Virginia, You can sue…• TekSystems, Inc. v. Hammernik, et al., 2010 WL 1624258 (D. Minn. Mar. 16, 2010).• The lawsuit alleged that after Hammernik left TEKsystems in November 2009, she “communicated” with at least 20 TEKSystems contract employees and “connected” with about 16 of them using the LinkedIn professional network. 23
  25. 25. How it ended…• The case settled after the Company got a permanent injunction against the employee. The lesson learned: Conduct over Twitter, Facebook and LinkedIn are increasingly being used by the Courts and are being analyzed as if they were spoken or sent by e-mail, fax or letter. Your employees should be aware that policies relating to conduct apply equally to social media. 24
  26. 26. Tweeting As a Violation of Contract?• Rashard Mendenhall v. Hanesbrands, Inc., 856 F. Supp.2d 717 (N.C., 2012).• Hanesbrands hired Mendenhall to promote its Champion line of athletic wear.• Mendenhall tweeted a controversial comment on the death of Osama bin laden.• Hanesbrands fired Mendenhall for violating his Talent agreement. Mendenhall sued arguing that he didn’t violate the morals clause and Hanesbrands violated its good faith and fair dealing obligations.• Court found that it would not dismiss the case at the motion to dismiss stage. 25
  27. 27. So what does this mean?• Social media is becoming an increasing part of our daily work lives. Thus, we will see it becoming more intertwined with how employees – and former employees – operate…• And demonstrate their idiocy. 26
  28. 28. SOCIAL MEDIA AND THENATIONAL LABORRELATIONS BOARD 27
  29. 29. The New Sheriff in Town…They are the primary government employment related agency,which is addressing the rights of employees and employersregarding social media.They are getting very aggressive (historically) in taking actionsto increase employee rights. (See the new posting rule)They are encouraging employees (even non-union employees)to file unfair labor practice charges related to social mediadiscipline. 28
  30. 30. The NLRB• Federal Agency headquartered in Washington, D.C.• Has a five member governing board, but the majority is determined by the party in power – (thus, politics occasionally enters the picture)• Has the authority to investigate, ajudicate and sue you to enforce their orders. 29
  31. 31. So, what can they do, really? Remedies available to the NLRB if you have committed an Unfair Labor Practice: 1. Requiring you to cleanse their record of discipline; 2. Requiring you to reinstate them; 3. Requiring you to pay them backpay; 4. Requiring you to post a notice to employees; and 5. Court Injunctions. 30
  32. 32. So what is the biggest issue?• Policies that the NLRB feel are too broad. – Example: “Employees should not make disparaging remarks about the company, their supervisor, etc. on social media websites, blogs or any other form of electronic media.”• Drafting tip? – If you must have a policy addressing comments, make sure it is limited to trade secrets, confidential information about the company or customers, and information that if released would breach agreements the company has. 31
  33. 33. You Make the Call #1Five employees do not like their co-worker. Theybelieve the co-worker is a slacker and fakes illnesses toget out of work. They post derogatory messages onher Facebook page containing obscenities and openlyexpressing their negative feelings toward her. Thevictim complains. Following an investigation, the fiveemployees are discharged for harassment under thecompany’s zero tolerance policy. Any problem withthe discharges? 32
  34. 34. You Make the Call #1Most likely. Recently, an administrative law judge of the Boardheld that the five employees were engaging in concertedprotected activity for which they could not be discharged.The judge held that the Facebook postings were no differentthan “water cooler” talk and could not be interfered with. Heheld that even though the conversations were not directed tothe employer, because they involved terms and conditions ofemployment they were protected.The judge ordered the employees reinstated. An appeal to theBoard is pending. 33
  35. 35. You Make the Call #Employer is a restaurant with an unwritten policy thatwaitresses don’t share tips with the bartenders even thoughthe bartenders help serve food. A bartender discussed theissue with a co-worker who agreed that it “sucked.” Severalmonths later in Facebook posts, the bartender complained to arelative that he was doing waitresses work without the tips.He called the restaurant’s customers “rednecks” and said hehoped that they choked on glass as they drove home drunk.He didn’t discuss the posting with co-workers and none ofthem responded. The owner sent a facebook message to theemployee telling him his services were no longer needed. Wasthe termination lawful? 34
  36. 36. You Make the Call #2According to the NLRB, yes. Although the postingsconcerned terms and conditions of work, theemployee did not discuss the posting with co-workersand none of them responded to the posting. Therewere no employee meetings or any attempt to initiategroup action concerning the policy.The termination was lawful. 35
  37. 37. POLICY TIPS ANDQUESTIONS WE GETFROM CLIENTS 36
  38. 38. Social Media Policies• What are they? – A social media policy outlines for employees the corporate guidelines or principles of communicating in the online world. – Do you have any existing communications, privacy and ethics policies? If so, you may be half-way there already.
  39. 39. Social Media Policies• Questions to Consider: – If someone at your offices blogs, tweets or posts for the company, what happens when they leave the company? – Who owns the “friends” or “followers”? – Can I load up the company’s client list to LinkedIn? – What am I permitted to post anonymously?
  40. 40. Social Media Policies• Employees should know that they have no right to privacy with respect to social networking. – “Employer reserves the right to monitor employee use of social media regardless of location (i.e. at work on a company computer or on personal time with a home computer).”
  41. 41. Social Media Policies• Employees should be reminded that company policies on anti-harassment, ethics and company loyalty extend to all forms of communication (including social media) both inside and outside the workplace.
  42. 42. Not there yet• There is no such thing as a“Friend” privilege preventing aCourt from ordering someoneto provide a username,password or details from aSocial Media account where youhave limited your posts to “friends.” 41
  43. 43. Questions We Get From clients• Can you use social media for a disciplinary action for employee calling in sick when they are partying? 42
  44. 44. Questions We Get from Clients• We have a policy which states that internal communications are not to be disclosed. Someone in the office posts part of a memo on Facebook. Can the employee be disciplined? 43
  45. 45. Questions We Get From ClientsCan an employer prohibitan employee from being aFacebook friend with aclient?Couldn’t an employeeargue they were friendsbefore work?
  46. 46. Questions We Get From ClientsOur company has aFacebook page andTwitter site. How wouldyou guide us regardingpostings or commentsby employees – even ontheir own time?
  47. 47. Questions We Get From Clients If an applicant provides a link to their Facebook page on their resume and the page contains their views on litigation and politics, can we look at it and use it?
  48. 48. Questions We Get From ClientsWe have had troublegetting previousemployees to change their“title and company” onLinkedIn, i.e., our old CEOstill lists himself as a“current CEO.” Is thereanything we can do to getthem to change it?LinkedIn won’t change it.
  49. 49. Questions We Get From ClientsCan an employer be liablefor the harassingFacebook posts of oneemployee toward anotherif the posts are made off-duty and off-premises?
  50. 50. Questions We Get From ClientsCan you include thelanguage in a social mediapolicy that says “allelectronic media currentlyin use today and anyother electronic media yetto be developed” whenaddressing what is and isnot acceptable in theworkplace?
  51. 51. Questions We Get From ClientsWhat, if any recourse, does I just created aa school district or Facebook page calleduniversity have if students “Ms. Johnson is the worst teacher ever”post lies about teachers oradministrators on personalsocial media accounts?
  52. 52. Questions We Get From ClientsRegarding LinkedIn,can a firm prevent aformer employee fromrecommendingsomeone?
  53. 53. Questions We Get From ClientsIf an employer pays for the use of the internet but itis the employees phone, can the employer ask themnot to use social networking?
  54. 54. Quick Tip• Companies should update their document retention policy to include social media activity. The procedures that the company is following for e-mails in terms of storage and retention periods may be a good starting point. 53
  55. 55. MULTI-USE DEVICES INTHE WORKPLACE 54
  56. 56. Bring Your Own Device (BYOD)• Employers are increasingly allowing employees to bring their devices from home or to purchase their own devices.• Some companies believe that this will permit them to reduce the costs for support of devices. Employees will have to go back to the store where they bought the device for support.• Some programs can save the company money by providing a stipend to employees rather than buying new machines every few years.• This has increased in recent years with the increase of tablets and particularly the iPad. 55
  57. 57. Not-so Good Samaritans• Finders of “lost” smartphones: – 81% accessed contacts – 47% accessed cloud-based documents – 64% accessed social networking sites – 57% discovered passwords – 45% discovered the owner’s salary information – 43% accessed the owner’s on-line banking Bloomberg Business Week 56
  58. 58. Things that Make You Go Hmm…• Can your system differentiate between authorized or unauthorized devices?• How much copying of company data is permitted before it is flagged by the system?• Does your system engage in virus checking before it permits a USB drive to be used?• If an employee copied your trade secrets to a computer USB drive, could your system track it? 57
  59. 59. Nightmare Scenario• Financial services company is about to start a performance review with a problem employee. The employee is aware of the likely bad review but has a secret weapon: His Blackberry.• During the review, he records the conversation which includes the following comments: – “Those dreads in your hair make you look like a thug.” – “We’d love you to speak proper English, not the jive you speak in the office.” 58
  60. 60. Performance Review• The employee takes the recording to a lawyer.• Three weeks later, the employee’s lawyer called and threatened both to sue the employer and to release the recording to the media.• The employer, faced with the negative publicity and a potential lawsuit, agrees to a large settlement. The Fiscal Times, July 28, 2011 59
  61. 61. A quick aside on surfing the netGaskell v. University of Kentucky, E.D. Kentucky, Nov. 23,2010• Fact #1: The University of Kentucky wanted to hire a Founding Director for its astronomical observatory.• Fact #2: The University put together a search committee which received about 12 applications for the position.• Fact #3: The most qualified applicant by far was Martin Gaskell. He was the top candidate until… 60
  62. 62. Gaskell v. Univ. of Kentucky• One of the members of the search committee conducted an internet search for information about Gaskell and found his professional website which linked to his personal website which contained an article titled “Modern Astronomy, the Bible, and Creation.”• This information was circulated to the entire search committee.• From there, the search committee discussed Gaskell’s religious beliefs with other professors at the University, with the University Dean and Provost, and with Gaskell’s previous employer. The search committee also reviewed Gaskell’s student evaluations for references to his religious beliefs. 61
  63. 63. Gaskell v. Univ. of Kentucky• Shocker #1: Gaskell wasn’t hired.• Shocker #2: A less qualified person was hired.• Shocker #3: Gaskell filed a lawsuit for religious discrimination.• The University tried to get the case dismissed but lost because the Court concluded that there was sufficient evidence to proceed.• The smoking gun? An email from the chair of the search committee. 62
  64. 64. Gaskell v. Univ. of Kentucky• The email, with the subject line “The Gaskell Affair,” stated:• It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand far above those of any other applicant. Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real reason why we will not offer him the job is because of his religious beliefs in matters that are unrelated to astronomy or to any of the duties specified for this position. (For example, the job does not involve outreach in biology.). . . If Martin were not so superbly qualified, so breathtakingly above the other applicants in background and experience, then our decision would be much simpler. We could easily choose another applicant, and we could content ourselves with the idea that Martins religious beliefs played little role in our decision. However, this is not the case. As it is, no objective observer could possibly believe that we excluded Martin on any basis other than religious. . . . 63
  65. 65. If you are going to screen…• Create a list of the lawful information the company wants to find out from the online search and use that list in every search.• Decide whether the company will screen all applicants for all positions, or only for certain positions.• Have a neutral person conduct the online screening, filter out any protected information about the applicant, and report to the decision maker only information that lawfully can be considered.• Consider whether to conduct the online search before or after the in-person interview.• Consider whether to provide notice to applicants and whether to obtain the applicant’s consent before conducting the online search. Notice and consent is required if using a third party vendor. 64
  66. 66. What Does This Mean for You?• The rise of smartphones and tablets (collectively, “smartphones”) creates new problems – or amplifies old problems – Do you provide your employees with a smartphone? – If not, are your employees allowed to use their personal smartphone for business purposes? – Do you have a smartphone policy? – What are the risks and liabilities you face today and how can you be proactive in addressing these concerns? 65
  67. 67. iPod Slurping – What is it?• “iPod slurping “• An application exists that can search corporate networks for files likely to contain business-critical data. This app scans and download files on to an iPod.• To anyone even looking at a person doing this, you would see someone appearing to be listening to their iPod. The person stealing the data need not even have access to a keyboard. A 20 GB iPod can hold 700,000 documents. 66
  68. 68. Top 10 Steps to Reducing Risk• Limit eligibility of use of multiple devices (or access with a personal device) to specific categories of employees.• Require that your information technology department be permitted to set security on any device that accesses the system. Employees should be prevented from disabling or modifying the security settings.• Restrict the types of corporate resources that can be accessed (e.g. only e-mail, calendar and contacts) 67
  69. 69. Top 10 Steps (continued)• Restrict storage of corporate information on dual use devices (e.g. e-mail, e-mail attachments, calendar entries and contact cards)• Get a signed acknowledgement that dual use devices are subject to all corporate policies.• Warn employees that dual use devices will be monitored when connected to the corporate network. 68
  70. 70. Top 10 Steps (continued)• Remind employees that dual use devices (and passwords) must be provided for inspection upon reasonable request for company investigations and to implement a litigation hold.• Obtain employee’s agreement to remote wipe in the event of loss, theft or termination of employment. 69
  71. 71. Top 10 Steps (continued)• Require employees to immediately report lost or stolen devices.• Add review of dual use devices to exit interview procedures. – Bonus step: Make sure employees aren’t bringing it with them from a prior job when they start working for you. This ought to be in an offer letter, company policy or employee agreement. 70
  72. 72. Smartphone Policy Checklist• Who is covered?• Define types of devices covered• List jobs/employees who are entitled to employer- provided smartphone• Set procedure for issuance of smartphones• Set procedure for employee requests for smartphones• Who pays? – What is paid? (Data plans/repairs/replacements) – Who pays for “apps” or downloads? What if “apps” are used for business purposes? 71
  73. 73. Mo. Computer Tampering Act• § 569.095, et seq. – A person violates this Act by: • Modifying or destroying computer data • Disclosing or taking data residing on a computer • Disclosing passwords • Accessing a computer to intentionally examine information about another person – Similar statutes apply to computer equipment and tampering with computer users – Criminal statute – Civil penalties allowed under § 537.525 72
  74. 74. Quick Question• Q. Can we require an employee to give us access to their online social media accounts?• A. Two opinions have said this constitutes a violation of the Stored Communications Act.• However, Congress has introduced the Password Protection Act of 2012. It makes it illegal to compel or coerce access to any online information on the internet if it is secured from general access. It appears that it applies to photo sites.• Maryland and Illinois have passed statutes to stop this. California appears next to enact one. 73
  75. 75. THANK YOU FOR ATTENDING!• Any Questions? David Kight, Esq. Spencer Fane Britt & Browne, LLP @davekight @socmedialawyers 74

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