The Social Network: Employers and Social Media


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A quick overview for employers on social media and examples of how it impacts them on a day to day basis.

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The Social Network: Employers and Social Media

  1. 1. On The Agenda• Spencer Fane 2011 Survey Results• The NLRB and You Make the Call Questions We Get from Clients• QR Codes and Microsoft Tags• Social Media in Litigation
  2. 2. Spencer Fane SurveyIn 2009, Spencer Fane started anannual Social Media Survey. Wesurvey companies – primarilyhuman resources employees - ontheir use of social media along withits impact in their organizations.
  3. 3. Spencer Fane Social Media Survey 2009 2010 2011 90 • Do you personally 80 use LinkedIn, 70 Facebook, Twitter, 60 MySpace?Percent 50 40 • Answers are % of 30 those who 20 responded yes. 10 0 LinkedIn Facebook Twitter
  4. 4. Organizations Tightening Use? 2009 2010 2011 70 Does your organization 60 permit employees to 50 access online socialPercent 40 media networks from a 30 company computer or 20 issued device? 10 0 YES
  5. 5. Organizations Tightening Use? 2009 2010 2011 50 Does your 45 organization 40 35 encourage employees to accessPercent 30 25 online social media 20 15 networks from a 10 company computer 5 0 or issued device? YES
  6. 6. Issues With Social Media 2009 2010 2011 60 Has your 50 organization 40 encountered anPercent 30 issue involving an 20 employee’s use of social media in the 10 workplace? 0 YES
  7. 7. Issues other than Excessive Use 2010 2011 If you encountered a 60 problem with an 50 employee and social 40 media in the workplacePercent 30 was it for something 20 other than excessive 10 use? 0 Yes No I dont know
  8. 8. Monitoring Does your organization monitor internet usage, keystrokes or bandwidth usage? 2010 2011 100Percent 50 0 Internet Use Keystrokes Bandwith
  9. 9. Connecting on LinkedInYes No I dont know NEW FOR 2011! Does your organization25% permit employees connect with customers and clients through 52% LinkedIn?23%
  10. 10. “Friending” Between Direct Reports 70 NEW FOR 2011! 60 50 40 30 20 10 0 h er o w m ot tt no th ro B or ei tf k ep N t or on R ep Id R
  11. 11. Does Your Organization Have A Social Media Presence? NEW FOR 2011! Facebook Twitter Wikipedia 100 90 80 70Percent 60 50 40 30 20 10 0 Yes
  12. 12. Does Your Organization Have A Social Media Policy? NEW FOR 2011! Yes No I dont know 70 60 50Percent 40 30 20 10 0
  13. 13. The Social Media LawyersInitiated in 2011 to provide a place where employers can get quick questions to workplace questions related to social media in the workplace.
  14. 14. Social Media & Labor Laws The National Labor Relations Board has now begun taking unfair labor practice charges related to employers disciplining employees for their social media comments. ***Beware that this applies even if you are non-union.****
  15. 15. Enforcement Power by the NLRB• What remedies – if any – are available to the NLRB if an employer violates one of the rules? – Backpay to a fired worker; – Reinstatement; – Court Injunctions; – Ordering an Employer to Bargain with a Union; – One of the few agencies that has the ability to investigate, rule, and seek enforcement. 18
  16. 16. You Make the Call #1Five employees do not like their co-worker. They believethe co-worker is a slacker and fakes illnesses to get out ofwork. They post derogatory messages on her Facebookpage containing obscenities and openly expressing theirnegative feelings toward her. The victim complains.Following an investigation, the five employees aredischarged for harassment under the company’s zerotolerance policy. Any problem with the discharges?
  17. 17. You Make the Call #1Most likely. Last week an administrative law judge of theBoard held that the five employees were engaging inconcerted protected activity for which they could not bedischarged. The judge held that the Facebook postingswere no different than “water cooler” talk and could not beinterfered with. He held that even though theconversations were not directed to the employer, becausethey involved terms and conditions of employment theywere protected. The judge ordered the employeesreinstated. An appeal to the Board is pending.
  18. 18. You Make the Call #2Employer is an ambulance service. Employer had a policyprohibiting disparaging comments when discussing thecompany or an employee’s superiors. An employee isasked by a supervisor to prepare an incident report about acustomer complaint about the employee. The employeeasked for a union representative to be present during thepreparation of the report. She did not get the union rep.Employee goes home and makes a negative post abouther supervisor on her personal Facebook page which drewsupportive comments from co-workers and further negativecomments about the supervisor. Employee is fired. Was itpermissible?
  19. 19. You Make the Call #2According to the NLRB, no. The policy prohibiting negativecomments was unlawful as likely to prohibit an employeefrom engaging in lawful activity.The NLRB further found that a discussion about anemployer’s refusal to comply with an employee’sWeingarten right and discussing a supervisor on Facebookwas protected activity.The termination was unlawful.
  20. 20. You Make the Call #3Employee is a reporter. His employer encourages him toopen a Twitter account and use twitter to get stories out.Employee gets a twitter account. Employee’s twitterbiography mentions that the employee is a reporter andnames his employer. Employee sends out a tweet criticalof the newspaper’s copy editors. Employer questions theemployee and orders him not to air internal grievances orcomment about the paper publicly. Employee then postsderogatory comments about homicides in the city andtweets negatively about a tv station. Employer terminatesemployee because of his repeated tweets damaging thenewspaper’s good will. Was the termination lawful?
  21. 21. You Make the Call #3According to the NLRB, yes. The reporters tweets werenot related to his wages, hours or working conditions. Inaddition, he was not tweeting in order to involve others inissues related to employer. Rather, he ignored hisemployer’s warnings about inappropriate tweets.The termination was lawful.
  22. 22. You Make the Call #4Employer 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 complainedto a relative that he was doing waitresses work without thetips. He called the restaurant’s customers “rednecks” andsaid he hoped that they choked on glass as they drovehome drunk. He didn’t discuss the posting with co-workersand none of them responded. The owner sent a facebookmessage to the employee telling him his services were nolonger needed. Was the termination lawful?
  23. 23. You Make the Call #4According to the NLRB, yes. Although the postingsconcerned terms and conditions of work, the employee didnot discuss the posting with co-workers and none of themresponded to the posting. There were no employeemeetings or any attempt to initiate group action concerningthe policy.The termination was lawful.
  24. 24. You Make the Call #5Employer provides emergency and non-emergencymedical transportation and fire protection services.Employee is a dispatcher. A Senator representing thestate in which the employer was located announced somefire districts were getting federal grants. Employee postson the Senator’s “Facebook Wall” that her employer onlygot its contracts because it was the cheapest in town, paidless than the national average and only two trucks for anentire county. She also posted that the company sent acrew who was unable to perform CPR to respond to acardiac arrest call. Employer terminates the employee forpublic posting of disparaging remarks and revealingconfidential information. Was the termination lawful?
  25. 25. You Make the Call #5According to the NLRB, yes. The employee did not discussher posting with any other employees, including herhusband who was an EMT. There were no employeemeetings regarding the posting. The employee also did notuse the postings as a way to complaint to management.The employee admitted that she did not expect the Senatorto assist her employment situation.The termination was lawful.
  26. 26. You Make the Call #6Employer was a retail store operator. Employee was acustomer service employee. Employee posts on Facebookcritical comments about a new Assistant Manager.Employee noted “tyranny” at the store and that theEmployer was going to get a wake up call when peoplequit. Co-workers posted asking why he was “wound up.”Employee respond by calling the Assistant Manager a“super mega puta” and complained about discipline. Oneco-worker posted a “hang in there” kind of comment. StoreManager gave the employee a one-day suspension whichprohibited promotion for 12 months. Was the disciplinelawful?
  27. 27. You Make the Call #6According to the NLRB, yes. The postings wereexpressions of an individual’s gripe. They expressed onlyfrustration with his individual dispute and did not containlanguage suggesting group action. The termination waslawful.
  28. 28. Questions• How far can an employer go relative to investigating an employee / former employee’s social media?• What if an employee leaves his or her Facebook account open – can an employer access that page?• Can an employer demand that the employee provide his or her password to their social media page during employment?
  29. 29. The Total Package of Policies• Use of Social Media Policy• Use of Computers, E-Mail, & Internet• Use of Cell Phones and Other Electronic Devices (including while driving)• Prohibition of Electronic Recordings• Ownership of Electronic Property and Its Contents
  30. 30. Questions We Get From ClientsCan an employer prohibitan employee from beinga Facebook friend with aclient?Couldn’t an employeeargue they were friendsbefore work?
  31. 31. An employer generally has the right to provide policieswhich govern the workplace. It is permissible for anemployer to have a specific policy which forbids employeesfrom “friending” clients. It might be virtually impossible toenforce and might engender bad feelings from a client, butan employer is generally free to do so. See the earlieranswer on off-duty conduct in the work place. As for thefriend argument, an employee certainly can make thisargument and, for that reason, employers need to considerwhether it is a good idea to have this restriction. Someemployees and clients might take offense and this couldpresent a practical problem. From a legal perspective, anemployee can make this argument but that does notchange the fact that an employer is generally free toprovide policies to govern the workplace.
  32. 32. Questions We Get From ClientsOur company has aFacebook page andTwitter site. How wouldyou guide us regardingpostings or commentsby employees – evenon their own time?
  33. 33. This is interesting issue that many employers are likely facing, or atleast will face as more and more businesses embrace the marketingpower that social networking sites offer. We would suggest that 3principles guide employers. First, employees generally have a dutyof loyalty to their employers. Employees should be reminded of thisduty and, in the best case scenario, be required to sign anacknowledgement of this duty before being permitted to postcomments on social networking sites. Second, employers shouldmonitor their “pages” or accounts with social networking sites. Apolicy means nothing unless it is enforced. As a result, employersneed to be prepared to take action to counsel or disciplineemployees that disparage their employers on a social networkingsite. Third, employers should seek counsel about whetheremployee postings on behalf of the employer on a social networkingsite might constitute compensable time worked, even if you believethat such postings are voluntary and off duty. Wage and hourissues are much more difficult than many might think and cannot beoverlooked.
  34. 34. Questions We Get From ClientsIf an applicant provides a link to their Facebookpage on their resume and the page contains theirviews on litigation and politics, can we look at itand use it?
  35. 35. If any applicant provides a link to a Facebook page, webelieve that there is a strong argument that the applicanthas invited the prospective employer to view thesite. Facebook may reveal a lot about a person,including their judgment (or lack of judgment). However,making an employment decision based on anemployee’s protected activities – such as filing a chargeof discrimination against an employer or pursuing adiscrimination lawsuit against an employer – can be aviolation of an applicant’s rights under federal and statelaws. Accordingly, if such information is discovered, itshould not be considered in the evaluation of theapplicant.
  36. 36. Questions We Get From ClientsWe have had troublegetting previousemployees to changetheir “title and company”on LinkedIn, i.e., our oldCEO still lists himself asa “current CEO.” Isthere anything we cando to get them tochange it? LinkedInwon’t change it.
  37. 37. There is very little you can do to convince a non-employee to correct a dated (and now incorrect)status. Many people believe that it is easier toget a job if you are already employed asopposed to being unemployed, so we expectthis type of problem will become morecommon. Other than a letter to the formeremployee requesting that they change the statusline, we see nothing that an employer can do toforce the change other than continuing tocontact LinkedIn.
  38. 38. Questions We Get From ClientsCan an employer be liable for the harassingFacebook posts of one employee toward another ifthe posts are made off-duty and off-premises?
  39. 39. This represents a real quandary for employers. First,assuming the employer is unaware of the posts, we donot believe that an employer will generally be held liablefor the off-duty conduct of one employee againstanother. Second, if the employee that is the subject ofthe posts complains at the company about the posts, thequestion would be whether or not the employer couldpolice off duty conduct if it wanted to. The employer maybe left with simply counseling the posting employeeabout conduct in the workplace. If the posts becomecriminal or threatening, the non-posting employee shouldbe encouraged to seek assistance with law enforcement.
  40. 40. Questions We Get From ClientsCan you include thelanguage in a socialmedia policy that says “allelectronic media currentlyin use today and anyother electronic media yetto be developed” whenaddressing what is and isnot acceptable in theworkplace?
  41. 41. Certainly, you can use that language, butthe question does suggest that the policyisnt reviewed regularly. We recommend aroutine review of this policy at leastannually. It is not possible to keep aheadof every development in this area.
  42. 42. Questions We Get From ClientsWhat, if any recourse, does aschool district or universityhave if students post lies aboutteachers or administrators onpersonal social mediaaccounts?
  43. 43. This question presents a very difficult situation that requiresattention to the specific facts. There has already been litigation oversuch issues, where a student was suspended by a public schoolafter she created a Facebook page to criticize a teacher. In thatcase, the court refused to dismiss the action and found that thestudent had engaged in speech protected by the First Amendment increating the page outside of school. Significantly, there was noevidence that the Facebook page and any items posted on the pagecaused the school any sort of disruption. Given this case, schooldistricts should be very careful in addressing any comments orinformation students post away from school. That said, if the postsfrom a student are simply not true, and more than just expressionsof opinion, such posts may rise to the level of beingdefamatory. Moreover, the posts may cause disruptions inschools. In those circumstances, a school may be able to takeaction to suspend or otherwise discipline a student. What a schoolmay do ultimately depends on the facts. Legal counsel is also likelya good idea to evaluate a school’s options.
  44. 44. Questions We Get From ClientsRegarding LinkedIn,can a firm prevent aformer employee fromrecommendingsomeone?
  45. 45. There is little that you can do to prevent a formeremployee from recommending another formeremployee or even a current employee either inwriting or on any social media site. If the formeremployees comments are false or misleading,you can always notify the former employee ofyour concerns, but other than that, there is littleyou can do. Occasionally, a letter from yourcounsel could encourage the former employeenot to make recommendations.
  46. 46. Questions We Get From ClientsIf an employer pays for the use of the internet but itis the employees phone, can the employer askthem not to use social networking?
  47. 47. An employer in these circumstances could very easily request thatan employee refrain from using their phone for social networking,especially during normal work hours. An employer could also veryeasily condition its payment of Internet or data services on a mobiledevice on an employee’s agreement not to use the device for socialnetworking. However, there are at least 2 problems with thisrestriction. First, it is unlikely that an employer can effectivelyenforce or monitor this restriction. The employer does not have anownership interest in the device and likely does not have thenecessary access to monitor usage. Second, what constitutes“social networking” is rapidly developing. While Facebook prettyclearly falls within the definition, some might not think of certainother online sites or sources as “social networking.” As a result, thepotential for misunderstandings with employees seems high. Withthis in mind, in most states, it is likely permissible for an employer toprohibit the use of data services for social networking applicationson a mobile device during normal work hours. It will be difficult, ifnot impossible, to enforce, but it is likely permissible to have thisrestriction.
  48. 48. QR Codes and Microsoft Tags• Microsoft Tag: High Capacity Color Barcode (HCCB) is the name coined by Microsoft for its technology of encoding data in a 2D “barcode” using clusters of colored triangles instead of the square pixels traditionally associated with 2D barcodes
  49. 49. QR Codes and Microsoft Tags• A QR Code is a specific matrix barcode (or two- dimensional code), readable by dedicated QR barcode readers and camera phones. The code consists of black modules arranged in a square pattern on a white background. The information encoded can be text, URL or other data.
  50. 50. QR Codes and Microsoft Tags So, how could these QR Codes andMicrosoft Tags be used in the workplace?
  51. 51. All is not what it seems…To: Jan (at home)From: DaveDate: March 1, 2011Re: Dance Lessons tonight for KaraCan you take her tonight?
  52. 52. All is Not What it Seems The key guy at SmithCo is Brad Johnson. Our rate per box is $2.50. Our supplier - Yan Systems of Taiwan (Jerry Yee is the contact) gets it to us for $1.10 per box.
  53. 53. All is not what it seems…To: Bill HanrahanFrom: Aaron SmithsonDate: March 1, 2011Re: Just Over Heard Nancy Discussing Oklahoma ExhibitionHad No Idea She was a fan.
  54. 54. All is not what it seems.This is a Microsoft Code with a password connected to it. Just Over Heard Nancy Discussing Oklahoma Exhibition = johndoe Just spoke to Alan. He’s having an affair with Glenda in the copy center. He’s getting her to provide him copies of the executive reports when she copies them. We’ll get those before we resign
  55. 55. QR Codes and Microsoft Tags• While they can provide links to web addresses, they can be used to provide information to others.• Does your social media policy or your internal policies address the use of QR codes or similar encrypting mechanisms?• Could you tell if someone generated a QR code with your pricing or client information and then took a picture with their smart phone?
  56. 56. Questions• How far can an employer go relative to investigating an employee / former employee’s social media?• What if an employee leaves his or her Facebook account open – can an employer access that page?• Can an employer demand that the employee provide his or her password to their social media page during employment?
  57. 57. Stored Communications Act• Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 9/25/2009) – Employer violated the SCA when it used an employee’s log-on information to access a chat group on, even though the employee had provided her log-on information to her managers.
  58. 58. Stored Communications Act• Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D.N.Y. 2008) – Employer violated the SCA and a former employee’s privacy by accessing employee’s personal e-mail accounts with username and password stored on computer.
  59. 59. Expectation of Privacy• Shefts v. Petrakis, 758 F.Supp.2d (C.D.Ill, 2010) – Based on Employer’s policies, employee did not have a reasonable expectations of privacy in communications sent over employer’s network.
  60. 60. Expectation of Privacy• Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D.Or. 9/14/2004) – Based on the employer’s policies, the employee did not have a reasonable expectation of privacy in communications sent over employer’s network.
  61. 61. Expectation of Privacy• Smyth v. Pillsbury, 914 F.Supp. 97 (E.D. Penn. 1996) – Employee did not have a reasonable expectation of privacy in e-mails exchanged with supervisor over company e-mail system despite employer’s assurances that the communications would be confidential and privileged.
  62. 62. Expectation of Privacy• Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) – Employee had a reasonable expectation of privacy in e-mails exchanged with her attorney via her personal Yahoo! Mail account while using a company laptop, even though employer’s written policy stated that the company may access “all matters on the company’s media systems and services at any time.”
  63. 63. Expectation of Privacy• In February, 2011,the Maryland Dept. of Public Safety and Correctional Services – following criticism from the American Civil Liberties Union – suspended its practice of asking applicants to provide social media account usernames and passwords for use in employee background checks.
  64. 64. Discovery of Social Media Content• E.E.O.C. v. Simply Storage Management, U.S. Dist. Court for S.D. Indiana (May 11, 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.
  65. 65. Discovery of Social Media Content• The EEOC objected arguing based on 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.
  66. 66. 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.”
  67. 67. Discovery of Social Media Content• Crispin v. Christian Audigier, Inc., U.S. Dist. Court for the Central District of California (May 26, 2010)•• Employer sought postings on Facebook, MySpace and Media Temple.• Court quashed a subpoena to the extent it sought private e-mail messages through the site as protected under the Stored Communications Act.
  68. 68. Discovery of Social Media Content• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist. Ct. M.D. of Tenn.• Plaintiff claims she fell from a bar at a “Coyote Ugly” saloon in Nashville. She argued that the bar was wet and slick and when she tried to climb onto the bar hit her head.• Defendant subpoenaed Facebook for plaintiffs Facebook information, including photos of plaintiff and her friends dancing on the bar.
  69. 69. Discovery of Social Media Content• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist. Ct. M.D. of Tenn.• The Defendant subpoenaed the friends of the Plaintiff for their pictures of the Plaintiff on the bar.• The Plaintiff moved to quash.
  70. 70. Discovery of Social Media Content• The court ruled: – “In order to try to expedite further discovery regarding the photographs, their captions and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.”
  71. 71. Dave