TAKE THIS JOB AND TWEET IT: Best Practices for Dealing with Social Media Larissa DeanWest Virginia North Carolina Pennsylvania Virginia www.spilmanlaw.com
In 2011, 42% of corporate compliance officers reported disciplining for misusing social media applications.
But only 31% of organizations had specific policies related to social media.
Statutes at Issue• Electronic Communications Privacy Act (“ECPA”): Prohibits interception of electronic communications such as email. – Invoked by employees seeking privacy protection of electronic data to prevent against screening.• Stored Communications Act (“SCA”): Protects information stored electronically. – Waiver of SCA protection by user consent.• National Labor Relations Act (“NLRA”): Protects employees’ rights to engage in “protected concerted activities.” – The next wave of litigation?
What are the risks of Social Media? Hostile work environmentTextual Harassment: sending inappropriate messages through cell phone or other web 2.0 mediums of communication.Risks: same as traditional harassment, courts may hold employers liable for their employees’ harassing behavior.
Textual Harassment• New mediums of communication become platforms for employee harassment.• Texts allow employees to be discreet.• No concern with an email or text message that a supervisor will overhear.• Low risk of confrontation after sending message.
Gainey v. Bluecross Blue Shield of South Carolina• Plaintiffs (both men), one the victim’s supervisor, sent sexually charged text messages (graphic pictures, sexual propositions, suggestions that sexual involvement would further her career) to a female co-worker from their personal cell phones.• Victim saved the text messages and contacted the Director of Incident Management and HR.• Plaintiffs were suspended without pay during the investigation and then terminated.• Plaintiffs brought Title VII claim of disparate discipline and claim of defamation based on BCBS causing it to be “well-known in the workplace...*they+ had been suspended for alleged sexual harassment.”• Court dismissed Title VII claim on grounds that one Plaintiff was a supervisor and had a higher disciplinary standard, and the second Plaintiff already had an Employee Corrective Action Report filed against him for inappropriate conduct.• Court dismissed defamation claim because Plaintiff presented only hearsay statements to support claim that BCBS “published” their termination on the basis of sexual harassment.Gainey v. BCBS of SC, 3:09-986-JFA-JRM, 2010 WL 3699871 (Aug. 9, 2010).
Kurtts v. Chiropractic Strategies Group (CSG), Inc.• Plaintiff, a receptionist, received “numerous lewd and sexually offensive text messages at all hours of the day and night” from her direct supervisor.• Plaintiff reported text messages to CSG’s clinic administrator, said she no longer felt comfortable at work, and resigned that same day.• Plaintiff reported her case to the EEOC, received a right to sue letter, and filed an action against CSG raising claims of sexual harassment, negligent hiring, supervision, and training, among others.• Court acknowledged CSG’s well-established procedure for reporting complaints of sexual harassment outlined in the Policy Manual.• Summary Judgment granted in favor of CSG because Plaintiff resigned at the same time she reported complaint and gave company no time to remedy the situation.Kurtts v. Chiropractic Strategies Grouopr, Inc., 09-0712-M, 2011 WL 833978 (Mar. 4, 2011).
Morrow Botros v. Williams Lea• Plaintiff, an office services associate, alleged that his direct supervisor sent him multiple text messages that were sexually explicit and related to his sexual orientation.• Plaintiff complained to the senior HR specialist that text messages were sent at all hours of the day and night.• Plaintiff was terminated for bringing a “conflict” to the work environment, and supervisor was also terminated after investigation.• Plaintiff brought claims of discrimination, harassment, and retaliation against employer, Williams Lea.• Summary Judgment for the employer denied because Plaintiff presented enough evidence of a hostile environment for sexual-orientation harassment claim to proceed and issue existed as to whether Defendant took steps to prevent and correct discrimination.Morrow Botros v. Williams Lea, 09-CV-1762 H (RBB), 2010 LEXIS 54301 (June 1, 2010).
NLRA Issues “Talking Smack” About the Boss• The NLRB has held that the use of “rhetorical hyperbole” to emphasize disapproval of management does not remove the speech from the NLRA’s protection.• Unbelievable – but completely true.• Case-by-case analysis.
NLRA Issues Sharing Pay Information with Co-workers“A rule prohibiting employees from communicating with each other regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted activity.” NLRB v. Main Street Terrace Care Center, 218 F3d 531 (6th Cir. 2000).
NLRA IssuesProhibiting Discussion of Harassment Complaints• During investigations, employers often tell witnesses/employees not to discuss the complaint among themselves.• Phoenix Transit System case before the NLRB.
NLRA Issues Restricting Employee E-mail Message Use• Guardian Publishing, Register-Guard case NLRB (2007).• Can always restrict if business-only (unrealistic).• Can restrict solicitation as long as the employer generally prohibits solicitations (can limit to a charity).• If e-mail used for personal purposes, then must compare union-related e-mail to other permitted uses.• Can also be a vehicle for protected concerted activity.
NLRA Issues Employee Rights to Solicit and Distribute LiteratureEmployees may:• Solicit other employees during their non-working time; and• Distribute literature to other employees during non-working time and in non-working areas.Except healthcare (employer can limit in patient care areas) and retail (employer can limit sales floor).
Social Media Policies• Not a question of whether, but how to deal with social media.• Social media policies: – At work access to social networks – After hours behavior
Social Media Policies Starting Point:Assess needs, nature and culture of the business
Social Media Policies• Look at and reference other policies: – Non-discrimination and harassment – Electronic communications – Confidentiality – Conflicts of Interest – Data protection – Antitrust – Intellectual property – Corporate code of conduct
Social Media Policies The Basics1. Employee must read and sign at outset.2. Require adherence to company code of conduct/values. – No slurs, demeaning jokes, sexist terms, offensive photos, etc.3. Prohibit disclosure of confidential information.4. Remind employees of their own personal responsibility for posts.
Social Media Policies The Basics5. Disclaimers – reflect content of post as being author’s opinion alone.6. Limit blogging, tweeting, facebooking while on the job to business-related purposes.7. Violation can lead to discipline, up to and including termination.
“At Work” Guidelines1. Employer’s communications systems and devices should be used for business-related purposes.2. Employees should not expect any privacy.3. Permit reasonable use of social media for work- related purposes (such as research or to participate in audio conferences or webinars).
“At Work” Guidelines4. Require written approval from supervisors that outlines use of social media before using it for work-related purposes.5. Note the websites that require employees to log- in for use.6. Prohibit personal use of electronic communications systems and devices for social media purposes regardless of whether such use occurs during work or non-work time.
“Off The Clock” Guidelines1. Respect an employees’ right to express personal opinions when using personal social media web pages.2. Do not retaliate or discriminate against employees who use social media for political, organizing, or other lawful purposes.
“Off The Clock” Guidelines3. Remind employees of your code of conduct and social media policies before they discuss work-related activities on their personal social media web pages.
“Off The Clock” Guidelines4. “Employer protects its copyrights, trademarks, patents, trade secrets, customer lists, and other sensitive proprietary, and confidential material. Do not display or disclose such material through social media without prior written approval from Employer.”
“Off The Clock” Guidelines5. “Employees cannot use social media to disparage or embarrass Employer or its management, practices, products, or services, or otherwise harm Employer’s reputation.”
Sears’ Social Media PolicyIn order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:1. Company confidential or proprietary information;2. Confidential or proprietary information of clients, partners, vendors, and suppliers;3. Embargoed information such as launch dates, release dates, and pending reorganizations;
Sears’ Social Media Policy4. Company intellectual property such as drawings, designs, software, ideas and innovation;5. Disparagement of Company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects;6. Explicit sexual references;
Sears’ Social Media Policy7. Reference to illegal drugs;8. Obscenity or profanity;9. Disparagement of any race, religion, gender, sexual orientation, disability, or national origin.
Sears’ Social Media Policy The NLRB “draft” opinion• The policy does not explicitly restrict protected activities.• Sears did not issue the policy in response to union activity or use it to restrict employees’ NLRA rights.• Sears’ policy “cannot reasonably be interpreted to prohibit ... protected activity.”
Social Media and Hiring• 50% of web users say they would be embarrassed if their employer visited their social networking site.
Social Media and HiringWhy look at social media during the hiring process? – Obtain information you would not receive in an interview or resume. – See if an individual fits the “culture” of your corporation. – Determine if the individual poses any specific risk to your business.
Social Media and HiringCons:• Information you do not want to know• Privacy issues• Publicity issues• Litigation risks
The RisksDiscrimination – Access to profile provides information you may not want imputed to your employment decision, e.g., race, pregnancy status, age, disability, religion, genetics, etc. – Allows applicant to argue that employer relied on improper characteristic. – Could lead to both disparate impact and disparate treatment claims.
Potential Corporate LiabilityHarassment, Discrimination and Defamation – Is employee acting within scope of duties when posting? – To what extent does the employer have the right/obligation to control or monitor?
The RisksFair Credit Reporting Act – Governs “employment background checks for the purpose of hiring.” – Only applies if employer uses a third-party screening company to conduct the check. – Do the checks internally, rather than using an outside service?
Potential Corporate LiabilityFor Posting Positive Information / Endorsements• FTC guidelines impose liability for failing to disclose “material connections.” 16 C.F.R. §225.• Employee posting opinion about employer’s product must notify reader that he/she is an employee.• Potential violation even if information is true.
Potential Corporate Liability• Concerted protected activity (e.g., discussing wages and working conditions, emailing coworkers about new vacation policy).• Whistleblower status (e.g., Sarbanes Oxley).• Support co-worker who filed charges.
Social Media Policies Enforcement• Avoid management overreaction – No first amendment rights in private sector. – All negative comments warrant discipline.
Discipline / TerminationPros:• Catch employee misconduct: – Dishonesty about need for absence – Harassing/discriminating behavior – Disclosing confidential information – Badmouthing company (but watch for protected activity!) – Illegal conduct• Avoid negligent retention claim
Discipline / TerminationCons:• Risk of inconsistency• Risk of making decision based on incorrect information• Bad publicity for company• Increased likelihood of litigation
Discipline / TerminationProtected content – National Labor Relations Act – Political (some state statutes) – Religion or other protect category – Whistleblowing conduct
Headline-Making Events• Delta Airlines Flight Attendant Fired For Provocative Pictures On Website.• Oregon Mayor Recalled Because of Lingerie Photo On MySpace Page.• Teacher Denied Education Degree Because Of Photo On MySpace Page Captioned, “Drunken Pirate.”• Pennsylvania Law Student’s Job Offer Rescinded Upon Discovery Of Association With Website Containing Anti- Female Statements.• Yale Law Students’ Lawsuit Against Anonymous Blog Posters.
TAKE THIS JOB AND TWEET IT: Best Practices for Dealing with Social Media Larissa DeanWest VirginiaNorth Carolina Pennsylvania Virginia www.spilmanlaw.com