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Government agencies are expanding their focus on employees’ rights, social media, and other employer policies and it is not just social media policies that are being invalidated. Susan and Nick discuss how recent changes in social media law might affect your company’s confidentiality policies, hiring policies and practices, and discrimination and harassment policies.

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  1. 1. 25th ANNUAL EMPLOYMENT LAW SEMINARDo Your Company’s PoliciesNeed a Social Media Overhaul?Susan Baird MotschiedlerNicholas U. FrandsenApril 9, 2013Salt Lake City
  2. 2. Introduction With Social Media Every Employee – Is a broadcaster – YouTube – Is a journalist – CNN iReport – Is an expert – Wikipedia – Is a network – facebook, Linkedin, Twitter Social Media is expanding quickly Employers and employees use it 2
  3. 3. Social Media As an employer, why should you care about social media? 3
  4. 4. Employer/Employee Issues Employers use Social Media for hiring, job site management, intra company communications, advertisements, morale, discipline 4
  5. 5. Expanding Work Place Social Media is the new water cooler Work place is not just brick and mortar building Work place conversations don‟t just take place from Monday through Friday from 9am to 5pm. 5
  6. 6. Liability for your company Employer discrimination during hiring – Company could learn protected class information about an employee which impacts hiring, termination, or other adverse employment decisions – Example: what if you saw an employee or potential employee‟s Facebook page and it showed the employee scantily clad, discussed her health problems, identified religion, announced pregnancy, or revealed she was over 40? 6
  7. 7. Liability for your company Co-worker harassment – Social Media expands the forum in which harassment can take place – A recent government study uncovered that 23% of harassment victims were targeted through text messaging, e-mail or other digital forms. – With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof. 7
  8. 8. Employer/Employee Issues Because Social Media adds to the ways an employer can be liable, employers must determine what sort of Social Media management they want to implement To limit this liability, employers should maintain meaningful yet lawful Social Media policies 8
  9. 9. Federal Agencies getting involved Equal Employment Opportunity Commission (EEOC): Responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee due to race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information National Labor Relations Board (NLRB): protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions 9
  10. 10. EEOC No Specific regulation or advise on Social Media yet August 24, 2012 training workshop: will be increasing scrutiny of Social Media impact on discrimination laws EEOC has joined the NLRB on a number of issues and has signaled intent to screen all discrimination complaints for NLRB violations 10
  11. 11. EEOC Hiring Policies – EEOC is stepping up its scrutiny of potentially discriminating hiring practices – Avoid making employment decisions based in whole or in part on membership in a protected class (race, religion, etc.) revealed through Social Media – If you must access social media for screening, have a buffer (i.e. non-decision maker accesses and filters out any info) Best practice: don‟t use social media in hiring process 11
  12. 12. Hiring Policies New law in California: Employers prohibited from requiring or requesting that an employee or applicant – Disclose his or her Social Media username or password – Access his or her personal Social Media in presence of employer – Divulge any personal Social Media information Applauded as triumph for the privacy of employees and applicants Illinois and Maryland have similar laws 12
  13. 13. EEOC Consider previous example of the pregnant employee who was terminated before she was clearly “showing” on the basis pregnancy discrimination Employee will typically need to show that the decision maker was aware of the pregnancy when the termination decision was made If the employee can establish that she prominently posted her pregnancy on Social Media, and that decision maker had knowledge (for example, by being her facebook friend), the employee will have a better chance of getting her case before a jury 13
  14. 14. EEOC How does an employer protect itself in this scenario? – Can‟t have a blanket ban on “friending”, this likely violates right to engage in “protected concerted activity” (discussed later) – Impractical, bad recruiting Possibly implement policy restricting supervisors from friending subordinates Expect to see the EEOC ramp up enforcement in this context in the near future 14
  15. 15. NLRB NLRB has been one of the most active agencies and has issued three reports concerning Social Media Cases: – August 18, 2011 – January 24, 2012 – May 30, 2012 Two primary topics – Employer policies regarding employee use of Social Media – Discipline and discharge of employees related to their use of Social Media 15
  16. 16. National Labor Relations Act (NLRA) Protects both union and non-union employees Covers “for profit” and “not for profit” organizations Does not cover public-sector entities 16
  17. 17. NLRA – Section 7 Section 7 of the National Labor Relations Act provides: – “Employees shall have the right to self- organization, to form, join or assist labor organizations to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” (emphasis added) 17
  18. 18. NRLA – Section 7 Has been interpreted to allow employees to: – Discuss, comment on, complain about, and seek to change their wages, benefits and working conditions – Express concerns about how they are treated, employee discipline and discharge issues, and other matters relating to their terms and conditions of employment 18
  19. 19. NLRA - Section 7 To be covered by Section of the NLRA, the activity must be both: – “Concerted” – “Protected” The definition of Concerted and Protected activity has been expanded in recent years and includes activity on Social Media 19
  20. 20. Concerted Activity Concerted Activity: – “engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” Myers Industries, 281 NLRB 882 (1986) – Includes the activities of a single employee in enlisting the support of fellow employees in mutual aid and protection, as well as group activity 20
  21. 21. Protected Activity Protected Activity: – About terms and conditions of employment and not so disloyal, malicious, or disruptive to workplace discipline as to lose the NLRA‟s protection 21
  22. 22. Some concerted activity is not protected Concerted Activity may lose protection when Social Media communication: – Interferes with the employee‟s own work or that of other employees – Interferes with or disrupts the employer‟s operations – Undermines workplace discipline, or – Materially disparages the employer‟s products or services – (i.e. outbursts, extreme profanity or vulgarity, threats of violence extremely defamatory, etc.) 22
  23. 23. Unlawful Employer Policies Work rules and policies, including those relating to social media use, are unlawful if they “would reasonably tend to chill employees in the exercise of the Section 7 rights.” Even when a policy does not explicitly restrict protected activities, it will violate the NLRA if: – Employees would reasonably construe the language to prohibit Section 7 activity – The rule was promulgated in response to union activity – The rule has been applied to restrict the exercise of Section 7 rights 23
  24. 24. Unlawful Employer Policies Violation of the NLRA occurs even if the employer never enforces the policy in a way that infringes on Section 7 rights Unlawful policies constitute an unfair labor practice and could subject the employer to a cease-and-desist and notice-posting remedy 24
  25. 25. Policies that could be affected• Courtesy/Respect/Good Conduct Policies• Harassment Investigation Policies• Social Media Policies• Company Trademark and Logo Policies• Company Loyalty/Non-disparagement Policies• Media Contact Policies• Confidential Information Policies• Prohibitions on Revealing Compensation• Complaint/Resolving Concerns Policies 25
  26. 26. Employer Policies Moving target, decisions still in flux Most current policies are overbroad despite good intentions NLRB has broad interpretation of concerted protected activity: – Employees would reasonably construe the language to prohibit Section 7 activity – Employees presumed to know Section 7 rights and vague language likely to “chill” such rights 26
  27. 27. Social Media/Handbook Policies Courtesy/Respect/Tone Policies – Ex. 1: “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors, and suppliers, as well as their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Knauz BMW and Robert Becker, 358 NLRB No. 164 (Sept. 28, 2012) 27
  28. 28. Social Media/Handbook Policies– NLRB: Ex. 1 is unlawful because employees would reasonably construe it as encompassing employees‟ protected communications, including criticism of working conditions • “Courteous” = aspirational = lawful • The rest went beyond “the positive aspirational language of the first section” to “proscribe messages and communications potentially critical of the company.”Knauz BMW and Robert Becker, 358 NLRB No.164 (Sept. 28, 2012) 28
  29. 29. Social Media/Handbook Policies Ex. 2: Policy requiring that social networking communications be made in an honest, professional and appropriate manner, without defamatory or inflammatory comments regarding the employer, its subsidiaries, and their shareholders, officers, and employees 29
  30. 30. Social Media/Handbook Policies NLRB General Counsel: – Unlawful because employees would reasonably construe broad terms, such as “professional” and “appropriate,” to prohibit them from communicating on social networking sites with other employees or with third parties about protected concerns Solution – Limit politeness and tone policies to aspirational statements, do not “require” 30
  31. 31. Social Media/Handbook Policies Policies Addressing Harassment/Discrimination – Ex. 1: Policy prohibited “discriminatory, defamatory or harassing” web entries about specific employees, work environment, or work-related issues on social media sites 31
  32. 32. Social Media/Handbook Policies NLRB General Counsel: – The listed prohibitions, which contain broad terms such as “defamatory” entries, apply specifically to discussions about work-related issues, and would arguably apply to protected criticism of the employer‟s labor policies and treatment of employees – GC also does not like use of “inappropriate” without additional context 32
  33. 33. Sample Harasment Policy Inappropriate Conduct Rewritten Policy was found lawful – Added context and reference to other policies “You may not use social media cites to post or talk about coworkers, supervisors, or the employer in a manner that is harassing, sexually harassing, or discriminatory, or that threatens safety as it is defined in [other policy and anti- discrimination and harassment policy]. As an example, you should not post a comment about your coworker that is vulgar, obscene, threatening, intimating or hostile on account of age, race, religion, sex, ethnicity, nationality, disability or other protected class, status or characteristic.” 33
  34. 34. Social Media/Handbook Policies Policies regarding Use of Intellectual Property – Ex. 1: “Respect all copyright and other intellectual property laws. For [Employer‟s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer‟s] own copyrights, trademarks and brands. Get permission before reusing others‟ content or images. 34
  35. 35. Social Media/Handbook Policies Policies regarding Use of Intellectual Property – Urging respect for IP is fine – Requiring permission for use of IP violates Section 7 because it would interfere with an employee‟s protected right to take and post photos of employees on a picket line, or employees working in unsafe conditions – Employees can use your trademark/logo in connection with Section 7 activity (i.e. post your logo on protest signs) – Company can prohibit labeling another product with company trademark or logo (Lanham Act) 35
  36. 36. Social Media/Handbook Policies Confidential Information Policies – Ex. 1: Policy prohibiting employees from disclosing or communicating confidential, sensitive or non-public information concerning the company on or through company property to any outside the company without prior approval of senior management or the law department 36
  37. 37. Social Media/Handbook Policies NLRB General Counsel: – Employees would reasonably understand this provision to prohibit them from communicating with third parties about Section 7 issues such as wages and working conditions – The employer failed to provide any context or examples of the types of information it deems confidential, sensitive or non-public in order to clarify that the policy does not prohibit Section 7 activity – Policy further violates the NLRA because it requires prior employer approval before engaging in protected activity 37
  38. 38. Social Media/Handbook Policies Unlawful Confidential Information Policies – Ex. 2: Policy regarding “Information Security” provided: “. . . Please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer online] . . . *Don’t release confidential guest, team member or company information. . . .” 38
  39. 39. Social Media/Handbook Policies NLRB General Counsel: – Employees would reasonably understand this provision to prohibit them from discussing and disclosing information regarding their own conditions of employment as well as the conditions of co-workers – Includes compensation (wages) information, health information, etc. • All are fair game for employee conversation 39
  40. 40. Social Media/Handbook Policies Ex. 2: Policy regarding non-public information stated: “ . . . You must . . . Not reveal non-public company information on any public site. . . When in doubt about whether information is [non-public], Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea” Examples of non-public information included: – Financial performance; safety performance of systems or vehicles; secret information – Health, performance, or compensation information about another employee 40
  41. 41. Social Media/Handbook Policies NLRB General Counsel: – Employees would reasonably understand the provision to prohibit discussion and disclosure of information regarding conditions of employment – Cannot require Company permission to post – [Disclosure of health information and compensation information is protected, unless employee learned the information through access he or she has as part of formal employee duties] 41
  42. 42. Lawful Confidential Information Policies Rule in social media policy provided that employees were to confine their social networking to matters unrelated to the employer if necessary to ensure compliance with securities regulations and other laws 42
  43. 43. Lawful Confidential Information PoliciesConfidential and Proprietary Information Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade 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. 43
  44. 44. Lawful Confidential Information PoliciesConfidential and Proprietary Information Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy. 44
  45. 45. Lawful Permission Policies Representing the CompanyExpress only your personal opinions. Never represent yourself as aspokesperson for [Employer]. If [Employer] is a subject of thecontent you are creating, be clear and open about the fact that youare an associate and make it clear that your views do not representthose of [Employer], fellowassociates, members, customers, suppliers or people working onbehalf of [Employer]. If you do publish a blog or post online relatedto the work you do or subjects associated with [Employer], make itclear that you are not speaking on behalf of [Employer]. It is best toinclude a disclaimer such as “The postings on this site are my ownand do not necessarily reflect the views of [Employer].” 45
  46. 46. Lawful Permission Policies Contact with Media Employees should not speak to the media on [Employer‟s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them. 46
  47. 47. Social Media/Handbook Policies Savings Clause – Ex. 1: – “This Social Media Policy is not to be interpreted or applied so as to interfere with employee rights to self- organize form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from engaging in such activities.” 47
  48. 48. Social Media/Handbook Policies NLRB General Counsel: – Savings clause was insufficient to cure ambiguities and remove the chill upon Section 7 rights – “An employee could not reasonably be expected to know that [the savings clause] encompasses discussions the Employer deems „inappropriate.‟” 48
  49. 49. Lawful Sample Policy Savings Clause “This policy is not intended to interfere with your right under the National Labor Relations Act to discuss wages, working conditions, benefits, or other terms of employment, to act in concert (i.e. together) with other employees, or to form a union, but making comments that are knowingly false or maliciously untrue is not allowed. If you are having a workplace conflict with a coworker or supervisor, COMPANY hopes that you will use our internal grievance procedures or seek help from Human Resources before you post it on the internet for others to see.” 49
  50. 50. Crafting Social Media Policies and Handbooks Written Social Media/Electronic Communications Policy – Think about how policy will affect both company and employee morale – Explicitly address technologies (blogs, You Tube, facebook, Google+, Pinterest) – Update regularly – social media is quickly evolving – Address use of company time to access social media • Possible to prohibit? – Address use of company resources to access social media – Reserve the discretion to the monitor employee activity on company resources 50
  51. 51. Crafting Social Media Policies and Handbooks Written Social Media/Electronic Communications Policy (cont.) – Clearly identify prohibited conduct and disciplinary measures that will follow • Avoid broad and vague terms • Use examples and descriptions to give context – Include clear guidance on the following, if applicable to your company • Intellectual property assets (trademarks, logos, patents) • Confidential and material non-public information • Third-party confidentiality and privacy • Dishonest statements regarding the company • Name laws and regulations that apply (Federal Trade Commission, SEC, HIPPA regulations) 51
  52. 52. Crafting Social Media Policies and Handbooks Written Social Media/Electronic Communications Policy (cont.) – Require disclaimers from employees that they are posting in their personal capacity and do not represent the company • Minimizes chance that language/behavior will be imputed to company – Prohibit posting on behalf of the company – Prohibit untruthful statements about the company – Have NDA‟s, non competes, and non solicitation agreements separate from policy and/or handbook – Include savings clause, but do not rely solely on savings clause 52
  53. 53. Sample Policy Expectations of Privacy “All contents of COMPANY‟S electronic communications assets and systems are the property of the company. Employees should have no expectation of privacy whatsoever in any data in any format or any other kind of information or communications transmitted to, received or printed from, or stored or recorded on the company‟s electronic communications assets and systems.” 53
  54. 54. Sample Policy Monitoring “COMPANY reserves the right to monitor all employee usage of the company‟s electronic communications assets and systems and to intercept and review any communication, in any format, using those assets and systems, including but not limited to social media postings and activities. You consent to such monitoring by your acknowledgement of this policy and your use of such assets and systems.” 54
  55. 55. Sample Policy Best Practices “If you identify yourself as an employee of COMPANY, include a disclaimer that your views do not represent those of COMPANY. If you communicate about your work or the company in general, disclose your position at COMPANY. Remember that anything you say can reflect on the company, even if you include a disclaimer. Strive to be accurate. Remember that your posts could result in liability for yourself or COMPANY. Be respectful. Be professional. Be honest.” 55
  56. 56. NLRB Sample PolicyThe May 30, 2012 NLRB Memo in yourmaterials contains an entire Policy on pages22-24 that was approved by the NLRB 56
  57. 57. Disciplinary Action Associated with Social Media Use Must address things that happen on line, off the work site, and not during work time Happens fast Numerous issues in same post – Can have protected posts mixed in with harassing posts from the same person As employer, must act fast but perform thorough investigation and accurately characterize posts/communications 57
  58. 58. Disciplinary Action Associated with Social Media Use Factors leading NLRB to conclude that social media posts are concerted: – They relate to earlier discussions among employees about the issue – They relate to earlier discussions with management about the issue – They ask the assistance of other employees with the issue or reference future efforts to discuss the issue with the employer – Other employees respond to the posts and support the concerns as a group 58
  59. 59. Disciplinary Action Associated with Social Media Use Disciplining or discharging an employee pursuant to an unlawfully overbroad social media rule violates the NLRA when the employee violated the rule while engaging in protected conduct Discharging an employee who was not engaged in concerted conduct does not violate the NLRA, even if the social media rule is unlawful 59
  60. 60. Unlawful Disciplinary Actions A non profit terminated five employees for their conversation on Facebook that began on a Saturday 10:14 a.m. and was finished by 10:30 p.m. LC had contacted MCR that morning, and let her know she was going to approach a supervisor regarding LC‟s unhappiness with MCR and others‟ job performance:MCR: “LC, a coworker feels that we don‟t help our clients enough atHUB I about had it! My fellow coworkers how do u feel?DPN” What the f. . . Try doing my job I have 5 programs.LR: What the Hell, we don‟t have a life as is, What else canwe do??? 60
  61. 61. Unlawful Disciplinary ActionsYC: Tell her to come do my [f‟ing] job n c if I don‟t doenough, this is just dum.COJ: I think we should give our paychecks to our clients so theycan “pay” the rent, also we can take them to their Dr‟s appts, andserved as translators (oh! We do that). Also we can clean theirhouses, we can go to DSS for them and we can run all theirerrands and they can spend their day in their house watchingtv, and also we we can go to do their grocery shop andorganized the food in their house pantries. . . (insert sarcasmhere now). 61
  62. 62. Unlawful Disciplinary ActionsMCR: Lol. I know! I think it is difficult for someone that its not atHUB 24-7 to really grasp and understand what we do .. I will giveher that. Clients will complain especially when they ask forservices we don‟t provide, like washer, dryers stove andrefrigerators, I‟m proud to work at HUB and you are all my familyand I see what you do and yes, some things may fall thru thecracks, but we are all human  love ya guys....LCM [person about whom the post complained]: Marianna, stopur lies about me. I‟ll b at HUB Tuesday . . 62
  63. 63. Unlawful Disciplinary ActionsMCR: Lies? Ok. In any case LCM, Magalie is inviting us overto her house today after 6PM and wanted to invited you butdoes not have your number I‟ll inbox you her phone number ifyou wish… 63
  64. 64. Unlawful Disciplinary Actions LCM complained to management Five of the employees were terminated on the grounds that there posts constituted bullying and harassment and violated the Company‟s policy on harassment 64
  65. 65. Unlawful Disciplinary Actions NLRB found communication protected because it was made in reaction to a co-worker‟s criticism of their job performance Did not matter that employees had not taken concerns to employer The employees had banded together and were taking initial steps to engage in “mutual aid” and “group action” Communications did not fall under employer‟s discrimination and harassment policyHispanics United of Buffalo, Inc. and Carlos Ortiz, 3-CA-27872 (Dec. 14, 2012) 65
  66. 66. Lawful Disciplinary Actions Knauz BMW and Robert Becker, 358 NLRB No. 164 (Sept. 28, 2012) – Becker was a salesman at the dealership – Dealership was adjacent to a Land Rover dealership with common ownership – Becker was terminated after making 2 postings: • Sales Event • Land Rover Accident 66
  67. 67. Lawful Disciplinary Actions Sales Event Posting – Dealership had a release event for new BMW – Served cheap food: hot dogs, chips and bottled water – Becker posted pictures of the food – “I was happy to see that Knauz went „All Out‟ for the most important launch of a new BMW in years.” – Prior to posting, Becker and coworkers had expressed concern that the food served would affect their sales and commissions 67
  68. 68. Lawful Disciplinary Actions Land Rover Incident Posting • Incident at the adjoining Land Rover dealership • Land Rover salesman allowed a customer‟s 13-year- old son to sit in the driver‟s seat of a Land Rover. The child put the vehicle in gear and drove the car over the customer‟s foot, down an embankment, and into a pond • Becker took and posted pictures on the accident on Facebook, criticizing the salesman‟s choice – “This is your car: This is your car on drugs.” • Several coworkers left comments 68
  69. 69. Lawful Disciplinary Actions– Posts addressing sales events were protected– Posts addressing Land Rover not protected, because Becker did not work at Land Rover dealership– Termination lawful because was not terminated for posting about sales events 69
  70. 70. Checklist for Discipline for Social Media Do not be rash Perform investigation before disciplining Articulate why a post is objectionable – Does the post violate specific prohibitions in your social media policy? – Does the post constitute discrimination based on race, sex, religion, national origin, gender, sexual identity, etc.? – Is the post harassing? – Is the post threatening or intimidating? – Is the post merely offensive? 70
  71. 71. Checklist for Discipline for Social Media (cont.) Survey Prior Similar Situations – Treat consistently Evaluate the post and surround circumstances under the NLRA – Does the post constitute protected activity? – What preceded the post? • Employee discussion? – Does the post pertain to terms or conditions at work? – Did other employees join in the discussion or comment? 71
  72. 72. Checklist for Discipline for Social Media (cont.) Is the employee a supervisor? – Not protected under the NLRA – Can limit supervisor more Does the post itself complain of unlawful discrimination, harassment or retaliation that your company should investigate and address? 72
  73. 73. Thank You Susan Baird Motschiedler direct: (801) 536.6923 email: Nicholas U. Frandsen direct: (801) 536.6627 email: 73