Where to begin…• Can I search social media content as part of the hiring process?• Can/should I access/monitor employee social media posts?• Can I discipline/terminate employees for what they say/do on social media?
Can I use search social media content aspart of the hiring process?• Yes.• However, there are some legal concerns of which you should be aware. Namely: – Title VII – ADEA – ADA – NLRA – FMLA – GINA – NYHRL
Use of Social Media in Hiring• 56% of employers use social media to screen potential job candidates* – Up from 34% in 2008 – 20% plan to use social media in the future• What is being searched? Facebook – 58% Twitter – 42% LinkedIn – 95% Other –6% MySpace – 3%* 2011 Society for Human Resource Management Survey
What Caused Employers toNOT Hire a CandidateInappropriate photos/information 53%References to drug/alcohol abuse 44%Negative comments about previous employers/clients/ 35%coworkersPoor communication skills 29%Discriminatory comments 26%Misrepresentations about job experience 24%Confidential information concerning previous employer 20%* June 2009 CareerBuilder Survey
Can/should I access/monitoremployee social media posts?• Yes.• However, there are legal concerns that you should be aware of. Namely: – Electronic Communications Privacy Act – New York Wiretapping Law – Stored Communications Act
Electronic CommunicationsPrivacy Laws• Electronic Communications Privacy Act – Prohibits intentional, unauthorized, interception and access of wire, oral or electronic communications (including e-mail)• New York Penal Law Section 250 – Wiretapping Law (Class E felony) – Prohibits monitoring, intercepting or accessing electronic communications without consent of one of the parties
Consent is Key• Consent to – Intercept, monitor, access, disclose – Voice mail, telephone, e-mail, Internet, computer files• May be express and/or implied
Stored Communications Act• Prohibits intentional and unauthorized access of wire or electronic communications while in electronic storage• Does not apply to: – Provider of wire or electronic communications service – User of that service• Employee may have privacy claim where an employer accesses a restricted social network
Case Study• Employee creates and maintains MySpace account to talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in• Access by invitation only and given to select coworkers• Managers hear of MySpace account and ask coworker with access to provide his login information• Managers use coworkers access information to access forum• After viewing the forum and its discussion of sexual and criminal acts and fantasies pertaining to coworkers and customers, employee was fired (cont d)
Legal Concerns• Did the managers have the right to gain access in this manner? – Did the coworker freely share the login information? – Did the coworker have the authority to share his/her access to the managers?
Can I discipline/terminate employees forwhat they say/do on social media?• Yes.• However, there are some legal concerns you should be aware of. Namely, the National Labor Relations Act s protection of protected, concerted activity.
Employee Discipline for SocialMedia Conduct• 24% of employers have disciplined an employee for violating social media policies – Up from 17% in 2009• 11% of employers have dooced an employee – Up from 9% in 2009 *2011 Proofpoint Outbound/DLP Study for E-mail Security
NLRA• Section 7 provides that employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .• Section 8 makes it an unfair labor practice for an employer – to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7] . . . or – to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter . . . .
NLRB Action – To Date• Fielded 129 cases involving social media• Reviewed 117 charges• Issued 4 complaints• In August, Office of the General Counsel issued a 23-page report concerning NLRB social media cases
When is a social media postprotected?• When it is posted by a nonsupervisory employee; and• Constitutes protected, concerted activity.
Concerted Activity• Activity is concerted when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee himself.• Considerations: – Did the employee appeal to co-workers for assistance? – Did employees discuss the issue before or contemporaneous with the online posting? – Did employees raise the concern with management (online or off)? – Was there an online discussion with coworkers?
Protected Activity• Protected activity includes a broad range of conduct that relates to wages, hours, working conditions, and other terms and conditions of employment , or banding together for mutual aid or protection .
Does protected, concertedactivity ever lose its protection?• Yes.• Activity may lose its protection if it is opprobrious or disloyal, reckless, or maliciously untrue .• Considerations: – where the discussion occurred (i.e., in the workplace) – subject matter of the discussion – nature of the outburst – whether the outburst was provoked by a ULP by the employer
Lawful or Unlawful?• Five employees engage in a discussion on Facebook regarding job performance and staffing level issues, after one of the employees requested assistance in preparing for an anticipated meeting with management about these topics.• Employer terminated all five employees.→ NLRB found: → discussion was textbook concerted activity → activity was protected because it related to terms and conditions of employment → swearing in posts was not sufficient to cause the post to lose protected status (cont d)
Lawful or Unlawful?• Employee car salesman posts photographs and sarcastic commentary on Facebook criticizing the less than luxurious food and drink served by his employer, a luxury car dealership, at a kickoff sales event.• Employer terminated the salesman.→ NLRB found: → termination was unlawful. → conduct was protected as it related to impact of cheap car dealer on commissions → conduct was concerted as employee was vocalizing sentiments of co- workers about commissions, that were previously expressed at a meeting regarding planning for the event.
Guiding (Yet Fluid) Principles• Social media posts by nonsupervisory employees concerning a workplace concern that generate comments by other employees will likely be protected.• Even if no other employees respond, the post is likely to be found protected if: – the post is on a site designed to be seen by fellow employees, – there is a clear intent to initiate or further group action, and/or – the issues has been presented to management and/or discussed with fellow employees. (cont d)
Guiding (Yet Fluid) Principles• Purely personal gripes or posts directed at nonemployee relatives/friends, even about work- related issues, may not be protected.• Disparaging comments and profane, rude or vulgar language may be protected.
What do you need to do toaddress these concerns?• Exercise extreme caution when disciplining/ terminating an employee for social media conduct.• Consult with counsel to insure compliance with applicable law.
Supervisory Personnel Friending Subordinates• Benefits – – Builds stronger connections – Stronger team results• Drawbacks – – May learn information you never wanted to know
What do you need to do toaddress these concerns?• Educate supervisory personnel• Recommend personal/professional dichotomy – Personal – Facebook – Professional - LinkedIn
Other Sources of PotentialLiability• Whistleblowing• Defamation• FTC Rule• FLSA/Wage & Hour• EEO Laws• Distracted Driving
FTC Rules(Effective December 1, 2009)• If an employee posts a blog about an employer s products or services, the employee must disclose his or her relationship to the manufacturer as it will likely effect the weight or credibility of the endorsement. – In 2009, NY Attorney General received $300,000 from a cosmetic surgery operation where employees pretended to be satisfied customers who experienced great results.• Take Aways – – if employees permitted to blog about employer s product or service, require clear and conspicuous disclosure of relationship to employer. – Employees should be required to disclose that they are not authorized to make statements on behalf of the employer, unless they have been designated. – No astroturfing, i.e., encouraging employees to make artificial claims of falsely positive information.
FLSA/Wage & Hour Concerns• Accessing employer s network from home or through mobile device may be working time• Take Aways: – Exercise caution granting such access to nonexempt employees – Establish policy to address nonexempt employees performing work outside scheduled hours
EEO Laws• Anti-discrimination laws implicated where: – adverse employment decision is based on protected status • access to this information could taint otherwise defensible decision – social networking used to harass employees• Anti-retaliation laws implicated where employee utilizes social media to informally protest or oppose discriminatory practices
OSHA s Distracted DrivingCampaign• OSHA has announced it will issue a citation to any employer that requires texting while driving or who organizes work so that texting is a practical necessity.• Fines could be as high as $7,000 for a serious citation, or $70,000 for a willful citation. ü Take Away - Inform employees through your handbook or a separate written policy that texting while driving – either company vehicles or personal vehicles using company-issued phones – is strictly prohibited.
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