Risks Social Media Compliance Report Final[1]


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Rising Above the
Risks of Social Media:
Responsibilities and Policies in the Workplace

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Risks Social Media Compliance Report Final[1]

  1. 1. Rising Above theRisks of Social Media:Responsibilities and Policies in the WorkplaceMay 16, 2012HR. Payroll. Benefits.
  2. 2. ContentsAbout This Guide 1The Numbers Are Staggering 2The Rising Tide: Federal and State Legislative Developments 3The Rising Tide: Federal Regulatory and Enforcement Activity 6Employees’ Misuse of Social Media 12Disciplining Employees Who Misuse Social Media 14Monitoring and Regulating Employees’ Use of Social Media 17Strategies for Regulating Electronic Communications 19Basing Hiring Decisions on Information Obtained from Social Media 20Question of Social Media Account OwnershipNeed Not Be a Problem for Employers 21Conclusion 22About ADP TotalSource® 23About Jackson Lewis 23
  3. 3. About This GuideFacebook, Twitter, and email may be moreaddictive than alcohol or smokingThat is what a recent study says about socialmedia, a form of online communication thatis certainly no longer considered a fad. Withmore than 1 billion users on Facebook andTwitter alone, social media may be the biggestcultural and economic shift since the industrialrevolution. Simply put, social media is thedominant form of communication today.Chances are that some of These changes have not gone unnoticed by theyour employees are on social federal government, state governments, and the court systems. They have become increasinglymedia right now. active in this constantly evolving area of the law. They have been busy proposing and creatingNot surprisingly then, millions of employees new laws and rules, as well as reinterpretingcommunicate daily via social media. In fact, old ones, all in an effort to catch up with socialchances are that some of your employees are on media’s impact on the workplace.social media right now. And employers are just These rapid changes have caught someas likely to be using social media —investigating employers off guard. Are you prepared? Thejob applicants’ Facebook, LinkedIn, and Twitter purpose of this special report is to provideprofiles during the recruitment and hiring stages. employers with timely information to prepareEmployers are also increasingly turning to social for, and plan for, the substantial impact thatmedia for information about the conduct of social media is having in the workplace.current employees.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 1
  4. 4. The Numbers Are StaggeringFacebook dominates social media traffic. It has himself/herself professionally (65 percent); to see ifmore than 900 million monthly active users, and it the candidate is a good fit for the company cultureis estimated to reach one billion users by August (51 percent); to learn more about the candidate’s2012. That is an amazing number — approximately qualifications (45 percent); to see if the candidate is14 percent of the world’s population. Twitter, which well-rounded (35 percent); and to look for reasonsis also prevalent, has nearly 500 million registered not to hire the candidate (12 percent).users and is still growing at an astounding rate. A third of hiring managers who currently research candidates via social media said they have foundHiring managers are using social information that has caused them not to hiremedia to evaluate candidates’ a candidate. The reasons range from evidence of inappropriate behavior to information thatcharacter and personality outside contradicted their listed qualifications: candidatethe confines of the traditional posted provocative/inappropriate photos/ information (49 percent); there was informationinterview process. about candidate drinking or using drugs (45 percent); candidate had poor communicationEmployees’ private and workplace lives easily skills (35 percent); candidate bad-mouthedintersect on social media, where boundaries previous employer (33 percent); candidate madebecome blurred. Of the millions of employees discriminatory comments related to race, gender,who use social media sites, one recent survey religion, etc. (28 percent); and candidate lied aboutrevealed that 39% have befriended a colleague or qualifications (22 percent).business contact on Facebook or LinkedIn; 14%have posted a status update or tweeted about their Lastly, according to the survey, employers arework; 22% have posted a status update or tweeted also looking for information that could potentiallyabout a work colleague; and 28% have posted give a job seeker an advantage. A third of hiringphotos of colleagues or business activities. Yet, a managers said they have found something thatrecent survey by the Society for Human Resources has caused them to hire a candidate, includingManagement shows that 69% of employers the following: good feel for candidate’s personalitysurveyed do not track employee use of social (58 percent); conveyed a professional image (55media on company-owned computers or devices. percent); background information supported professional qualifications (54 percent); well-Employers are also actively using social media. rounded, showed a wide range of interestsFor example, nearly 40 percent of employers (51 percent); great communication skills (49use social networking sites to research job percent); candidate was creative (44 percent); andcandidates, according to a recent survey from other people posted great references about theCareerBuilder. The survey reveals that hiring candidate (34 percent).managers are using social media to evaluatecandidates’ character and personality outside the Point being, the use of social media in theconfines of the traditional interview process. When workplace is here to stay. While employers cannotasked why they use social networks to conduct prevent all of the legal risks associated with socialbackground research, hiring managers listed the media, they can manage them.following reasons: to see if the candidate presentsRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 2
  5. 5. The Rising Tide: Federal and StateLegislative DevelopmentsFor years, there really was no law that privacy of your friends. We have workedspecifically addressed an employer’s right really hard at Facebook to give you theto use social media to collect information tools to control who sees your information.about applicants or current employees.That is quickly changing. As a user, you shouldn’t be forced to share your private information andFederal legislative developments communications just to get a job. And asOn March 22, 2012, U.S. Senators Charles the friend of a user, you shouldn’t haveSchumer and Richard Blumenthal called on the to worry that your private informationU.S. Equal Employment Opportunity Commission or communications will be revealed toand the U.S. Department of Justice to investigate someone you don’t know and didn’t intendwhether employers violate any privacy, fraud, or to share with just because that user isanti-discrimination laws by demanding access to looking for a job. That’s why we’ve madejob applicants’ Facebook accounts before making it a violation of Facebook’s Statement ofa hiring decision. Rights and Responsibilities to share or solicit a Facebook password.The next day, March 23, 2012, Facebook publiclyjoined the discussion. The Company’s Chief We don’t think employers should be askingPrivacy Office posted the following blog entry on prospective employees to provide theirthe Company’s website: passwords because we don’t think it’s the right thing to do. But it also may cause In recent months, we’ve seen a distressing problems for the employers that they increase in reports of employers or others are not anticipating. For example, if an seeking to gain inappropriate access to employer sees on Facebook that someone people’s Facebook profiles or private is a member of a protected group (e.g., over information. This practice undermines the a certain age, etc.) that employer may open privacy expectations and the security of themselves up to claims of discrimination if both the user and the user’s friends. It also they don’t hire that person. potentially exposes the employer who seeks this access to unanticipated legal liability. The Social Networking Online The most alarming of these practices is the reported incidents of employers asking Protection Act would prohibit prospective or actual employees to reveal employers from requiring such their passwords. If you are a Facebook user, you should never have to share your information or to deny employment password, let anyone access your account, or penalize candidates or or do anything that might jeopardize the security of your account or violate the employeess for refusing to provide such information.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 3
  6. 6. One month later, on April 27, 2012, federal discharge, discipline, or otherwise penalizelegislators introduced proposed legislation to bar employees or applicants who refuse to complycurrent and prospective employers from requiring with requests for such information. In addition,job candidates and employees to submit their employers may not fail or refuse to hire applicantsuser names and passwords for social networking who object to similar requests.sites. The Social Networking Online ProtectionAct, introduced by U.S. Representative Eliot Other states are likely to follow suit. CaliforniaEngel, would prohibit employers, schools, and is considering legislation that would make ituniversities from requiring such information illegal for companies to request or requireor to deny employment or penalize candidates, employees and job candidates to disclose theiremployees, or students for refusing to provide social media user names and passwords. Thesuch information. proposed legislation would also prohibit colleges and universities from requiring the information“The American people deserve the right to from students. If a company refused to hire a jobkeep their personal accounts private,” said U.S. applicant because of information obtained on aRepresentative Jan Schakowsky, a co-sponsor social networking website, the applicant couldof the bill. “No one should have to worry that bring a lawsuit.their personal account information, includingpasswords, can be required by an employer oreducational institution, and if this legislation is Maryland became the first statesigned into law, no one will face that possibility.” to make it illegal for employers to“Social media sites have become a widespread demand user names, passwordscommunications tool — both personally andprofessionally — all across the world,” Engel or other means to access anysaid in a statement. “However, a person’s so- personal account.called ‘digital footprint’ is largely unprotected.Passwords are the gateway to many avenuescontaining personal and sensitive content — Illinois is considering legislation that would makeincluding email accounts, bank accounts, and it illegal for an employer to request a passwordother information.” The legislation is still pending. or related account information from an employee or prospective employee in order to access thatState legislative developments person’s social networking site. The proposedStates are also active in this area. On May 2, 2012, legislation specifies that it does not limit anMaryland became the first state to make it illegal employer’s right to maintain lawful workplacefor employers to demand user names, passwords, policies governing the use of its electronicor other means to access any personal account equipment or monitor that use without requiringor service through an electronic communication an employee to provide any social networkingdevice (computer, phone, PDA, etc.), such passwords. The proposed legislation also wouldas social media sites Facebook or LinkedIn, not bar an employer from getting informationbelonging to employees or job applicants. The about a prospective employee or current employeenew law becomes effective October 1, 2012. The that is in the public domain.law applies to any employer engaged in businessin Maryland, as well as any unit of state or localgovernment. It is also illegal for employers toRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 4
  7. 7. New York is considering legislation that wouldmake it illegal for an employer or employer’sagent, representative, or designee to requireany employee or applicant to disclose any log-inname, password, or other means for accessing apersonal account or service through an electroniccommunications device. Moreover, an employeror its representative may not fire, discipline,or otherwise penalize a worker for refusing tocough up passwords or other information used toaccess personal social networking sites. Refusalto provide a password or access to a social mediasite cannot be used as a reason to refuse to hire acandidate for a job. Violators are subject to a$300 fine the first time around and a $500 finefor each subsequent violation, according to theproposed legislation.Michigan and Minnesota are also consideringlegislation that would make it illegal foremployers to require applicants to disclose theirpasswords to social networking sites.So far, none of these proposed laws would restrictan employer’s ability to find and use informationthat is publicly available on social media.Nonetheless, employers need to closely monitorthese developments and ensure compliance withthe laws that are passed in the upcoming months.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 5
  8. 8. The Rising Tide: Federal Regulatoryand Enforcement ActivityIn addition to legislative activity at the federal employee’s conduct that is protected by Sectionand state levels, there has been regulatory 7 of the Act. Section 7 protects employees whoand enforcement activity by various agencies engage in “concerted activities for the purposeof the federal government, including the Equal of collective bargaining or other mutual aid orEmployment Opportunity Commission and the protection.” Importantly, the Act does not justNational Labor Relations Board. protect employees who engage in union activities or work in a unionized environment. It also protectsEmployee complaints are nothing new, but social other forms of employee conduct undertakenmedia sites like Facebook have given workers a for their “mutual aid or protection” including,new avenue for their gripes. While online venting for example, a group of nonunion employeesmay not sit well with employers, as discussed complaining to management about their wages orbelow, employers should be cautious about taking working conditions, participating in a strike or workdisciplinary action over arguably insulting posts stoppage, or attempting to enlist public support toand tweets. improve their terms or conditions of employment.National Labor Relations Board The Board’s Acting General Counsel, LafeIf you plan to skip this section because you do not Solomon, spoke at a legal conference onhave any unionized employees, you are making November 3, 2011. He said the appearance gavea mistake. Employers who ignore the National him “a chance to explain to the 93 percent [ofLabor Relations Act (Act) do so at their own peril. private-sector workers] who are not representedWhen it comes to social media in the workplace, by unions the National Labor Relations Act” andthe National Labor Relations Board (Board) is a principles of protected concerted activity underpowerful enforcer of rights for unionized and non- the Act. Mr. Solomon said the Board is receivingunionized employees alike. The Board has been hundreds of unfair labor practice charges frommore active — and successful — in this area than individuals asserting that employers violated theirany other federal agency. NLRA rights by punishing them due to their use of social media . Like other charges filed with the Board’s regional offices, he said, some will not toWhile online venting may not sit have merit. Nonetheless, he said it is a positivewell with employers, employers development that more workers are “waking up” to rights that are guaranteed by the Act, but haveshould be cautious about taking been unfamiliar to the general public.disciplinary action over arguably August 2011 Board Reportinsulting posts and tweets. On August 18, 2011, Mr. Solomon released a report summarizing 14 recent cases the Board consideredBy way of background, the Board enforces the involving employees’ use of social media, including,Act. When the Board says that an employee has Facebook, Twitter, YouTube, text messages,engaged in “protected concerted activity” on social video, images, podcasts, and other multimediamedia or otherwise, the Board is referring to an communications. Without providing expressRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 6
  9. 9. guidelines in the August 18 report on how an her coworkers. The coworkers also wrote negativeemployer, whether unionized or not, can establish remarks about the supervisor, some of whichand enforce a lawful social media policy, the report included profane language. After the employerdiscusses recent cases from the Board to shed found out about the post, the employee waslight on activities the Board likely will or will not terminated for violating the employer’s Internetconsider protected under the Act. policies. The Board found that the employee had engaged in a protected activity by exercising herOut of the 14 cases discussed, the Board found right to discuss supervisory actions with coworkers.in four that an employee’s posts on Facebook orTwitter constituted “protected concerted activity;” infive cases, that an employee’s posts on Facebook orTwitter did not warrant protection under the Act; in It is important for employers tofour cases, that some provisions of the employers’ understand that an employee’ssocial media policies were overly broad and social media use likely may beunlawful; and in one case, that the employer’s mediaand press interview policy was lawful and valid. considered protected concertedProtected concerted activity activity when the comments orMany conversations that start in the workplace posts involve shared concernscontinue in social media. It is important for over terms and conditions ofemployers to understand that an employee’s socialmedia use likely may be considered protected employment.concerted activity when the comments or postsinvolve shared concerns over terms and conditionsof employment. Posts can be considered protected Activities not protected by the Actwhen they derive from or are a direct “outgrowth” Social media posts that do not involve a discussionof an earlier discussion among coworkers about with other employees and are not directed to othertheir terms and conditions of work. Facebook employees, that do not discuss the terms andor Twitter posts directed to coworkers to invite conditions of employment, or that include offensiveor induce further action also are likely to be or inappropriate comments directed toward anconsidered protected concerted activity. Further, employer’s clients are not likely protected undera post that is offensive or laced with profanity or the Act. In one case, a bartender was terminatedsarcasm still may warrant protection under the for posting a message on Facebook regarding hisAct if the content is derived from shared concerns employer’s tipping policy. Pursuant to the policy,about the terms and conditions of employment. waitresses were not allowed to share tips with bartenders. The employee had a conversation onIn one case, the employer, an ambulance service, Facebook with a non-coworker family member,terminated an employee for posting negative complaining about the lack of raises and tips. Theremarks about her supervisor on Facebook. The employee described the employer’s customers asemployer’s Internet and blogging policy prohibited “rednecks” and stated that he hoped they wouldemployees from making disparaging remarks when choke on glass as they drove home from the bar.discussing the company or supervisors and from The Board found the employee’s posts were notdepicting the company in any media without its made in concert with other employees, but solelypermission. From her personal computer outside on his own behalf, even though they concernedof working hours, the employee posted a criticism the terms and conditions of his employment.about her supervisor which drew responses fromRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 7
  10. 10. Additionally, the Facebook conversation did not grow Another provision the Board found overly broadout of another conversation with a coworker, nor did included restrictions on revealing (includingany of his coworkers respond to his postings. through photographs) personal information regarding coworkers, company clients, partners,In a separate case, the Board found a journalist’s or customers without their consent, without anytermination was lawful. He was fired for tweeting limitation or examples of what is covered. Theunprofessional comments about his employer, local Board also found this provision could reasonably behomicides, and criticisms about a local television construed as a restraint on protected activity.station. The Board found that the posts wereinappropriate and offensive and did not relate to Additionally, the Board found that forbiddingthe conditions of his employment or seek to involve employees from discussing the terms andother employees in issues related to employment. conditions of employment or sharing informationTherefore, they did not involve a protected activity. about themselves or fellow employees with each other or nonemployees violates the Act. ItOverly broad social media policies also concluded that prohibiting employees fromIn several cases, the Board found the employer’s using the employer’s logos and photographs ofsocial media policy overly broad. These cases have the employer’s store, brand or product, withoutprovided employers with guidance on drafting a written authorization, was unlawful. It found thislawful policy. In one case, the employer’s social ban was overly broad in that it could prevent anmedia policy prohibited employees from using any employee from posting pictures of employeessocial media that may violate, compromise, or carrying a picket sign depicting the employer’sdisregard the rights and reasonable expectations name, peacefully handbilling in front of a store, oras to privacy or confidentiality of any person or wearing a t-shirt displaying the employer’s logo inentity. It also prohibited any communication or post connection with a protest over terms and conditionsthat constitutes embarrassment, harassment, or of employment, all which are protected activities.defamation of the employer, any other employee,officer, board member, and representative or staff January 2012 Board Reportmember. The Board found these provisions overly On January 24, 2012, Mr. Solomon issued a secondbroad, concluding that employees could reasonably report on more recent social media cases thatconstrue the policy to prohibit protected conduct. have been decided by the Board. The January 24,The Board highlighted that the policy also provided 2012 report discusses social media policies andno guidance as to what the employer considered chronicles additional actions taken by the Board onto be private or confidential. Further, the policy unfair labor practice charges involving the use ofincluded several broad terms, but no definitions or social media by employees.limits that would exclude protected activity fromtheir reach. The January 2012 report reviews 14 charges, several of which allege that the language of theThe Board found several other social media employer’s social media policy violated the Act.policies overly broad, with terms and prohibitions For example, in one case the social media policythat reasonably would be construed as prohibiting required employees who had identified themselvesprotected activity. In these policies, the employers as employees of the employer on social media sitesprohibited employees, on their own time, from to state, each time they posted, that their commentsblogging about company business, posting contained only their personal opinions and did notanything that they would not want their manager necessarily reflect the employer’s opinions. Theor supervisor to see, and posting pictures or Board found that provision unlawful because:comments involving the company or its employeesthat could be construed as inappropriate.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 8
  11. 11. . . . requiring employees to expressly state use the employer’s name and logo while that their comments are their personal engaging in protected concerted activity… opinions and not those of the employer every time that they post on social media Employers should use great caution when writing would significantly burden the exercise social media policies. These policies are receiving of employees’ Section 7 rights to discuss great scrutiny by the Board, and provisions that working conditions and criticize the may appear harmless on their face, such as those employer’s labor policies, in violation of noted above, may not be. Section 8(a)(1). Recent Board Comments On March 1, 2012, the Board’s regional directorEmployers should use great in Fort Worth, Texas reminded attendees at a legal conference that it would be a violation if thecaution when writing social employer takes action, in response to a Facebookmedia policies. or other social media communication, that would “reasonably chill” employees in the exercise of their Section 7 rights under the Act.The same policy also required employees to obtainapproval to identify themselves as the employer’s The regional director said that social media isemployees on social media sites. The Board also a “hot, hot subject,” with more than 100 casesfound this provision unlawful because: involving Facebook postings filed with the Board between 2009 and 2011. The standard that the personal profile pages serve an important Board applies in Facebook and other social media function in enabling employees to cases are rules that have evolved over 70 years of use online social networks to find and case law. “We are not saying that an employee can communicate with their fellow employees say or do anything; it has to be in concert with other at their own or other locations …. [T]his employees and it must be protected. It can’t be so policy, therefore, [is] particularly harmful to egregious or it will lose protection under the NLRA,” the Section 7 right to engage in concerted the regional director said. action for mutual aid or protection and [is] unlawfully overbroad. In social media cases, the regional director reminded attendees that the Board will apply its standardAnother provision of that policy prohibited use of analysis for protected concerted activity. Shethe company’s name or service marks outside the explained that the Board generally looks at fourcourse of business without prior approval of the factors when deciding whether employee speechemployer’s law department. The Board found this amounts to protected concerted activity—the placeprovision unlawful, stating: of the discussion, the subject matter, the nature of the employee’s outburst, and whether the outburst Employees have a Section 7 right to was provoked by the employer’s unfriendly practice. use their employer’s name or logo in conjunction with protected concerted Equal Employment Opportunity Commission activity, such as to communicate with fellow Employers that use social media to make employees or the public about a labor employment decisions “need to be consistent” in dispute. We concluded that this provision order to avoid claims of disparate treatment or of the policy could reasonably be construed disparate impact under Title VII of the 1964 Civil to restrict employees’ Section 7 rights toRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 9
  12. 12. Rights Act, according to a trial attorney with the water cooler — with management overhearingEEOC who spoke at an August 26, 2011 workshop. it. Such a scenario falls within the “inadvertent acquisition” exception to GINA’s prohibition onThe EEOC attorney advised employers to set clear the employer’s acquisition and possession ofguidelines on using social media to research employees’ genetic information.potential job candidates. He said this is necessarybecause employers are privy to a great deal of Securities and Exchange Commissioninformation “in cyberspace” about applicants Financial advisors may not advertise using clientto which they previously did not have access. By endorsements or testimonials. The increase in theway of example, the trial attorney mentioned use of social media connections, such as “like”that a job candidate could have posted details buttons, increases the potential to cross regulatoryon a social networking site about being a breast lines, because such connections can be viewed ascancer survivor or a paraplegic. “How do we an endorsement. In addition, given the particularcontrol employers’ legitimately trying to find out facts and circumstances, such connections couldinformation about prospective employees while also be viewed as testimonials.not violating the law?” he queried. He said, “If youwouldn’t ask for it during an interview, don’t search On January 4, 2012, the Securities and Exchangefor it online.” “It could possibly get you in trouble.” Commission (SEC) issued guidelines for financial advisors. The SEC found that firms tend to have overlapping policies and procedures that apply“If you wouldn’t ask for it during to advertisements, client communications, and electronic communications, which were confusingan interview, don’t search for because they often do not specifically identifyit online.” social media. The SEC suggested reviewing internal compliance programs to determine if social media use isThe EEOC has also addressed the intersection addressed and ensure that the rules are currentlybetween social media and genetic information. being followed. The factors they focus on include:Congress enacted the Genetic Information • Usage guidelines: Base restrictions upon theNondiscrimination Act of 2008 (GINA) to prohibit risk to the firm, which sites are approved, anddiscrimination based on genetic information and which functionalities are approved.restrict the requesting and disclosure of such • Content standards: Suggest clear guidelines forinformation. GINA not only prohibits employers content or use of preapproved content.from discriminating against employees and job • Monitoring: Determine how to appropriatelyapplicants but also prohibits employers from monitor use and the frequency of monitoring.acquiring employees’ genetic information. Inearly 2011, the EEOC released regulations that • Firm resources: Determine if there are availablemake it illegal to conduct “an Internet search resources for compliance and monitoring.on an individual in a way that is likely to result in • Participation: Determine the appropriatenessa covered entity obtaining genetic information.” of a site.Fortunately, in the regulations, the EEOC concluded • Training: Get training on how to appropriatelythat the sharing of information over Facebook, use social media, consider requirement ofTwitter, and other social networking sites is certification.analogous to discussing such matters around theRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 10
  13. 13. • Personal/professional sites: Determine if the use is through a firm-sponsored profile or through an individually created profile. Review the potential risks for profiles that are part of a corporate enterprise.• Information security: Review and address potential information security risks with social media use.• Recordkeeping and document retention: Determine whether or not recordkeeping is being adhered to based on the Advisers Act if it applies to the content and that documentation is accessible as determined by federal securities laws.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 11
  14. 14. Employees’ Misuse of Social MediaEmployees may intentionally or inadvertently use Hostile work environment and discriminationsocial media—whether on-the-job or at home—in claims. Social networking sites and blogsa way that poses risks for their employers. While provide employees with additional avenues forat work, employers may suffer because employees engaging in inappropriate conduct. Employeesspend too much time on social networking sites, may vent workplace frustrations by postinginstant messaging with friends, or just surfing the discriminatory statements, racial slurs, orInternet. Though these activities may decrease sexual innuendos directed at coworkers,productivity, they may not necessarily result in management, customers, or vendors. If aany additional harm. When employees use social supervisor has posted discriminatory statementsmedia, however, to harass coworkers, criticize regarding an employee’s protected status onthe company or its clients, reveal confidential his or her Facebook page, for example, and theinformation, endorse products or services without employee is later terminated or subjected to anproper disclosure, or engage in criminal conduct, adverse employment action, the supervisor’semployers face far greater risks. It is important to discriminatory statements could be used askeep in mind that employees often create these evidence that the employment action wastypes of problems not because they are acting motivated by discriminatory animus in amaliciously, but instead because they are acting— subsequent lawsuit or administrative claim.or posting—without thinking. Defamation claims. Employers may face liability for defamation based on electronic communications disseminated by employees.When employees use social Employee bloggers, for example, can createmedia, however, to harass unrest in the workplace by posting rumors, gossip, and offensive false statements about coworkerscoworkers, criticize the company and supervisors. Negative comments madeor its clients, reveal confidential by management about a departing employeeinformation, endorse products may also create liability. Consider the following example: An employee leaves Company A to takeor services without proper advantage of more promising opportunities withdisclosure, or engage in criminal Company B. Prior to starting with Company B, her supervisor at Company A posts false andconduct, employers face far damaging comments regarding her abilities andgreater risks. work habits on a blog. An employee at Company B stumbles upon these comments, and Company B withdraws its employment offer based on the falsePotential theories of employer liability for information. As a result of the comments postedemployees’ misuse of social media in the blog, the former employee may have a legalSome of the legal risks employers face when claim against Company A and the supervisoremployees misuse social media include: for defamation or interference with prospective economic relations.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 12
  15. 15. Improper disclosure of confidential or other Federal Trade Commission (FTC) Guidelines.protected information. Employees may According to FTC Guidelines addressing the use ofinadvertently reveal—or enable others to piece “endorsements and testimonials in advertising,”together—proprietary or confidential information employers may face liability when employeeson a blog or social networking site, instantly comment on their employer’s services ordisseminating extremely sensitive company—or products on social media without disclosing theclient—information with the simple click of a employment relationship. Potential liability maybutton. Employees may also act more deliberately, exist even if the comments were not sponsored orsuch as a disgruntled employee revealing a authorized by the employer.company’s trade secrets and other proprietaryinformation on a blog. In addition to these legal risks, employees may purposely or inadvertently harm an employer’s reputation using social media. Employees can harm their employer’s reputation by postingAccording to FTC Guidelines controversial or inappropriate comments oraddressing the use of pictures on their own blogs or websites, which in“endorsements and testimonials some way make reference to their employer or can be connected to the employer based on thein advertising,” employers may individual’s status as an employee. For example, inface liability when employees some instances employees may post statements or videos revealing unlawful conduct outside ofcomment on their employer’s work. If individuals viewing the posts or videosservices or products on social have knowledge of the individual’s employer, or the employer is somehow referenced, themedia without disclosing the conduct may be imputed to the employer. In someemployment relationship. instances, employees may be liable for this type of conduct, under theories of interference with prospective economic relations, interferenceReporting requirements for child pornography. with contract, intentional infliction of emotionalSeveral states, including Arkansas, Illinois, distress, publication of private facts, and otherMichigan, Missouri, North Carolina, Oklahoma, speech-based torts.South Carolina, and South Dakota, havemandatory reporting statutes that requireinformation technology workers to report childpornography found on computers they areservicing. In cases of child pornography or otherillegal electronic conduct, employers must takeparticular care to preserve the evidence for legalauthorities and to not destroy any equipment,emails, or files that make contain such evidence.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 13
  16. 16. Disciplining Employees WhoMisuse Social MediaThere are a myriad of scenarios that may prompt an employee who, for example, posts picturesan employer to discipline an employee for his or of himself intoxicated at a party on social mediaher social media use. The most obvious situation (assuming the employee is over 21 years old). Inis an employee who engages in illegal Web-based contrast, the employer may have more leewayactivity while at work. Another common scenario where the conduct is illegal. The following statesis an employee who spends the majority of his or have lawful conduct laws:her on-duty time using Facebook or surfing theInternet. Other situations may include employeeswho criticize a supervisor or client, post distasteful Some states have “lawfulphotos or videos, or call in sick and then post conduct” laws that may protectcontrary information. an employee or applicant’sBefore deciding to take an adverse employment legal off-duty activities.action against an employee, based on his or hersocial media use, employers should considerwhether there are legal constraints preventing or California: Provides that no employee shalllimiting such action. Some of the legal constraints be discharged or otherwise discriminatedemployers must consider include: against for lawful off-duty conduct. The law entitles any employee who is discharged,The National Labor Relations Act. As discussed threatened with discharge, demoted,above, the Act affords employees (even those suspended, or discriminated against in anywho are not unionized) the right to engage in manner in the terms and conditions of his“concerted activity,” including the right to discuss or her employment to reinstatement andthe terms and conditions of their employment— reimbursement for lost wages and workand even to criticize their employers—with co- benefits.workers and outsiders. Not all concerted activitiesare protected by the Act; only those activities Colorado: Makes it illegal for an employerthat are engaged in for the purpose of collective to terminate an employee because thatbargaining or other mutual aid or protection are employee engaged in any lawful activitycovered. Thus, before disciplining an employee off the employer’s premises duringwho, for example, has complained about the nonworking hours unless the restrictionemployer on his or her blog or Facebook page, 1) relates to a bona fide occupationalan employer must determine if the employee has requirement or is reasonably and rationallyengaged in protected concerted activity. related to the employment activities and responsibilities of a particular employeeLegal off-duty activities. Watch out for unique or a particular group of employees; or 2) isstate laws. Some states have “lawful conduct” necessary to avoid, or avoid the appearancelaws that may protect an employee or applicant’s of, a conflict of interest with any of thelegal off-duty activities. Thus, in some states, an employee’s responsibilities to the employer.employer may be prohibited from terminatingRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 14
  17. 17. Illinois: Prohibits workplace discrimination Nevada: Makes it unlawful for an employer on the basis of the use of lawful products to fail or refuse to hire a prospective except where the employer is a nonprofit employee or to discharge or otherwise organization that, as one of its primary discriminate against an employee purposes or objectives, discourages the concerning his compensation, terms, use of one or more lawful products by the conditions or privileges of employment, general public. because he engages in the lawful use of any product outside working hours and off Minnesota: Prohibits an employer the employer’s premises if that use does from refusing to hire a job applicant not adversely affect his ability to perform or disciplining an employee for using his job or the safety of other employees. lawful consumable products, if the products are used off the employer’s New York: Makes it unlawful for an premises outside of working hours. employer to make hiring or firing decisions, Provides for an exception related to a or otherwise discriminate against an bona fide occupational requirement that employee or prospective employee because is reasonably related to the employment of that individual’s legal use of consumable activities or responsibilities of a particular products or legal recreational activities employee or group of employees or where outside of work hours, off of the employer’s it is necessary to avoid a conflict of interest premises, and without use of the or the appearance of a conflict of interest. employer’s equipment or other property. There is an exception for protected activity Montana: Provides that an employer that creates a material conflict of interest may not refuse to employ, license, or related to the employer’s trade secrets, discriminate against an individual with proprietary information or other proprietary respect to compensation, promotion, or or business interest. the terms, conditions, or privileges of employment because the individual uses a North Carolina: Prohibits an employer lawful product off the employer’s premises from refusing to hire a prospective during nonworking hours, unless such use employee, or discharging or otherwise 1) affects an individual’s ability to perform discriminating against any employee job-related employment responsibilities with respect to compensation, terms, or the safety of other employees; 2) conditions, or privileges of employment conflicts with a bona fide occupational because the employee or prospective qualification that is reasonably related to employee lawfully uses lawful products the individual’s employment; 3) conflicts off the employer’s premises during with a professional service contract where nonworking hours and such use does the unique nature of the services provided not adversely affect the employee’s job authorizes the employer to limit the use performance or the person’s ability to of certain products; or 4) is prohibited by properly fulfill the responsibilities of his a nonprofit organization employer that, as position or the safety of other employees. one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 15
  18. 18. Wisconsin: Prohibits any employer, labor public health and safety, as well as employees organization, employment agency, licensing who report potential securities fraud violations. agency, or any other person from engaging For example, the Sarbanes-Oxley Act of 2002 in any act of employment discrimination (SOX) prohibits employers from terminating on the basis of the use or nonuse of lawful employees for “providing information, causing products off the employer’s premises information to be provided, or otherwise assist[ing] during nonworking hours. in an investigation regarding any conduct which the employee reasonably believes constitutesLaws related to political activities and affiliations. a violation of … any rule or regulation of theMany states, including California, prohibit Securities and Exchange Commission, or anyemployers from regulating employee political provision of Federal law relating to fraud againstactivities and affiliations or influencing employees’ shareholders.” The investigation, however, mustpolitical activities. Taking action against an be conducted by, among others, a person withemployee for objectionable political speech could supervisory authority over the employee. Anviolate these restrictions. employee who reports alleged securities fraud on a company blog monitored by management to detectDiscrimination claims. Employers are prohibited improper activities within the workplace could befrom unlawfully discriminating against employees protected, for example, under SOX.on account of protected characteristics, includingrace, age, sexual orientation, marital status, Ultimately, hiring, disciplining, and firing are alldisability, and even genetic information. If an critical parts of the employment relationship,employer learns from an employee’s Facebook and what is appropriate social media use in onestatus, for example, that the employee is pregnant, workplace may not be in another. An employerthe employer cannot fire the employee on relying on Web-based information to makeaccount of the pregnancy. Employers should also these decisions should be aware of potentialkeep in mind that an employee terminated for legal repercussions and consult with a humaninappropriate social media use may later assert resources professional knowledgeable in thisthat the employer’s actions were discriminatory. area to manage the risks inherent in any adverse employment decision.Whistleblower statutes. Federal and statewhistleblower laws may protect employees whocomplain about company conditions affectingRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 16
  19. 19. Monitoring and RegulatingEmployees’ Use of Social MediaSupreme Court finds government employer’s conducted for a “noninvestigatory, work-relatedsearch reasonable purpose” or for the “investigation of work-relatedIn a unanimous decision, the U.S. Supreme Court misconduct.” A search is reasonable in scopeheld that the City of Ontario’s review of transcripts where the measures used are reasonably relatedof an employee’s text messages sent and received to the objectives of the search and not excessivelyon a City-issued pager was a reasonable search intrusive under the circumstances.under the Fourth Amendment. City of Ontario, Calif.v. Jeff Quon, et al., No. 08-1332 (June 17, 2010).The Court avoided deciding whether public All employers, public andemployees have a reasonable expectation of private, must be prepared withprivacy in text messages sent on employer-owned comprehensive computer andequipment under the Fourth Amendment andwhat particular standard ought to apply in making electronic equipment usage policies.that determination. It acknowledged that rapidchanges in communications and the means by Applying these standards, the Court held that thewhich information is transmitted, as illustrated City’s review of Quon’s text message transcriptsby advancements in technology and what society was reasonable. According to the Court, the searchviews as proper behavior, created significant had a clear noninvestigatory, work-related purposechallenges to setting legal standards for the at its inception—to evaluate whether the monthlyworkplace that would survive the test of time. The character limit was sufficient for the City’s needsCourt noted, “Prudence counsels caution before and to ensure that employees were not paying out-the facts of the instant case are used to establish of-pocket for work-related expenses.far-reaching premises that define the existence,and extent, of privacy expectations enjoyed The extent of an expectation of privacy, the Courtby employees when using employer-provided reasoned, is relevant to assessing whethercommunications devices.” the scope of a search is reasonable. Moreover, “employer policies concerning communicationsSo, the Court assumed, without deciding, that will of course shape the reasonable expectationsthe employee had a reasonable expectation of of their employees, especially to the extent thatprivacy in his text messages and the case could such policies are clearly communicated,” thebe decided on narrower grounds, i.e., whether the Court said.search was reasonable under well-defined FourthAmendment standards. All employers, public and private, must be prepared with comprehensive computer and electronicUnder the Fourth Amendment, a government equipment usage policies. The Court noted thatemployer is permitted to conduct a workplace these policies will help shape an employee’ssearch without a warrant where it is (i) “justified expectation of privacy. Further, it is critical thatat its inception” and (ii) reasonable in scope. A practices and policies be consistent, reflect currentsearch is “justified at its inception” where it is technologies, and be clearly communicated.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 17
  20. 20. Employers also should consider requiring seclusion or private affairs or concerns, (3) whichemployees to acknowledge in writing that would be highly offensive to a reasonable person.they received and reviewed these and similar An employer may successfully defend against suchpolicies and procedures, particularly as new claims by establishing that the employee did nottechnologies are introduced. Because this area of have a reasonable expectation of privacy in thethe law continues to evolve, as evidenced by the electronic communications. Courts are generallyCourt’s refusal to expand its holding beyond the more inclined to rule in the employer’s favor wherenarrow confines on this case, a well-drafted and the employee voluntarily uses an employer’scommunicated policy will be critical in addressing network and/or computer and consented to bean employee’s expectation of privacy in connection monitored or was advised of the employer’s writtenwith electronic communication and preserving electronic communications policy.the employer’s ability to review and monitor thosecommunications. Federal Wiretap Act and the Electronic Communications Privacy Act (ECPA) of 1986,Monitoring employees’ social media use: amending the Federal Wiretap Act of 1968. ECPAPrivacy concerns imposes criminal and civil penalties againstConsidering the significant potential liability any person who intentionally intercepts anand other risks employers face from employees’ electronic communication with certain specificsocial media use, how far can employers go in exceptions, including an “ordinary course ofmonitoring these communications? Although business” exception. The Stored Communicationsthe Fourth Amendment to the U.S. Constitution Act (“SCA”), part of the ECPA, covers storedprohibits unreasonable searches and seizures by electronic communications. In one recent case,the government, it does not apply to private sector a federal court in New Jersey rejected theemployers. While private sector employees have no employer’s attempt to throw out a jury verdictinherent constitutional right to privacy, employer against managers at a Houston’s restaurant whoconduct is limited by common-law principles and intentionally and without authorization accessed afederal and state privacy laws, including: private, invitation-only chat group on MySpace in violation of the federal SCA.TORT: “Intrusion upon the plaintiff’s seclusionor solitude.” Private-sector employees have State Law. Various states protect a person’s rightcommon law “privacy rights” which are enforced to privacy through statutes or state constitutions.through tort claims based on invasion of privacy Some states prohibit electronic monitoring oftheories. The most applicable theory to employer- employee communications without two-partymonitoring of electronic communications is consent. Employers should check the relevant“intrusion upon the plaintiff’s seclusion or state privacy laws before monitoring employees’solitude.” Under this theory, an employee must social media use.prove: (1) an intentional intrusion, physical orotherwise, (2) upon the plaintiff’s solitude orRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 18
  21. 21. Strategies for Regulating ElectronicCommunicationsWhether employees are communicating with Again, in compliance with the decisions of thefriends outside the company or with coworkers National Labor Relations Board discussed above,and business partners regarding work-related employers should also consider amendingprojects, employers should have clear policies their handbook policies to provide a detailedregarding the use of social media both in and explanation of what is considered “acceptableoutside the workplace. Employees—who may use” (i.e., business use only, limited personalnot realize they can expose employers to risk use, or unlimited personal use). Employersby posting information on blogs and private can also implement a policy that reduces thesocial networking sites during work or non-work level of privacy employees expect in their workhours—should be informed of potential risks and computer systems, email, and Internet use.aware of the employer’s expectations. Indeed, courts have routinely considered whether an employer has an electronic communicationsThe precise contours of an employer’s social policy in determining whether an employeemedia use policy will depend on the organization, had a reasonable expectation of privacy. Whileits culture and approach to social technologies, such a policy will not necessarily insulate anand the nature of work performed. For instance, employer from all potential liability, it will reducea social media use policy for educators may be employees’ expectations of privacy and providevery different from a policy aimed at employees the employer with more discretion to take actionwho are encouraged to use social media for against employees who engage in misconduct.developing client relations. However, there aresome basic issues employers should addresswhen implementing a social media policy.In compliance with the decisions of the NationalLabor Relations Board discussed above,employers may take several actions. Employeesshould be warned that postings regarding: (1)proprietary and confidential company information;(2) discriminatory statements or sexual innuendosregarding coworkers, management, customers,or vendors; and (3) maliciously false statementsregarding the company, its employees, customers,competitors, or vendors will not be toleratedand will subject the individual to discipline.Confidential and proprietary information of theCompany must be appropriately defined to avoidrunning afoul of recent NRLB decisions.The policyshould specify that these prohibitions apply topostings and blogging occurring at any time, onany computer.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 19
  22. 22. Basing Hiring Decisions onInformation Obtained fromSocial MediaAs discussed earlier in this report, employers applicants to submit certain information withfrequently use social media to obtain information their resume or application; searching socialabout job applicants. So long as the employer networking sites may reveal such information anddoes not violate state or federal discrimination open the employer to the very risk it tried to avoid.laws, nothing currently prohibits an employmentdecision based on information an applicant places Other issues include learning about an applicant’sin the public domain. Nevertheless, employers arrest history, conviction, or workers’ compensationshould balance the need to obtain information claim. Similarly, federal law prohibits employersagainst the risks associated with acting on such from discriminating against an applicant basedinformation if it reveals an applicant’s protected on the employee’s current or prior filing forcharacteristics. bankruptcy. Employers must be careful of state and federal laws that prohibit employment discrimination on account of such information.When using social media to vet Employers should also avoid circumventingjob candidates, an employer may a potential employee’s privacy settings byinadvertently become aware pretending to be someone else in order to gain access to a restricted network.of an applicant’s protectedcharacteristics, such as race, age, One practical option is to have someone who is not a decision maker at the company conduct thesexual orientation, marital status, search in order to filter out protected information.disability, and even genetic This person can then provide the “scrubbed”information protected under information in document form to a decision maker for review.federal law. Another risk of using social media and other information obtained on the Internet to screenWhen using social media to vet job candidates, applicants is that the information discoveredan employer may inadvertently become aware may be inaccurate or misleading. For example,of an applicant’s protected characteristics, such a website seemingly run by, or affiliated with, aas race, age, sexual orientation, marital status, job applicant may not actually be related to, ordisability, and even genetic information protected even known by, the applicant. Additionally, falseunder federal law. Some states also prohibit information may be posted on blogs and otherdiscrimination on account of sexual orientation, social networking sites. Reputable news sourcespolitical affiliation, and off-duty conduct. If the are continually coming under fire for relying upon,employer decides not to hire the applicant, he without fully checking, Internet-based postings.or she could sue the employer, alleging that the Employers should keep this in mind when turningdecision was discriminatory. This is the precise to the Internet for information about job applicants.reason many employers have stopped requiringRising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 20
  23. 23. Question of Social Media AccountOwnership Need Not Be a Problemfor EmployersForward-thinking companies also embrace social business during his employment. When he left,media, networking sites and blogs for, among he changed the Twitter account handle andother things, branding, client development and continued to use the account. PhoneDog and itsservice, research, and marketing. While the former employee do not have a written agreementbenefits could be significant, social media use is pertaining to ownership of the disputed Twitternot without challenges for employers. account. The company alleged several claims against the departing employee, including misappropriation of trade secrets, conversion, andOne hot area is disputes between tortious interference with prospective advantage.employers and departing Another example is Eagle v. Morgan, 2011 U.S.employees over the ownership Dist. LEXIS 147247 (E.D. Pa., Dec. 22, 2011). Aof social media accounts. Such federal court in Pennsylvania denied a motion todisputes are on the dockets of dismiss a suit over an employee’s LinkedIn account. The disputed LinkedIn account was developedseveral federal district courts by company personnel and used for companythroughout the country. business. As in PhoneDog, the parties do not have a written agreement as to ownership of the account.One hot area is disputes between employers and These cases may be headed into prolonged anddeparting employees over the ownership of social extensive litigation. They may have been avoidedmedia accounts. Such disputes are on the dockets had the parties entered into clearly writtenof several federal district courts throughout the agreements at or near the inception of thecountry. Employers in these cases are asserting employment relationship. Such an agreement wasownership over company Twitter and LinkedIn upheld in Ardis Health, LLC v. Nankivell, 2011 WLprofiles claiming, among other things, that they 4965172 (NRB) (S.D.N.Y., Oct. 19, 2011). A federalcontain “trade secrets.” Employees dispute these court in New York granted a preliminary injunctioncontentions by pointing out that there is nothing requiring an employee to give her employer access“secret” about social media profiles and that to social media sites pursuant to obligations underemployers have no inherent property interests in the parties’ written Nondisclosure and Rights toTwitter and LinkedIn accounts. Work Product Agreement.In PhoneDog v. Kravitz, 2011 U.S. Dist. LEXIS Employers who profit from their employees’129229 (N.D. Cal., Nov. 8, 2011), for example, a use of social media should carefully analyzefederal court in California denied a motion to these issues. In many cases, a properly drafteddismiss where the employer sought damages for agreement delineating the property interests ineach Twitter follower that a departing employee employee work product will save employers fromtook with him. The employee was given use of and time-consuming and expensive litigation overmaintained a Twitter account for the employer’s ownership of social media accounts.Rising Above the Risks of Social Media: Responsibilities and Policies in the Workplace 21