Social media in the workplace

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Like it or not, social media has become the norm. Social Media sites such as Facebook, Twitter and LinkedIn, as well as other informationsharing sites and blogs have forever changed the way people communicate. Employers need to recognize that their employee's personal use of these social networking websites - whether or not the employer permits personal use of these websites at work - is rife with these potential employment issues and other legal exposures, such as potential claims or employee harassment, unfair labor practices and unauthorized disclosure of statutorily-protected information about the company, its customers and employees. This session will address how employers can avoid exposure arising from such risks and how employers need to protect themselves.

Stuart R. Buttrick, partner, Faegre Baker Daniels LLP
Joel Patrick Schroeder, associate, Faegre Baker Daniels LLP

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Social media in the workplace

  1. 1. Social Media in theWorkplaceStuart R. Buttrick & Joel P. SchroederFaegre Baker Daniels LLPMinnesota Chamber of Commerce2012 Business Conference & Annual MeetingSeptember 25, 2012 fb.us.9174236
  2. 2. Today’s Topics:► Social Media in the Workplace – Quick statistics on social media – Laws that affect use of social media in the workplace • National Labor Relations Act • Fair Credit Reporting Act • Anti-discrimination / anti-retaliation laws • Privacy protections • Uniform Trade Secrets Act – Reducing risk – Social media policies 2
  3. 3. Social Medial Landscape 3
  4. 4. Your Employees Are Using Social Media Right Now 4
  5. 5. SHRM SurveyThe Society for Human Resource Management (SHRM) recentlyreleased the findings of a social media survey they conducted. Whenasked if any groups or individuals in an organization currently engage insocial media activities to reach external audiences, 68% of peoplesurveyed repliedwith “yes”.Some other interesting findings from the survey include:►31% of companies track employee use of social media services.►43% block access to social media platforms on company computersand handheld devices.►The three most likely groups in an organization to use social mediaare marketing (67%), HR (44%) and public relations (38%).►Only 27% of companies provide social media training to employeeswho engage in social media activities on behalf of the company. 5
  6. 6. Social Media: Risks Created by Employee Use► Disclosure of confidential or proprietary information of the company or customers► Disclosure of material inside information in violation of securities laws► Damage to brand, image or reputation of the company► Statements that are harmful, offensive, or inflammatory► Claims for negligent hiring or retention► Unauthorized statements or endorsements on behalf of the company► Wage/hour claims 6
  7. 7. The Legal IssuesPotentially hundreds of federal and state laws could affect the use ofsocial media in the workplace.The laws getting the most attention are:►The National Labor Relations Act►The Fair Credit Reporting Act►Anti-discrimination statutes such at Title VII, the Age Discrimination inEmployment Act and the Americans with Disabilities Act►General privacy rights under the Constitution, Stored CommunicationsAct or Federal Wiretap Act►Uniform Trade Secrets Act (and non-compete / breach ofconfidentiality cases) 7
  8. 8. Social Media Are Giving Employers Headaches…► Bland v. Roberts, 2012 WL 1428198 (E.D. Va. Apr. 24, 2012) (plaintiff fired for “liking” a political candidate on Facebook; court ruled that merely “liking” was insufficient speech to merit constitutional protection) (n/a to private ER; now on appeal before the Fourth Circuit)► Maremont v. Susan Fredman Design Group, Ltd., 2011 U.S. Dist. LEXIS 26441 (N.D. Ill. Mar. 15, 2011) (employer impersonating employee on Facebook/Twitter accounts)► Ade v. Kidspeace Corp., 698 F. Supp. 2d 501 (E.D. Pa. 2010) (fired employee sued employer for failing to discipline another employee for sending sexually explicit messages to a co-worker through MySpace)► Amira-Jabbar v. Travel Servs., Inc., 2010 U.S. Dist. LEXIS 76363 (D.P.R. July 28, 2010) (employee sued former employer based on discriminatory remark that another employee made on his Facebook “wall” with company computer during work time)► Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D. Cal. Dec. 7, 2009) (Starbucks employees expressed concern over their safety, based on threats that a co- worker made against them and Starbucks on MySpace)► Yath v. Fairview Clinics, 767 N.W.2d 34 (Minn. Ct. App. 2009) (suggesting that employer could potentially be liable for invasion-of-privacy claim based on an employee’s posting of private information on MySpace) 8
  9. 9. Labor Law Considerations► National Labor Relations Act (“NLRA”): Section 7 of the NLRA prohibits employers from enacting policies that stifle or prevent employees from engaging in “concerted activity” for “mutual aid and protection.”► According to the NLRB, there are two main points to consider: – Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. – Employee comments on social media are generally not protected if they are gripes not made in relation to group activity among employees. 9
  10. 10. Protected Activity & Social Media: What We Know► Anemployee is protected under the NLRA when engaging in a discussion of work conditions with other coworkers on social media. E.g.: – Facebook post with comments. – Twitter discussion and retweets. – Blogs with comments. 10
  11. 11. Protected Activity & Social Media:What We Think We Know► What about posts that do not receive a coworker response? – Currently unclear. – Given the NLRB’s current aggressive stance, employers must be cautious in disciplining any social media ??? usage that involves employee concerns. – More latitude if the post clearly involves a concern unique to the employee or clearly does not involve work conditions (like Twitter case). 11
  12. 12. Problematic Language in Social Media Policies …► Troubled Language — according to the NLRB – Student Transportation of America (settled before hearing) • Policy bans “the use of electronic communication and/or social media in a manner that may target, offend, disparage or harm customers, passengers or employees.” – American Medical Response, Inc. (settled before hearing) • “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employees superiors, co-workers and/or competitors.” – Costco Wholesale Corp. (NLRB Sept. 7, 2012) (first decision addressing a social media policy by NLRB) • Policy prohibiting employees for posting statements that “damage the Company…or damage any person’s reputation.” 12
  13. 13. Lawful Social Media Policies – according to the NLRB► A policy prohibiting the use of social media to post or display comments about co- workers, supervisors, or the employer that were vulgar, obscene, threatening, intimidating, harassing, or in violation of the employer’s anti-discrimination and anti- harassment policies. The NLRB stated that forbidding “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage” would not be reasonably understood to restrict Section 7 activity.“► A policy requiring employees to confine their social networking to matters unrelated to the company or if necessary to ensure compliance with securities regulations and other laws. The NLRB stated that employees would reasonably “interpret the rule to address only those communications that could implicate security regulations.”► A policy prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers and patients. The NLRB stated that “employees would reasonably understand that this rule was intended to protect the privacy interests of the Employer’s customers and not to restrict Section 7 protected communications.” 13
  14. 14. The Importance of Liking Something► “Like”button may be enough to trigger NLRA rights – InThree D LLC d/b/a Triple Play Sports (NLRB ALJ Jan. 3, 2012), the ALJ addressed whether the NLRA protected an employee whose only involvement in an online employee discussion of a payroll tax withholding was to click the “Like” button on a Facebook page. Looking at the Facebook "wall” the ALJ found the employee engaged in concerted activity because the employee used the “Like” button to express approval of other employee complaints concerning payroll tax issues. – Old rules; new technology! 14
  15. 15. Fair Credit Reporting Act► The Fair Credit Reporting Act requires a job applicant’s or current employee’s consent before the employer hires a third party to run background checks.► Many background checks and third-party investigations now include social media searches. If these searches are performed and the proper consent is not obtained, the employer could violate the FCRA and subject itself to civil penalties. 15
  16. 16. Anti-Discrimination & Anti-Retaliation Laws► Employers conducting their own Google or Facebook search as part of employment decisions will normally obtain information about the candidate’s protected characteristics on the user’s profile page through photos, wall posts and affiliations. 16
  17. 17. Anti-Discrimination & Anti-Retaliation Laws► Itis easy to imagine a lawsuit for discrimination when a candidate is not chosen and the employer admits to having viewed the candidate’s social media page that revealed a protected characteristic not present on the chosen candidate’s page. 17
  18. 18. Reducing Risk: Investigating Job Candidates► Make a policy decision whether or not to conduct Internet searches of candidates.► Establish search protocols and procedures and apply them consistently.► Decide whether to use a consumer reporting agency and make appropriate disclosures.► Provide EEO training (including GINA) for internal staff.► Decide what candidates to search and when during the process.► Search only publicly available information that is not password-protected.► Consider appropriate, confidential documentation.► Insulate the decision maker from impermissible considerations.► Check your facts. 18
  19. 19. Privacy ConcernsIn general, an employer is permitted to monitor work-related use of electronicallygenerated communications when the monitoring serves a legitimate business interest andthe employer has a policy or disclaimer notifying employees that their electronically-generated communications will be monitored. Employers should be aware of privacyconcerns when they monitor employees’ electronic communications.BUT REMEMBER: – The Wiretap Act: Permits an employer to intercept electronic communications where there is a legitimate business reason for the interception. An employee’s failure to restrict privacy settings will likely lead to legitimate viewing of his or her social media profile. – Stored Communications Act: Congress passed the SCA to prevent communication providers from divulging private communications to certain entities and individuals. How does this affect employers? • Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009): employer found liable under the SCA for coercing an employee to give it the password to a private MySpace page used by employees to complain about work conditions and then firing the page’s creator. – Employers could violate either the Wiretap Act or the Stored Communications Act by accessing private information. – Public employers need to be wary of First Amendment concerns when monitoring employees’ use of government-owned computers. 19
  20. 20. Uniform Trade Secrets Act Misappropriation and Conversion An employee developed and maintained a Twitter account using his own identity in furtherance of his job working for an interactive news web resource. He developed a large Twitter following. When he was terminated, the company asked him to turn over the use of the Twitter account. The employee declined, changed his Twitter password and account name and continued to use the account. The company sued the employee for misappropriation of trade secrets, conversion, and interference with economic advantage. The case will ultimately address whether a Twitter account and its followers are protectable trade secrets. 20
  21. 21. Reducing Risk: Monitoring EmployeesApply the same considerations as for candidates and:►Seek legal advice regarding information that may be subjectto attorney-client privilege.►Adopt a social media policy. 21
  22. 22. Reducing Risk: Imposing Discipline► Rely only on information permissibly obtained.► Insulate the decision maker from impermissible considerations.► Check your facts.► Apply policies and administer discipline consistently.► Seek legal advice. 22
  23. 23. Reducing Risk: Enforcing a Social Media Policy► Set clear expectations for employees.► Be specific in what is prohibited; avoid broad-brush statements like “be respectful.”► Consider offering training for best practices.► Enforce policy in a consistent and lawful manner. 23
  24. 24. But Have Fun; It Shouldn’t Come To This… 24
  25. 25. Stuart R. Buttrick, Esq. Joel P. Schroeder, Esq.stuart.buttrick@FaegreBD.com joel.schroeder@FaegreBD.com (317) 237-1038 (612) 766-8860 25

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