Social Media in the Workplace


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Presentation from ACI's last EPLI Conference.

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Social Media in the Workplace

  1. 1. #ACIEPLI ACI’s21stNationalConferenceon EmploymentPracticesLiabilityInsurance Moderator: Alan B. Epstein, Esq. Chair of Employment Law Practice Group Spector, Gaden & Rosen P.C. Social Media in the Workplace David T. Vanalek, Esq. Claims Manager Markel Kirsten Hotchkiss, Esq. Vice President Global Employee Relations American Express Global Business Travel June 23-24, 2014 Tweeting about this conference? 6/23/2014 1 ACIEPLIConference-SocialMedia
  2. 2. #ACIEPLI Agenda  Introduction to Social Media Laws & Regulations Hiring, Firing & “Oh My”  Employer Liability for Employee Abuse & EPLI  Business Issues  Litigation Issues 6/23/2014 2 ACIEPLIConference-SocialMedia
  3. 3. #ACIEPLI ARE YOU READY? Social Networks Are Here! 6/23/2014 3 ACIEPLIConference-SocialMedia
  4. 4. #ACIEPLI Most Common Examples of Social Media 6/23/2014 4 ACIEPLIConference-SocialMedia
  5. 5. #ACIEPLI By the Numbers….  1.28 Billion Users on Facebook  241 Million Users on Twitter  500 Million Tweets per day (5,700 TPS)  300 Million Active Users on Google+  296 Million Users on LinkedIn 6/23/2014 5 ACIEPLIConference-SocialMedia
  6. 6. #ACIEPLI Social Networking Site Use By Age Group 2005-2013 6/23/2014 6 ACIEPLIConference-SocialMedia
  7. 7. #ACIEPLI Social Media – Global Scale  China  India  Facebook  United States 6/23/2014 7 ACIEPLIConference-SocialMedia
  8. 8. #ACIEPLI Global Issues  In 2010, 3 executives of Google were convicted of violating Italy’s privacy laws for allowing the posting of a video that was humiliating to the individual (teenager with Down Syndrome)  In 2010, Switzerland and Germany began investigating whether Facebook is violating privacy regulations by allowing the posting of photographs of people who do not have Facebook accounts and have not consented to such posting  In 2010, Arab Spring mobilized through Facebook  In 2011, Switzerland and Australia required GoogleStreetView to blur all images of faces and license plates before posting  Google waged a world class battle with China over the censorship of web content by its search engines  China's government has resorted to using its own Internet filters — known as the Great Firewall — to block some search results and Web sites from being seen in the mainland  As recently as last week, Iraqi government moved to shut down the internet to prevent social media communications. 6/23/2014 8 ACIEPLIConference-SocialMedia
  9. 9. #ACIEPLI “On Wednesday we clean up Qatanah, and on Thursday, god willing, we come home” Global Issues “Breaching Confidentiality” 6/23/2014 9 ACIEPLIConference-SocialMedia
  10. 10. #ACIEPLI Social Networking: Impact on Companies Invasion of Privacy Background Checks Internet Usage Policies Workplace Harassment Discovery of personal information Employee online conduct and company liability Revelation of confidential company information 6/23/2014 10 ACIEPLIConference-SocialMedia
  11. 11. #ACIEPLI Laws & Regulations 6/23/2014 11 ACIEPLIConference-SocialMedia
  12. 12. #ACIEPLI Discrimination/Harassment On March 12, 2014, the EEOC held a public meeting to better understand concerns and issues regarding the use of Social Media in and about the workplace The EEOC has already determined that Facebook postings could give rise to claims of unlawful harassment Debord v. Mercy Hospital, 10th Cir. 2014  An employer that promptly investigated and addressed an employee’s FB post that her supervisor “better keep his creepy hands to himself” was relieved of liability in a sexual harassment claim. 6/23/2014 12 ACIEPLIConference-SocialMedia
  13. 13. #ACIEPLI 6/23/2014 13 ACIEPLIConference-SocialMedia
  14. 14. #ACIEPLI Protected Conduct – Social Media  In October, 2010, the NLRB filed a claim against American Medical Response after it fired an employee who had made disparaging remarks about her supervisor on her FB page. The NLRB alleged that the employee was engaging in protected activity and therefore the company unlawfully retaliated against her.  AMR agreed that it would not implement any policy that “improperly restricts employees from discussing their wages, hours, and working conditions with co- workers and others while not at work.” 6/23/2014ACIEPLIConference-SocialMedia 14  Note: Protected concerted activity can be the act of one person, so long as it relates to terms and conditions of employment and purports to represent interests of others, 200 East 81st Restaurant Corp v. Arsovksi (NLRB ALJ NY 4/29/14)
  15. 15. #ACIEPLI Dawn Souza’s FB Page • Looks like I’m getting some time off. Love how the company allows a 17 to be a supervisor.” • [FYI: “17″ is the code the company uses for a psychiatric patient.] • Responses: • “Frank being a d***” • “Yep he’s a scumbag as usual” 6/23/2014ACIEPLIConference-SocialMedia 15
  16. 16. #ACIEPLI Hiring, Firing & “Oh My”  Hiring  Internal Investigations  Regulating the Use  Limiting the Use  Discipline 6/23/2014 16 ACIEPLIConference-SocialMedia
  17. 17. #ACIEPLI Hiring Practices  More than 1/3 employers search Social Media during the hiring process (different from recruiting tools) A 2013 Carnegie Mellon Study found that candidates whose profiles indicated they were Muslim were less likely to be called for interviews than those who indicated they were Christian.  There is just too much information out there. You may learn about the person’s sexual orientation, religious beliefs, and other protected categories. 6/23/2014 17 ACIEPLIConference-SocialMedia
  18. 18. #ACIEPLI Social Media Missteps – How Not To Use Social Media “I Hate My Job” 6/23/2014 18 ACIEPLIConference-SocialMedia
  19. 19. #ACIEPLI 6/23/2014 19 ACIEPLIConference-SocialMedia
  20. 20. #ACIEPLI 6/23/2014 20 ACIEPLIConference-SocialMedia
  21. 21. #ACIEPLI 6/23/2014 21 ACIEPLIConference-SocialMedia
  22. 22. #ACIEPLI Other Government Rules Federal Trade Commission Regulates advertising and requires posts to be forthcoming, truthful and not misleading Requires employees of a company who post about the company product to disclose their affiliation with the product – even on personal pages Regulation FD Requires publicly traded companies to issue announcements of material events to all investors at once Although the SEC allows companies to communicate earnings and other information through Social Media, it is still subject to scrutiny 6/23/2014 22 ACIEPLIConference-SocialMedia
  23. 23. #ACIEPLI Key Highlights of Social Media Policy Best Practices Employer May: • Require employees to disclose employer when commenting on company or competitor products (FTC) • Request employees to participate in social media on behalf of the company • Prohibit anonymity or pseudonymity on industry related postings (FTC) • Prohibit discriminatory or other unlawfully biased comments (EEO) • Prohibit threats of violence • Prohibit disclosure of company confidential or proprietary information (Privacy, Reg FD) • Prohibit disclosure of others’ personally identifiable information without permission (Privacy) • Discourage use of social media to report company policy violations (but see Debord Case) Employer May Not: • Require civility • Prohibit disparaging remarks • Prohibit postings that relate to terms and conditions of employment 6/23/2014 23 ACIEPLIConference-SocialMedia
  24. 24. #ACIEPLI Employer Liability for Employee Abuse & EPLI Coverage 6/23/2014 24 ACIEPLIConference-SocialMedia
  25. 25. #ACIEPLI What Constitutes a Social Networking Claim? 6/23/2014 25 ACIEPLIConference-SocialMedia •Improper discovery of personal information •Viewing of employee online conduct and company liability •Unlawful Invasion of Privacy • Illegal Background Checks
  26. 26. #ACIEPLI Business Issues 6/23/2014  Who owns it  Non-Competes 26 ACIEPLIConference-SocialMedia
  27. 27. #ACIEPLI Privacy and Ownership • At least 12 states prohibit employers from requiring employees to disclose their passwords to their social media accounts. • Laws typically do not apply to accounts used for business purposes • An exception typically exists for workplace misconduct issues 6/23/2014 27 ACIEPLIConference-SocialMedia
  28. 28. #ACIEPLI Non-compete/Non-solicitation KNF&T Staffing v. Muller, (Mass. 2013)  Employee left a recruiting job and signed a non-solicitation clause. Later, she took another recruiting job and updated her Link’d In Profile. The employer sued her for violating the non-solicitation clause. The court denied the claim, holding that the non- solicit did not prohibit her from updating her profile “disclosing her current employer, title, and contact information, and counting among her ‘Skills and Expertise’ such things as ‘Internet Recruiting,’ ‘Temporary Staffing,’ ‘Staffing Services,’ and ‘Recruiting.’” Two Courts in the UK have held that Link’d In contacts belong to the employer, even if opened as an employee’s personal account 6/23/2014 28 ACIEPLIConference-SocialMedia
  29. 29. #ACIEPLI Non-compete/Non-solicitation  Phonedog v. Kravitz – (CA 2011) Twitter accounts and their passwords (as described by PhoneDog) could constitute trade secrets – former employee required to turn information over to former employer  Eagle v. Morgan – (PA 2013) Owner sold company to new owners, fight ensued over Linked In account – former owner successfully proved invasion of privacy by misappropriation of identity, tortious interference with contract, unauthorized use of name in violation of Pa. C.S. § 8316, misappropriation of publicity, identity theft under Pa. C.S. § 8316, conversion, civil conspiracy, and civil aiding and abetting, but couldn’t prove actual damages  Ardis Health v. Nankivell – (NY 2011) Nankivell worked for Ardis Health as "Video and Social Media Producer," and had duties and responsibilities to the company including the maintenance of certain websites, blogs, and social media sites for the purpose of online marketing. In carrying out these responsibilities, Nankivell maintained the passwords, login information, and email accounts associated with these sites. After she left the job, she took this information with her. Ardis Health successfully sued for the return of all the information. Key fact was that Nankivell had signed a Work for Hire agreement while working with the company. 6/23/2014 29 ACIEPLIConference-SocialMedia
  30. 30. #ACIEPLI Litigation Issues  Discovery  Jury Instructions 6/23/2014 30 ACIEPLIConference-SocialMedia
  31. 31. #ACIEPLI Questions or Comments? 6/23/2014 31 ACIEPLIConference-SocialMedia