Social Media in the Workplace

1. BEYOND THE WATER COOLER
The Impact of “Socializing” and Managing Social Media in the Workplace
Silvia King, FGP International
Mark Bakker, Wyche P.A.
August 26, 2014

2. COMMUNICATION & INFORMATION DISSEMINATION REVOLUTION

6. BACKGROUND FOR HR

7. SHRM 2012 SURVEY RESULTS: SOCIAL MEDIA IN BUSINESS STRATEGY AND OPERATIONS
40% of companies who responded had a SM policy
www.shrm.org/research | twitter@SHRM_Research
Of those companies with a policy, 33% indicated taking disciplinary action for violation of the policy

8. Overall, the majority of companies reported that HR is responsible for creating and enforcing these policies
www.shrm.org/research | twitter@SHRM_Research
Majority of companies use SM for internal communication and information sharing
55% of companies planned to increase their SM usage over the next 12 months

9. Statistics
Source: Statisticbrain.com
“72% of all internet users are now active on social media”

10. How can you restrict social media at work so that productivity is not impacted and so that the employer has some control?
How do you address personal devices at work?
How can you protect valuable contacts through social media from being taken by your employees when they leave?
When is it acceptable to fire for inappropriate pictures or comments that don’t align with company values?
What do you do if you find out that your employees have a secret blog specifically created for complaining?
What are the legal implications of using social media in hiring decisions?
Basic Questions Mark Bakker?

11. PRE-EMPLOYMENT CONCERNS

12. SURVEY: GOGULF.COM

15. Job Applicant tweeted the following:

16. Applicant was not hired…

17. SOCIAL MEDIA – HIRING BEST PRACTICES
SM after interview
Tool in toolkit
Don’t pass on questionable info to decision maker
Establish policy and guidelines
Conduct training on hiring best practices
SHRM “Use Social Media Smartly When Hiring” Steve Bates 3/19/13

18. SOCIAL MEDIA – HIRING (LEGAL IMPLICATIONS)
•Risks
False identity/inaccurate info
Impermissible subject matter
•Limit Risks
Third party vendors
Separate cyber-vetters from decision makers

19. SOCIAL MEDIA – ACCESS TO PASSWORDS
•Accessing passwords – with permission
•Banned in 12 states
•Not recommended
Fair Game: unsecured, publicly available social media
•Accessing passwords – no authorization
•Trapp v. DHS
•resorting to self-help could expose an employer to civil and possible criminal liability

20. MANAGING SOCIAL MEDIA IN THE WORKPLACE

21. CASE STUDY #1
EMT suspended for inadequate report
Later, commented that supervisor a “scumbag” and a “17”
Employer terminated

22. CASE STUDY #2
Salesman Terminated

23. CASE STUDY #3
Employees of non-profit assisted victims of domestic violence
One posts Facebook comment: “Lydia Cruz, a coworker feels that we don’t help our clients enough. I about had it! My fellow coworkers how do u feel”
Four off-duty employees respond and object to assertion by Cruz
Cruz complains to supervisor about being bullied on-line
All five employees terminated for “bullying and harassment” of Cruz

24. LEGAL IMPLICATIONS

25. NATIONAL LABOR RELATIONS BOARD
Signs of Aggressive activity

26. NLRB
Why?

27. NATIONAL LABOR RELATIONS ACT
Covers most private-sector employees
“Section 7” rights:
 guarantees employees the right to “engage in” “concerted” and “protected” activities with other employees
Protected activities include:
Discussing wages, discipline, unions
Complaining about policies, supervisors
Complaining about terms/conditions of employment
NLRB counsel: not “new” but “catch up”

28. SOCIAL NETWORKING POLICIES (NLRB)
Activity may be protected if
Done on employee’s time and equipment
Related to terms/conditions of employment or exercise of NLRA rights
Involves “concerted” activity
Swearing/name calling may not justify termination
Overbroad policies will be scrutinized

29. NLRB ON SOCIAL MEDIA POLICIES
Examples of prohibitions/policies NLRB says can be “overbroad”
Inappropriate Discussions
Gossip
Defamation
Disparagement
Privacy
Confidentiality
Restricted Use of Company Name, Address & Logo

30. DRAFTING YOUR SOCIAL MEDIA POLICY
You CAN prohibit social media postings that:
Make comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, or harassing
That constitutes illegal discrimination or harassment
Carry out illegal conduct
Are maliciously untrue
Specific examples are key
Disclaim that not interfering with NLRA rights
CLARITY FROM NLRB CASES

31. Bring Your Own Device Policy (BYOD)
Benefits
Employees carry single device
Convenience/practical response to technology
Reduce costs of devices to employer
Risks
Security concerns
Potentially higher IT costs
Disaster for discovery in litigation
Erosion of personal/business spheres

32. BYOD EMPLOYMENT LAW ISSUES
Personal Privacy protections
Computer Fraud and Abuse Act
Stored Communications Act
Wage & Hour considerations
Harassment/hostile work environment
Security of confidential information

33. BYOD POLICY
Broad Authorization to:
Monitor use and content
Wipe data upon termination/lost device
Turn over devices for investigations
Diminished expectation of privacy
Obligation to notify if lost/stolen
Require data encryption/password protection

34. SOCIAL MEDIA - POST EMPLOYMENT CONCERNS

35. SOCIAL MEDIA – OWNERSHIP
Who gets the friends when the employment relationship breaks up?

36. BEST COMPANY PRACTICES TO PROTECT SOCIAL MEDIA
Company establishes Account (name and content)
Structural protection
Adopt uniform branding, content and style guides
Assign employees to administer SM accounts
Anticipate separation of employment
Reference SM in restrictive covenants
Have manager also keep account/password information
Take quick action upon separation of employment

37. MOST IMPORTANT: HAVE A POLICY
Written agreement/policy that clarifies rights and duties
Blogs, accounts are company property
Employee must transfer all account information upon termination
Administering SM is part of employee’s job
Remember NLRB admonitions: Write policies in pencil rather than in pen

38. SOCIAL NETWORKS AND RESTRICTIVE COVENANTS
Nonsolicit of employees
Nonsolicit of customers
Cases not well developed

39. AMWAY GLOBAL V. WOODWARD (E.D. MICH 2010)
Former Employee Maintained and operated blog
Blog formed basis of violation of nonsolicit provision
“If you knew what I knew, you would do what I do”
Employee: blogs passive and untargeted
Court disagreed:
“Common sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation.”

40. ANALYSIS
Connection (itself) unlikely to be considered violation.
Would same message conveyed by email or letter be violation?
Two critical factors:
Who received the message?
What is the message?
FAMILIAR FRAMEWORK

41. TAKEAWAYS
Use Social Media as a tool
Review your policies regularly
Be careful with discipline (NLRB)
Be flexible –legal context evolving!

42. BEYOND THE WATER COOLER
The Impact of “Socializing” and Managing Social Media in the Workplace
Silvia King, FGP International
Mark Bakker, Wyche P.A.
August 26, 2014