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The Blog Is Mightier
Than the Sword!
Social Media
and the Electronic Employee
By Gloria Myers and Jonathan W. Yarbrough
“This is not fair!” shouted the Generation Y
employee who was being terminated because of what
she posted on her Facebook page while at work. “I
know my rights, and you’re violating my rights under the
National Labor Relations Act and my right to privacy,”
she continued. “You can’t do anything to me for post-
ing on my Facebook page and you certainly cannot read
my email! It’s not against the law to use Facebook,” she
cried. The human resources director knew the employee
was surely wrong about any rights under the National
Labor Relations Act since the employer was non-union.
But, concerned about her claims, and not being too
familiar with Facebook, the human resources director
excused herself to call in-house counsel to find out just
what steps she could take against this employee, whose
Facebook postings and emails sent from work dispar-
aged the company and her coworkers.
	 ACC Docket	 115	 May 2011
ACC Docket	 116	 May 2011
What dangers does employee use of
social media, such as blogging and
Facebook, pose to employers?
Blogs are easy to write, social media is
easy to use and the internet has immense
reach; hence, employee use of social media
poses a myriad of risks to employers.
Through social media, employees can leak
sensitive information to competitors. The
employee may disparage their employer,
coworkers, supervisors and customers, or
harass coworkers.3
Or, the employee may
unwittingly open the door for action by the
Federal Trade Commission by false and
deceptive advertising.4
These risks can re-
sult in numerous other problems, including
decreased morale in the workplace, the loss
of goodwill with customers, a ruined public
image and legal action.
What can an employer do in response to
employee use of social media?
While some employers may find that the
benefits of permitting the use of social me-
dia in the workplace outweigh the poten-
tial dangers, most employers will find that
some limits should be imposed. Assuming an employer
does not want to give employees carte blanche, what are
its options?
Ban employee use of social media — completely
An outright prohibition may be viewed as heavy-handed
and bad for business. Employees and potential employees
may resent what they see as an inappropriate abridgement
of their rights, and valuable resources may be wasted try-
ing to police an unpopular prohibition. Since most states
are employment at will states, an employer could fire an
employee for blogging. However, in some circumstances,
terminating an employee for blogging could form the basis
for a wrongful termination claim.5
The same could be true
for other statutorily protected activities, such as discuss-
ing compensation with other employees or whistleblow-
ing.6
The federal civil rights laws protect employees from
adverse action based on speech related to employment
discrimination, e.g., workplace harassment, and would
arguably apply to employee blogs.7
Prohibit employees from using social media at work,
or in a manner that harms the employer’s interests
This more moderate option seeks to limit social media
usage only to the extent that it interferes with the employ-
er’s business. Unless there is a clear benefit associated with
The described scene is increasingly more
common in today’s workplace as more em-
ployees turn to various forms of social media
including blogging, Facebook, Myspace and
Twitter. Many do so to keep up with friends
and family, search for an old flame, or simply
network with others. While all this seems
like harmless fun, sometimes an employee’s
use (or misuse) of social media can result
in embarrassment, financial loss and even
liability for the employer, leading to disciplin-
ary action, including termination, for the em-
ployee. Employers, and in house counsel, are
having to deal with a myriad of employment
law issues that arise from the “electronic em-
ployee” and his use of social media and other
forms of electronic communications.
Cyberventing, blogging and my
(employer’s) space
Web 2.0 has allowed for the creation of
new venues for office gossip and complaints
of disgruntled workers. Tales of bad bosses
and outrageous employment practices
spread over the internet by employees who
posted or post on cyberventing websites
including the now defunct www.f**kedcompany.com, and
the still operational www.workrant.com and www.ratemy-
boss.com. With cyberventing seemingly on the wane, em-
ployees have turned to blogging. There are blogs on about
every conceivable subject, including the proverbial taboo
subjects of money, religion and politics. Most troubling for
employers is the “workplace blog” in which bloggers write
about their experiences at work, including their coworkers
and supervisors.
Many employees also use Myspace, Facebook and
similar networking websites. For most people, personal
webpages are nothing more than a fun and easy way to
keep in touch with friends and family.1
However, a signifi-
cant minority reveal a little too much about themselves,
including their sexual proclivities, their prejudices, their
work ethic and even illegal activity. These revelations can
spill over into the workplace.
Because people (especially young people) generally
view personal webpages as a way to socialize, they fail to
recognize the potential ramifications that their postings
may have on their professional lives. For example, a teacher
in Charlotte, NC listed on her Facebook page that she was,
“Teaching chitlins in the ghetto of Charlotte.”2
She intend-
ed to share her comments only with family and friends, and
was surprised to be suspended after this post came to the
attention of her employer.
Gloria Myers is associate
general counsel for Mission Health
System, Inc., in Asheville, NC. She
is a member of the Health Law
Section of the North Carolina Bar
Association, and of the Corporate
Counsel and Medical Staff/
Credentialing Sections of the
American Health Lawyers’
Association. She received her JD
from Catholic University of America
in Washington, DC. She can be
contacted at gloria.myers@msj.org.
Jonathan W. Yarbrough is a
partner with Constangy, Brooks &
Smith, LLP and represents
management exclusively in all
aspects of the employment
relationship. He is a frequent
speaker and does extensive writing
on employment law topics,
including social media. Yarbrough
graduated from the University of
Louisville School of Law. He can be
contacted at
jyarbrough@constangy.com.
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ACC Docket	 118	 May 2011
exceptions to the ECPA, which would permit an employer to
monitor an employee’s telephonic and electronic communi-
cation activity within the workplace.
The business extension exception permits an employer to
monitor employee communications using telephonic and com-
puter equipment provided to the employee by the employer in
the ordinary course of its business.9
Under this exception, an
employer can monitor the communication until it determines
the communication is personal in nature.
allowing employees to blog or use other social media from
work, most employers will probably choose to prohibit
personal use by employees during work hours and in the
workplace. However, this approach may be too lenient.
Furthermore, trying to specifically list all possibilities
where employee use of social media may affect an employ-
er’s interests is bound to be a losing battle for the employer.
The “third way”— flexibility
Given the practical and legal risks of a complete ban,
and the inadequacy of a “work related only” ban, the best
approach may be to balance the positive aspects of employ-
ee use of social media with appropriate safeguards against
the greatest risks. Employers should establish written social
media policies that alert employees to potential liabilities
and reiterate their obligations to do no harm to the em-
ployer, its employees, customers and clients.
What are the legal issues associated with the
electronic employee?
Returning to the termination of our Generation Y em-
ployee, is it legal for the employer to look at the employee’s
Facebook posting and emails? Does she have a Constitu-
tional right that is being violated by her employer? Does
the National Labor Relations Act really have anything to
say regarding social media? Can an employer monitor an
employee’s Internet use, or review emails sent and received
by the employee using the employer’s computers?
The Electronic Communications Privacy Act of 1986
The Electronic Communications Privacy Act of 1986
prohibits (1) the unauthorized and intentional interception
of a wire, oral or electronic communication while the com-
munication is being transmitted, and (2) the unauthorized
and intentional access and disclosure of electronically stored
wire or electronic communications.8
Email is considered
electronic communication regulated by the ECPA, and there
are different levels of protection for electronic communica-
tions based on whether the communication is in-progress or
“stored.” If a communication is not “stored,” there are three
No employee wants to be “dooced” — the slang word
for someone who is fired for blogging or posting online
information about their employer and coworkers. Heather
Anderson B. Armstrong, whose workplace blogging led
to her firing, offers some very simple advice when writing
about work: “Never write about work on the Internet un-
less your boss knows and sanctions.” (www.dooce.com)
Employers should do more than simply sanction employ-
ees who want to blog or use other forms of social media
— they should have policies and guidelines.
Employers should prepare written policies that
detail both the employer’s and employee’s rights and
obligations while using social media, even when off
duty. The policy can be fairly simple: Don’t violate the
law and use good judgment with what you write. Don’t
try to set out all forms of social media covered under
your policy — if you try to list the various forms, your
list may be outdated by the time you finish typing it. Try
to focus your policy on what employees can do rather
than on what they can’t. However, your policy should
clearly state that employees should not use social media
to harass or disparage employees, customers, clients
and the employer. The employee should be encouraged
to be respectful in online communications — vulgar
or threatening language or defamatory statements
are unacceptable. Your policy should also provide that
employees cannot disclose confidential or proprietary
information online. In addition, since employee produc-
tivity is paramount, employees should be forewarned
against using social media while at work unless it is
part of their job. Employers don’t want to go online and
find Facebook status updates by employees who are
supposed to be working. Your policy should provide that
the employer may access the employee’s computer files
and email messages, and may monitor internet usage,
with or without prior notice. Finally, your policy must be
consistently applied and enforced.
Tips for Successful
Social Media Usage Policies
Despite a widely held
misconception, the United
States Constitution does
not expressly create
a right to privacy.
ACC Docket	 120	 May 2011
postings — after another employee gave managers her
password — criticizing management.15
More recently, the
Supreme Court granted certiorari in Quon v. Arch Wire-
less Operating Co., where the 9th
Circuit held notwith-
standing the city’s policy that it could review electronic
messages on equipment furnished to its employees — the
employee nevertheless had an expectation of privacy be-
cause of the way the policy was implemented.16
Although
the case may ultimately be decided upon whether the
Fourth Amendment law is applicable to that employer,
any action by the court that seems to expand the privacy
rights of employees is likely to have a ripple effect on re-
lated areas such as common law privacy claims. It is also
important to note that several states have laws similar
to the ECPA or SCA, which grant even further privacy
protections to employees.
Constitutional right to privacy
Despite a widely held misconception, the United States
Constitution does not expressly create a right to privacy.
Instead, as set forth by the Supreme Court in Griswold
v. Connecticut, an individual’s right to privacy is derived
from various guarantees contained within the Bill of
Rights. However, the constitutional protection created by
the Fourth Amendment is limited to instances in which
“state action” has occurred. Consequently, in the employ-
ment context, only public sector employees are ordinarily
capable of asserting a constitutional right to be free from
an invasion of their privacy.
Contrary to a right of privacy, which has to be judicially
inferred from the federal Constitution and its Amend-
ments, several states have chosen to expressly provide for
a right of privacy to their citizens within the text of their
own state constitutions. Constitutional rights of privacy in
the employment context vary state by state and are typically
only assertable by public sector employees.
Laws protecting off-duty conduct and the
National Labor Relations Act
Several states have statutes that prohibit employers
from taking adverse employment actions against em-
ployees because of their off-duty legal conduct. Gener-
ally, however, there is no protection for conduct that
creates a conflict of interest; therefore, actions harmful
to the company, such as revealing trade secrets online,
are not covered, and the employer could take action
against the employee.
Recently, however, the National Labor Relations Board
filed a complaint against an ambulance service company
which had fired a driver, in part, the complaint alleged,
because she had posted negative comments about the
company and her supervisor on her Facebook page.17
The
The service provider exception allows the agent of a
communication service provider to intercept, disclose
or use communications transmitted through its service
if the interception, disclosure or use occurs during the
agent’s normal course of employment and the moni-
toring is necessary to render the provider’s service or
for the protection of its property rights.10
Under the
consent exception, an employer may lawfully intercept
an electronic, wire or oral communication where one of
the parties to the communication has given prior con-
sent to such interception.11
Written consent is not actu-
ally required, and may be implied when appropriate
facts and circumstances exist. For example, in Kelleher
v. City of Reading, the court held that the plaintiff did
not have a reasonable expectation of privacy where the
employer notified employees about the employer’s email
monitoring policy.12
Stored Communications Act
The Stored Communications Act (SCA) also protects
communication held in electronic storage.13
A person vio-
lates the SCA if he accesses an electronic communication
service or obtains an electronic communication while
it is still in electronic storage without authorization. In
Pure Power Boot Camp v. Warrior Fitness Boot Camp,
the employer accessed an employee’s personal emails,
which were stored and accessed directly from accounts
maintained by an outside electronic communication
service provider.14
The employee did not send or receive
personal email through the company email system or
computer, and did not give implied consent to search
his emails by leaving his login information stored on
the company’s computers where it could be discovered.
The court held that the employer’s access was unauthor-
ized and violated the SCA, finding that the employee
had a reasonable expectation of privacy in his personal,
password-protected email accounts.
Additionally, in Pietrylo v. Hillstone Rest. Group d/b/a
Houston’s, a jury found an employer liable for compen-
satory and punitive damages to two servers fired after
managers accessed their password protected MySpace
Just because online information
is within an attorney’s grasp
does not mean that accessing
it is always permissible.
Informal discovery
With users of social media sharing details about their
lives on an almost-daily basis, access to their disclosures
may provide valuable information in an employment litiga-
tion case. A recent Facebook search of the word “job” in
the “Posts by Everyone” category reveals that: One poster is
quitting his job; one loves her job; one hates her job; and one
is ready to start his first day at a new job. Similar informa-
tion could be relevant to the issues of liability, damages, mit-
igation and credibility if the disclosure is made by a plaintiff
claiming that he was involuntarily terminated, is miserable at
his new job or has not been able to find new employment.
Instead of searching for a witness’s internet disclo-
sures site by site, counsel may consider broader searches,
such as through Google or Spokeo.com. With a Spokeo
subscription, a user can enter a person’s email address
and find that person’s various internet accounts such as
Amazon, Flickr or LinkedIn.
Voluntary internet disclosures create potential pitfalls
not only for employees (as potential plaintiffs) but also for
employers and their managers (as potential defendants)
in employment litigation. For example, a supervisory
employee accused of harboring a discriminatory animus
against Hispanics, and known to actively post comments
employee, Dawnmarie Souza, referred to her boss as a
“17” (the code for psychiatric patient) and used profani-
ties in reference to her supervisor. The NLRB took the
position that Souza’s postings were protected concerted
activity and are no different than if she were talking at the
company’s water cooler (except that the Facebook “water
cooler” has over half a billion users and postings may
exist forever). The NLRB contended that the ambulance
service’s internet and blogging policy unlawfully deterred
protected concerted activity because it prohibited (1)
online disparagement of the company and supervisors, and
(2) any depiction of the company on the internet without
prior permission. This case settled before its scheduled
hearing in February 2011. As part of the settlement, the
employer was required to revise its internet posting policy
so that it did not “improperly restrict” employees from
discussing issues related to their employment outside of
work. The issues presented by this case will continue to be
raised before the NLRB.
Discovery
Attorneys in employment litigation use social network-
ing sites and other voluntary internet disclosures as discov-
ery tools.
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ACC Docket	 122	 May 2011
in political forums, may find that his posts are being scru-
tinized by the plaintiff’s counsel. 	
Just because online information is within an attorney’s
grasp does not mean that accessing it is always permis-
sible. Blogger Molly DiBianca recently addressed the
issue of an attorney who considered having his agent
try to “friend” a non-party witness after a deposition.18
Specifically, an attorney informed the Professional Guid-
ance Committee of the Philadelphia Bar Association that
he wished to have a “friend request” sent to a non-party
witness whom he recently deposed and who was likely
to grant the request. The attorney stated that his agent
sending the request would only send truthful informa-
tion but would not disclose the reason for the request (to
obtain information useful to pending litigation) or that he
was employed by the lawyer. The committee determined
that the proposed conduct constituted an impermissible
deception that would violate Rule 8.4 of the Pennsylvania
Rules of Professional Conduct.
Formal discovery
Formal discovery of a person’s voluntary internet dis-
closures may be necessary when the information sought
cannot be accessed because of the person’s security
settings or when it would be necessary, and therefore
impermissible, to communicate directly with a party
represented by counsel. Establishing the relevance of
voluntary internet disclosures is particularly easy when
such disclosures are the focal point of the litigation. In
Ranck v. Rundle, a plaintiff claimed that his public sec-
tor employer suspended him in retaliation for one of his
blog entries in violation of the First Amendment.19
Not
surprisingly, there was no discovery dispute regarding
the blog entry at issue.
However there was a different result in Mackelprang v.
Fidelity Nat. Title Agency of Nevada, Inc., where Mackel-
prang sued her former employer and two of its vice presi-
dents, Bowers and Dunlap, for sexual harassment, battery
and several other state tort claims.20
Mackelprang alleged
that both Bowers and Dunlap frequently subjected her to
sexually inappropriate emails and that Dunlap coerced her
into having sexual relations with him so that he would not
fire her husband, who also worked at Fidelity.
During their investigation, the defendants discovered
two MySpace accounts believed to have been established
by Mackelprang — one where she listed herself as single;
the other married with six children. The defendants
subpoenaed MySpace and sought all records for these two
accounts. MySpace refused to produce private email mes-
sages on either account in the absence of a search warrant
or a letter of consent to production by the owner of the
account, which Mackelprang refused to execute.
With growing numbers of employees accessing the
internet at work, it was only a matter of time before
lawsuits followed over employees accessing and upload-
ing pornographic images. IBM was recently sued by a
former employee who was fired for visiting an adult chat
room while at work. Pacenza v. IBM Corporation, 2010 WL
346810 (C.A. 2 NY)(Feb. 2, 2010). The former employee
claimed that he visited chat rooms to treat traumatic
stress incurred during the Vietnam War. IBM claimed that
the former employee, James Pacenza, was fired for visit-
ing an internet chat room for a sexual experience after
having been warned against such activity. Pacenza, who
sought $5 million, sued under the ADA, claiming that he is
a sex addict and an internet addict. Pacenza was unable
to convince a court that his alleged addiction is covered
under the ADA as IBM prevailed on summary judgment.
According to a state court in New Jersey, an em-
ployer who has actual or imputed knowledge that an
employee is using a computer to access child pornog-
raphy, has a duty to investigate and to take prompt
action to stop the unauthorized activity. In Doe v. XYC
Corp., 887 A. 2d 1156 (N. J. 2005), a male employee used
company computers to upload nude photographs of his
stepdaughter to a child pornography site. Notably, a
few years before the employee was arrested on child
pornography charges, the company’s internet services
manager notified the network administrator that the
employee had been visiting pornographic sites, and
later, the employee’s immediate supervisor also notified
the network administrator that the employee had been
visiting inappropriate sites. After complaints from other
employees, the company spoke with the employee, who
stopped his activities for a few months before resuming.
Shortly thereafter, he was arrested.
The court found that because the employer had
actual knowledge of the employee’s use of the computer
for illegal activities, it had a duty to either report the
employee’s actions to law enforcement or terminate
him. While it is unclear whether other state and federal
courts would observe the holding in this case, employers
should take notice of the potential effect of this decision.
Employers are encouraged to monitor their employees’
use of the internet, as permitted by law, and to pro-
mulgate effective computer and internet use policies.
Further, the prudent employer will take prompt and ef-
fective action when it becomes aware of an employee’s
improper activity.
Internet Addiction and
Pornographic Material
Notes
1	According to the incomparable Betty White, “Facebook just
sounds like a drag. In my day, seeing pictures of people’s
vacation was considered a punishment.” Saturday Night Live,
NBC Television, May 8, 2010 (Betty White opening monologue).
2	 Teacher and Facebook: Privacy v. Standards, Fred Clasen-Kelly,
Charlotte Observer (Nov. 14, 2008).
3	 See, e.g., Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d
598 (D. NJ 1998) (Employer had duty to address harassing and
defamatory statements posted by coworkers about female pilot
on electronic bulletin board).
4	 16 C.F.R. Part 255, Guides Concerning the Use of
Endorsements and Testimonials in Advertising. (An employer
may face liability from an employee’s endorsements of the
employer’s products or services on social media websites,
even where the employer did not authorize or approve of the
employee’s remarks).
5	 See, e.g., Colorado Anti-Discrimination Act, Co. Rev. Stat.
Ann. § 24-34-402.5 (prohibiting employers from terminating
employees who engage in lawful conduct while off duty and off
the employer’s premises).
6	 See, e.g., Konop v. Hawaiian Airlines, 302 F. 3d 868 (9th
Cir.
2002) (Airline retaliated against employee for publishing articles
critical of company. Blog was protected concerted activity under
the Railway Labor Act).
Among other reasons, Fidelity argued that access to
the email accounts was justified because they thought
Mackelprang was an active and willing participant
in the sexual conduct about which she complained.
They “firmly believed” that Mackelprang was using
the private messaging functionality on MySpace to
facilitate the same types of electronic and physical
relationships she had characterized as sexual harass-
ment in her complaint. The district court found that
Fidelity raised a suspicion that Mackelprang, after the
end of her employment, may have engaged in sexually
related email communications on the MySpace internet
account in which she listed herself as a single woman
with no children. However, it also found that even if
the MySpace account contained sexually related email
messages exchanged between Mackelprang and others,
such evidence would not be admissible to support the
defense that defendants’ prior alleged sexual conduct
was welcomed by Mackelprang. Consequently, the court
denied Fidelity’s motion to compel.∑
Have a comment on this article? Visit ACC’s blog
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• Ping reviewers to get more information or initiate direct conversation.
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ACC Docket	 124	 May 2011
15	 Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420(D.
NJ Sept. 25, 2009).
16	 Quon v. Arch Wireless, 529 F. 3d 892 (9th
Cir. 2008) cert
granted sub nom City of Ontario v. Quon, 130 S. Ct. 1011
(2009).
17	 American Medical Response of Connecticut, Inc. and
International Brotherhood of Teamsters, Local 443, NLRB Case
No. 34-CA-12576 (Oct. 27, 2010).
18	 “Ethical Implications of ‘Friend-ing’ a Witness on Facebook,”
Delaware Employment Law Blog, May 19, 2009.
19	 Ranck v. Rundle, 2009 WL 1684645 (S.D.Fla.).
20	 Mackelprang v. Fidelity National Title Agency of Nevada, Inc.,
2007 WL 119149 (D. Nev. Jan. 9, 2007).
7	 See, e.g., Simonetti v. Delta Airline, Inc., No. 5-CV-2321
(N. D. Ga. 2005)(Flight attend fired for blogging claimed sex
discrimination among other claims).
8	 18 U.S.C. § 2510.
9	 18 U.S.C. § 2510(5)(a).
10	 18 U.S.C. § 2511(2)(a)(i).
11	 18 U.S.C. § 2511(2)(d).
12	 Kelleher v. City of Reading, 2002 WL 1067442 (E.D. Pa.
2002); But, see Stengart v. Loving Care Agency, Inc., 990 A.
2d 650 (N.J. 2010)(Company policy did not address personal
password protected web-based email accounts accessed on
company computer; employee had reasonable expectation of
privacy).
13	 18 U.S.C. §§ 2701-2711.
14	 Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F.
Supp. 2d 548 (S.D. N.Y. 2008).
ACC Docket
•	 How You Can Safely Use Social Media with Employees
(April 2010). This article focuses on using social networking
sites during the pre-employment screening stage, and
while monitoring and regulating use by current employees.
www.acc.com/docket/safeuse-socmed_apr10
Leading Practices Profiles
•	 Leading Practices in Privacy and Data Protection:
What Companies Are Doing (Aug. 2010). This Leading
Practices Profile examines data protection and privacy
practices of six companies and two associations.
www.acc.com/priv&dataprotect_aug10
•	 Social Networking for Companies: Leading Practices in
Leveraging Social Media for Business, Creating Social
Networking Policies and Using Social Media in Hiring
(Sept. 2009). In this LLP, six companies reveal how they
use social networking tools to transform communications,
market their product, drive innovation and boost employee
morale. www.acc.com/profiles/socialnw-co_sep09
Quick References
•	 Blogs and Social Media Marketing: Complying with the FTC’s
New Endorsement Guides (March 2011). This resource
focuses on the FTC’s guidelines for online media marketing.
www.acc.com/blogs_ftc_mar11
•	 Considerations in Drafting Effective Social Media
Policies (Dec. 2010). This quick reference guide
covers information on what social media is, which
social media sites are popular and what unique
challenges companies face when dealing with social
media policies. www.acc.com/draft-smp_dec10
•	 Data Privacy and Protection: EU as Compared with the
United States (April 2010). This QuickCounsel provides
information regarding data privacy and protection in the
European Union with a comparison to the United States.
www.acc.com/data_eu-us_apr10
Education
•	 Join us at ACC’s 2011 Corporate Counsel University®
(ccu.acc.com) for an introduction to social media
in the workplace with session 501 – Social Media:
The New Rules of Engagement. Plus, attend ACC’s
2011 Annual Meeting (http://am.acc.com) for a
great selection of sessions discussing social
media and how it affects the legal profession.
ACC has more material on this subject on our website. 	
Visit www.acc.com, where you can browse our resources
by practice area or search by keyword.
The new GLD button lets you click to copy, print or email
a checklist from certain ACC online resources.
ACC Extras on… Social Media and Data Privacy
ACC Europe’s 18th
Annual ConferenceHOW THE IN-HOUSE LAWYER CAN DRIVE THE CHANGING LEGAL LANDSCAPE
29 May-31 May 2011, Berlin, Germany
SESSION HIGHLIGHT
501 A Compliance Challenge - Data Protection
and Privacy
This workshop will examine some of the issues faced by
companies in gathering and processing personal data and
discuss how you can better ensure that your company
complies with national regulations. It will also examine
the European’s Commission’s upcoming review of the EU
Data Protection Directive and recent developments in data
protection statutes in other countries.
Moderators:
• Meike Kamp, Berliner Beauftragter für Datenschutz und
Informationsfreiheit Zentraler Bereich
• Melissa Lea, Chief Global Compliance Officer, SAP AG
• Dr Jessica Jacobi, Fachanwältin für Arbeitsrecht -
Rechtsanwältin; Partner, Kliemt &Vollstädt
ACC: By in-house counsel, for in-house counsel.
®
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you to network and exchange ideas with your peers in a pan-
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For more information,please visit www.acc.com/berlin.

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Blog is Mightier Than the Sword

  • 1. The Blog Is Mightier Than the Sword! Social Media and the Electronic Employee By Gloria Myers and Jonathan W. Yarbrough
  • 2. “This is not fair!” shouted the Generation Y employee who was being terminated because of what she posted on her Facebook page while at work. “I know my rights, and you’re violating my rights under the National Labor Relations Act and my right to privacy,” she continued. “You can’t do anything to me for post- ing on my Facebook page and you certainly cannot read my email! It’s not against the law to use Facebook,” she cried. The human resources director knew the employee was surely wrong about any rights under the National Labor Relations Act since the employer was non-union. But, concerned about her claims, and not being too familiar with Facebook, the human resources director excused herself to call in-house counsel to find out just what steps she could take against this employee, whose Facebook postings and emails sent from work dispar- aged the company and her coworkers. ACC Docket 115 May 2011
  • 3. ACC Docket 116 May 2011 What dangers does employee use of social media, such as blogging and Facebook, pose to employers? Blogs are easy to write, social media is easy to use and the internet has immense reach; hence, employee use of social media poses a myriad of risks to employers. Through social media, employees can leak sensitive information to competitors. The employee may disparage their employer, coworkers, supervisors and customers, or harass coworkers.3 Or, the employee may unwittingly open the door for action by the Federal Trade Commission by false and deceptive advertising.4 These risks can re- sult in numerous other problems, including decreased morale in the workplace, the loss of goodwill with customers, a ruined public image and legal action. What can an employer do in response to employee use of social media? While some employers may find that the benefits of permitting the use of social me- dia in the workplace outweigh the poten- tial dangers, most employers will find that some limits should be imposed. Assuming an employer does not want to give employees carte blanche, what are its options? Ban employee use of social media — completely An outright prohibition may be viewed as heavy-handed and bad for business. Employees and potential employees may resent what they see as an inappropriate abridgement of their rights, and valuable resources may be wasted try- ing to police an unpopular prohibition. Since most states are employment at will states, an employer could fire an employee for blogging. However, in some circumstances, terminating an employee for blogging could form the basis for a wrongful termination claim.5 The same could be true for other statutorily protected activities, such as discuss- ing compensation with other employees or whistleblow- ing.6 The federal civil rights laws protect employees from adverse action based on speech related to employment discrimination, e.g., workplace harassment, and would arguably apply to employee blogs.7 Prohibit employees from using social media at work, or in a manner that harms the employer’s interests This more moderate option seeks to limit social media usage only to the extent that it interferes with the employ- er’s business. Unless there is a clear benefit associated with The described scene is increasingly more common in today’s workplace as more em- ployees turn to various forms of social media including blogging, Facebook, Myspace and Twitter. Many do so to keep up with friends and family, search for an old flame, or simply network with others. While all this seems like harmless fun, sometimes an employee’s use (or misuse) of social media can result in embarrassment, financial loss and even liability for the employer, leading to disciplin- ary action, including termination, for the em- ployee. Employers, and in house counsel, are having to deal with a myriad of employment law issues that arise from the “electronic em- ployee” and his use of social media and other forms of electronic communications. Cyberventing, blogging and my (employer’s) space Web 2.0 has allowed for the creation of new venues for office gossip and complaints of disgruntled workers. Tales of bad bosses and outrageous employment practices spread over the internet by employees who posted or post on cyberventing websites including the now defunct www.f**kedcompany.com, and the still operational www.workrant.com and www.ratemy- boss.com. With cyberventing seemingly on the wane, em- ployees have turned to blogging. There are blogs on about every conceivable subject, including the proverbial taboo subjects of money, religion and politics. Most troubling for employers is the “workplace blog” in which bloggers write about their experiences at work, including their coworkers and supervisors. Many employees also use Myspace, Facebook and similar networking websites. For most people, personal webpages are nothing more than a fun and easy way to keep in touch with friends and family.1 However, a signifi- cant minority reveal a little too much about themselves, including their sexual proclivities, their prejudices, their work ethic and even illegal activity. These revelations can spill over into the workplace. Because people (especially young people) generally view personal webpages as a way to socialize, they fail to recognize the potential ramifications that their postings may have on their professional lives. For example, a teacher in Charlotte, NC listed on her Facebook page that she was, “Teaching chitlins in the ghetto of Charlotte.”2 She intend- ed to share her comments only with family and friends, and was surprised to be suspended after this post came to the attention of her employer. Gloria Myers is associate general counsel for Mission Health System, Inc., in Asheville, NC. She is a member of the Health Law Section of the North Carolina Bar Association, and of the Corporate Counsel and Medical Staff/ Credentialing Sections of the American Health Lawyers’ Association. She received her JD from Catholic University of America in Washington, DC. She can be contacted at gloria.myers@msj.org. Jonathan W. Yarbrough is a partner with Constangy, Brooks & Smith, LLP and represents management exclusively in all aspects of the employment relationship. He is a frequent speaker and does extensive writing on employment law topics, including social media. Yarbrough graduated from the University of Louisville School of Law. He can be contacted at jyarbrough@constangy.com.
  • 4. When it comes to protecting your intellectual property, our attorneys offer the right combination. We know business. We know science and technology. We deliver solutions. ProblemSolved. Attorney advertising. Prior results do not guarantee a similar outcome. IP LItIgAtIon, PAtentS, trAdemArkS, trAnSActIonS, coPyrIghtS www.hbsr.com
  • 5. ACC Docket 118 May 2011 exceptions to the ECPA, which would permit an employer to monitor an employee’s telephonic and electronic communi- cation activity within the workplace. The business extension exception permits an employer to monitor employee communications using telephonic and com- puter equipment provided to the employee by the employer in the ordinary course of its business.9 Under this exception, an employer can monitor the communication until it determines the communication is personal in nature. allowing employees to blog or use other social media from work, most employers will probably choose to prohibit personal use by employees during work hours and in the workplace. However, this approach may be too lenient. Furthermore, trying to specifically list all possibilities where employee use of social media may affect an employ- er’s interests is bound to be a losing battle for the employer. The “third way”— flexibility Given the practical and legal risks of a complete ban, and the inadequacy of a “work related only” ban, the best approach may be to balance the positive aspects of employ- ee use of social media with appropriate safeguards against the greatest risks. Employers should establish written social media policies that alert employees to potential liabilities and reiterate their obligations to do no harm to the em- ployer, its employees, customers and clients. What are the legal issues associated with the electronic employee? Returning to the termination of our Generation Y em- ployee, is it legal for the employer to look at the employee’s Facebook posting and emails? Does she have a Constitu- tional right that is being violated by her employer? Does the National Labor Relations Act really have anything to say regarding social media? Can an employer monitor an employee’s Internet use, or review emails sent and received by the employee using the employer’s computers? The Electronic Communications Privacy Act of 1986 The Electronic Communications Privacy Act of 1986 prohibits (1) the unauthorized and intentional interception of a wire, oral or electronic communication while the com- munication is being transmitted, and (2) the unauthorized and intentional access and disclosure of electronically stored wire or electronic communications.8 Email is considered electronic communication regulated by the ECPA, and there are different levels of protection for electronic communica- tions based on whether the communication is in-progress or “stored.” If a communication is not “stored,” there are three No employee wants to be “dooced” — the slang word for someone who is fired for blogging or posting online information about their employer and coworkers. Heather Anderson B. Armstrong, whose workplace blogging led to her firing, offers some very simple advice when writing about work: “Never write about work on the Internet un- less your boss knows and sanctions.” (www.dooce.com) Employers should do more than simply sanction employ- ees who want to blog or use other forms of social media — they should have policies and guidelines. Employers should prepare written policies that detail both the employer’s and employee’s rights and obligations while using social media, even when off duty. The policy can be fairly simple: Don’t violate the law and use good judgment with what you write. Don’t try to set out all forms of social media covered under your policy — if you try to list the various forms, your list may be outdated by the time you finish typing it. Try to focus your policy on what employees can do rather than on what they can’t. However, your policy should clearly state that employees should not use social media to harass or disparage employees, customers, clients and the employer. The employee should be encouraged to be respectful in online communications — vulgar or threatening language or defamatory statements are unacceptable. Your policy should also provide that employees cannot disclose confidential or proprietary information online. In addition, since employee produc- tivity is paramount, employees should be forewarned against using social media while at work unless it is part of their job. Employers don’t want to go online and find Facebook status updates by employees who are supposed to be working. Your policy should provide that the employer may access the employee’s computer files and email messages, and may monitor internet usage, with or without prior notice. Finally, your policy must be consistently applied and enforced. Tips for Successful Social Media Usage Policies Despite a widely held misconception, the United States Constitution does not expressly create a right to privacy.
  • 6.
  • 7. ACC Docket 120 May 2011 postings — after another employee gave managers her password — criticizing management.15 More recently, the Supreme Court granted certiorari in Quon v. Arch Wire- less Operating Co., where the 9th Circuit held notwith- standing the city’s policy that it could review electronic messages on equipment furnished to its employees — the employee nevertheless had an expectation of privacy be- cause of the way the policy was implemented.16 Although the case may ultimately be decided upon whether the Fourth Amendment law is applicable to that employer, any action by the court that seems to expand the privacy rights of employees is likely to have a ripple effect on re- lated areas such as common law privacy claims. It is also important to note that several states have laws similar to the ECPA or SCA, which grant even further privacy protections to employees. Constitutional right to privacy Despite a widely held misconception, the United States Constitution does not expressly create a right to privacy. Instead, as set forth by the Supreme Court in Griswold v. Connecticut, an individual’s right to privacy is derived from various guarantees contained within the Bill of Rights. However, the constitutional protection created by the Fourth Amendment is limited to instances in which “state action” has occurred. Consequently, in the employ- ment context, only public sector employees are ordinarily capable of asserting a constitutional right to be free from an invasion of their privacy. Contrary to a right of privacy, which has to be judicially inferred from the federal Constitution and its Amend- ments, several states have chosen to expressly provide for a right of privacy to their citizens within the text of their own state constitutions. Constitutional rights of privacy in the employment context vary state by state and are typically only assertable by public sector employees. Laws protecting off-duty conduct and the National Labor Relations Act Several states have statutes that prohibit employers from taking adverse employment actions against em- ployees because of their off-duty legal conduct. Gener- ally, however, there is no protection for conduct that creates a conflict of interest; therefore, actions harmful to the company, such as revealing trade secrets online, are not covered, and the employer could take action against the employee. Recently, however, the National Labor Relations Board filed a complaint against an ambulance service company which had fired a driver, in part, the complaint alleged, because she had posted negative comments about the company and her supervisor on her Facebook page.17 The The service provider exception allows the agent of a communication service provider to intercept, disclose or use communications transmitted through its service if the interception, disclosure or use occurs during the agent’s normal course of employment and the moni- toring is necessary to render the provider’s service or for the protection of its property rights.10 Under the consent exception, an employer may lawfully intercept an electronic, wire or oral communication where one of the parties to the communication has given prior con- sent to such interception.11 Written consent is not actu- ally required, and may be implied when appropriate facts and circumstances exist. For example, in Kelleher v. City of Reading, the court held that the plaintiff did not have a reasonable expectation of privacy where the employer notified employees about the employer’s email monitoring policy.12 Stored Communications Act The Stored Communications Act (SCA) also protects communication held in electronic storage.13 A person vio- lates the SCA if he accesses an electronic communication service or obtains an electronic communication while it is still in electronic storage without authorization. In Pure Power Boot Camp v. Warrior Fitness Boot Camp, the employer accessed an employee’s personal emails, which were stored and accessed directly from accounts maintained by an outside electronic communication service provider.14 The employee did not send or receive personal email through the company email system or computer, and did not give implied consent to search his emails by leaving his login information stored on the company’s computers where it could be discovered. The court held that the employer’s access was unauthor- ized and violated the SCA, finding that the employee had a reasonable expectation of privacy in his personal, password-protected email accounts. Additionally, in Pietrylo v. Hillstone Rest. Group d/b/a Houston’s, a jury found an employer liable for compen- satory and punitive damages to two servers fired after managers accessed their password protected MySpace Just because online information is within an attorney’s grasp does not mean that accessing it is always permissible.
  • 8. Informal discovery With users of social media sharing details about their lives on an almost-daily basis, access to their disclosures may provide valuable information in an employment litiga- tion case. A recent Facebook search of the word “job” in the “Posts by Everyone” category reveals that: One poster is quitting his job; one loves her job; one hates her job; and one is ready to start his first day at a new job. Similar informa- tion could be relevant to the issues of liability, damages, mit- igation and credibility if the disclosure is made by a plaintiff claiming that he was involuntarily terminated, is miserable at his new job or has not been able to find new employment. Instead of searching for a witness’s internet disclo- sures site by site, counsel may consider broader searches, such as through Google or Spokeo.com. With a Spokeo subscription, a user can enter a person’s email address and find that person’s various internet accounts such as Amazon, Flickr or LinkedIn. Voluntary internet disclosures create potential pitfalls not only for employees (as potential plaintiffs) but also for employers and their managers (as potential defendants) in employment litigation. For example, a supervisory employee accused of harboring a discriminatory animus against Hispanics, and known to actively post comments employee, Dawnmarie Souza, referred to her boss as a “17” (the code for psychiatric patient) and used profani- ties in reference to her supervisor. The NLRB took the position that Souza’s postings were protected concerted activity and are no different than if she were talking at the company’s water cooler (except that the Facebook “water cooler” has over half a billion users and postings may exist forever). The NLRB contended that the ambulance service’s internet and blogging policy unlawfully deterred protected concerted activity because it prohibited (1) online disparagement of the company and supervisors, and (2) any depiction of the company on the internet without prior permission. This case settled before its scheduled hearing in February 2011. As part of the settlement, the employer was required to revise its internet posting policy so that it did not “improperly restrict” employees from discussing issues related to their employment outside of work. The issues presented by this case will continue to be raised before the NLRB. Discovery Attorneys in employment litigation use social network- ing sites and other voluntary internet disclosures as discov- ery tools. EVALUATE OUTSIDE COUNSEL. Satisfied with the firms you’ve engaged? Share your opinions about the value law firms provide. • Score firms on six value-based criteria – it only takes a few moments. • Tell your in-house peers and help transform the legal landscape. • Help ensure that law firms are judging their success on your satisfaction. Find counsel. Drive change. Improve value. www.acc.com/valueindex ACC Value IndexConnecting Law FirmValue to Client Satisfaction.
  • 9. ACC Docket 122 May 2011 in political forums, may find that his posts are being scru- tinized by the plaintiff’s counsel. Just because online information is within an attorney’s grasp does not mean that accessing it is always permis- sible. Blogger Molly DiBianca recently addressed the issue of an attorney who considered having his agent try to “friend” a non-party witness after a deposition.18 Specifically, an attorney informed the Professional Guid- ance Committee of the Philadelphia Bar Association that he wished to have a “friend request” sent to a non-party witness whom he recently deposed and who was likely to grant the request. The attorney stated that his agent sending the request would only send truthful informa- tion but would not disclose the reason for the request (to obtain information useful to pending litigation) or that he was employed by the lawyer. The committee determined that the proposed conduct constituted an impermissible deception that would violate Rule 8.4 of the Pennsylvania Rules of Professional Conduct. Formal discovery Formal discovery of a person’s voluntary internet dis- closures may be necessary when the information sought cannot be accessed because of the person’s security settings or when it would be necessary, and therefore impermissible, to communicate directly with a party represented by counsel. Establishing the relevance of voluntary internet disclosures is particularly easy when such disclosures are the focal point of the litigation. In Ranck v. Rundle, a plaintiff claimed that his public sec- tor employer suspended him in retaliation for one of his blog entries in violation of the First Amendment.19 Not surprisingly, there was no discovery dispute regarding the blog entry at issue. However there was a different result in Mackelprang v. Fidelity Nat. Title Agency of Nevada, Inc., where Mackel- prang sued her former employer and two of its vice presi- dents, Bowers and Dunlap, for sexual harassment, battery and several other state tort claims.20 Mackelprang alleged that both Bowers and Dunlap frequently subjected her to sexually inappropriate emails and that Dunlap coerced her into having sexual relations with him so that he would not fire her husband, who also worked at Fidelity. During their investigation, the defendants discovered two MySpace accounts believed to have been established by Mackelprang — one where she listed herself as single; the other married with six children. The defendants subpoenaed MySpace and sought all records for these two accounts. MySpace refused to produce private email mes- sages on either account in the absence of a search warrant or a letter of consent to production by the owner of the account, which Mackelprang refused to execute. With growing numbers of employees accessing the internet at work, it was only a matter of time before lawsuits followed over employees accessing and upload- ing pornographic images. IBM was recently sued by a former employee who was fired for visiting an adult chat room while at work. Pacenza v. IBM Corporation, 2010 WL 346810 (C.A. 2 NY)(Feb. 2, 2010). The former employee claimed that he visited chat rooms to treat traumatic stress incurred during the Vietnam War. IBM claimed that the former employee, James Pacenza, was fired for visit- ing an internet chat room for a sexual experience after having been warned against such activity. Pacenza, who sought $5 million, sued under the ADA, claiming that he is a sex addict and an internet addict. Pacenza was unable to convince a court that his alleged addiction is covered under the ADA as IBM prevailed on summary judgment. According to a state court in New Jersey, an em- ployer who has actual or imputed knowledge that an employee is using a computer to access child pornog- raphy, has a duty to investigate and to take prompt action to stop the unauthorized activity. In Doe v. XYC Corp., 887 A. 2d 1156 (N. J. 2005), a male employee used company computers to upload nude photographs of his stepdaughter to a child pornography site. Notably, a few years before the employee was arrested on child pornography charges, the company’s internet services manager notified the network administrator that the employee had been visiting pornographic sites, and later, the employee’s immediate supervisor also notified the network administrator that the employee had been visiting inappropriate sites. After complaints from other employees, the company spoke with the employee, who stopped his activities for a few months before resuming. Shortly thereafter, he was arrested. The court found that because the employer had actual knowledge of the employee’s use of the computer for illegal activities, it had a duty to either report the employee’s actions to law enforcement or terminate him. While it is unclear whether other state and federal courts would observe the holding in this case, employers should take notice of the potential effect of this decision. Employers are encouraged to monitor their employees’ use of the internet, as permitted by law, and to pro- mulgate effective computer and internet use policies. Further, the prudent employer will take prompt and ef- fective action when it becomes aware of an employee’s improper activity. Internet Addiction and Pornographic Material
  • 10. Notes 1 According to the incomparable Betty White, “Facebook just sounds like a drag. In my day, seeing pictures of people’s vacation was considered a punishment.” Saturday Night Live, NBC Television, May 8, 2010 (Betty White opening monologue). 2 Teacher and Facebook: Privacy v. Standards, Fred Clasen-Kelly, Charlotte Observer (Nov. 14, 2008). 3 See, e.g., Blakey v. Continental Airlines, Inc., 2 F. Supp. 2d 598 (D. NJ 1998) (Employer had duty to address harassing and defamatory statements posted by coworkers about female pilot on electronic bulletin board). 4 16 C.F.R. Part 255, Guides Concerning the Use of Endorsements and Testimonials in Advertising. (An employer may face liability from an employee’s endorsements of the employer’s products or services on social media websites, even where the employer did not authorize or approve of the employee’s remarks). 5 See, e.g., Colorado Anti-Discrimination Act, Co. Rev. Stat. Ann. § 24-34-402.5 (prohibiting employers from terminating employees who engage in lawful conduct while off duty and off the employer’s premises). 6 See, e.g., Konop v. Hawaiian Airlines, 302 F. 3d 868 (9th Cir. 2002) (Airline retaliated against employee for publishing articles critical of company. Blog was protected concerted activity under the Railway Labor Act). Among other reasons, Fidelity argued that access to the email accounts was justified because they thought Mackelprang was an active and willing participant in the sexual conduct about which she complained. They “firmly believed” that Mackelprang was using the private messaging functionality on MySpace to facilitate the same types of electronic and physical relationships she had characterized as sexual harass- ment in her complaint. The district court found that Fidelity raised a suspicion that Mackelprang, after the end of her employment, may have engaged in sexually related email communications on the MySpace internet account in which she listed herself as a single woman with no children. However, it also found that even if the MySpace account contained sexually related email messages exchanged between Mackelprang and others, such evidence would not be admissible to support the defense that defendants’ prior alleged sexual conduct was welcomed by Mackelprang. Consequently, the court denied Fidelity’s motion to compel.∑ Have a comment on this article? Visit ACC’s blog at www.inhouseaccess.com/articles/acc-docket. FIND AND BENCHMARK OUTSIDE COUNSEL. Leverage your ACC network to make sure you have the best law firm representation available. • Search for firms that excel in specific practice areas and markets. • Read helpful comments about firm attributes and value practices. • Ping reviewers to get more information or initiate direct conversation. Find counsel. Drive change. Improve value. www.acc.com/valueindex ACC Value IndexConnecting Law FirmValue to Client Satisfaction.
  • 11. ACC Docket 124 May 2011 15 Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420(D. NJ Sept. 25, 2009). 16 Quon v. Arch Wireless, 529 F. 3d 892 (9th Cir. 2008) cert granted sub nom City of Ontario v. Quon, 130 S. Ct. 1011 (2009). 17 American Medical Response of Connecticut, Inc. and International Brotherhood of Teamsters, Local 443, NLRB Case No. 34-CA-12576 (Oct. 27, 2010). 18 “Ethical Implications of ‘Friend-ing’ a Witness on Facebook,” Delaware Employment Law Blog, May 19, 2009. 19 Ranck v. Rundle, 2009 WL 1684645 (S.D.Fla.). 20 Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149 (D. Nev. Jan. 9, 2007). 7 See, e.g., Simonetti v. Delta Airline, Inc., No. 5-CV-2321 (N. D. Ga. 2005)(Flight attend fired for blogging claimed sex discrimination among other claims). 8 18 U.S.C. § 2510. 9 18 U.S.C. § 2510(5)(a). 10 18 U.S.C. § 2511(2)(a)(i). 11 18 U.S.C. § 2511(2)(d). 12 Kelleher v. City of Reading, 2002 WL 1067442 (E.D. Pa. 2002); But, see Stengart v. Loving Care Agency, Inc., 990 A. 2d 650 (N.J. 2010)(Company policy did not address personal password protected web-based email accounts accessed on company computer; employee had reasonable expectation of privacy). 13 18 U.S.C. §§ 2701-2711. 14 Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548 (S.D. N.Y. 2008). ACC Docket • How You Can Safely Use Social Media with Employees (April 2010). This article focuses on using social networking sites during the pre-employment screening stage, and while monitoring and regulating use by current employees. www.acc.com/docket/safeuse-socmed_apr10 Leading Practices Profiles • Leading Practices in Privacy and Data Protection: What Companies Are Doing (Aug. 2010). This Leading Practices Profile examines data protection and privacy practices of six companies and two associations. www.acc.com/priv&dataprotect_aug10 • Social Networking for Companies: Leading Practices in Leveraging Social Media for Business, Creating Social Networking Policies and Using Social Media in Hiring (Sept. 2009). In this LLP, six companies reveal how they use social networking tools to transform communications, market their product, drive innovation and boost employee morale. www.acc.com/profiles/socialnw-co_sep09 Quick References • Blogs and Social Media Marketing: Complying with the FTC’s New Endorsement Guides (March 2011). This resource focuses on the FTC’s guidelines for online media marketing. www.acc.com/blogs_ftc_mar11 • Considerations in Drafting Effective Social Media Policies (Dec. 2010). This quick reference guide covers information on what social media is, which social media sites are popular and what unique challenges companies face when dealing with social media policies. www.acc.com/draft-smp_dec10 • Data Privacy and Protection: EU as Compared with the United States (April 2010). This QuickCounsel provides information regarding data privacy and protection in the European Union with a comparison to the United States. www.acc.com/data_eu-us_apr10 Education • Join us at ACC’s 2011 Corporate Counsel University® (ccu.acc.com) for an introduction to social media in the workplace with session 501 – Social Media: The New Rules of Engagement. Plus, attend ACC’s 2011 Annual Meeting (http://am.acc.com) for a great selection of sessions discussing social media and how it affects the legal profession. ACC has more material on this subject on our website. Visit www.acc.com, where you can browse our resources by practice area or search by keyword. The new GLD button lets you click to copy, print or email a checklist from certain ACC online resources. ACC Extras on… Social Media and Data Privacy
  • 12. ACC Europe’s 18th Annual ConferenceHOW THE IN-HOUSE LAWYER CAN DRIVE THE CHANGING LEGAL LANDSCAPE 29 May-31 May 2011, Berlin, Germany SESSION HIGHLIGHT 501 A Compliance Challenge - Data Protection and Privacy This workshop will examine some of the issues faced by companies in gathering and processing personal data and discuss how you can better ensure that your company complies with national regulations. It will also examine the European’s Commission’s upcoming review of the EU Data Protection Directive and recent developments in data protection statutes in other countries. Moderators: • Meike Kamp, Berliner Beauftragter für Datenschutz und Informationsfreiheit Zentraler Bereich • Melissa Lea, Chief Global Compliance Officer, SAP AG • Dr Jessica Jacobi, Fachanwältin für Arbeitsrecht - Rechtsanwältin; Partner, Kliemt &Vollstädt ACC: By in-house counsel, for in-house counsel. ® Once again,ACC Europe brings you a highly relevant and topical conference with sessions and workshops designed specifically for the in-house legal profession.Offering a choice of 20 different workshops,this conference is an unmatched opportunity for you to network and exchange ideas with your peers in a pan- European and global perspective. For more information,please visit www.acc.com/berlin.