This document discusses social media and its interaction with HR/employment issues. It covers topics like: 1) Employers checking applicants' social media profiles during hiring can find personal information but also information protected by laws like genetic information or past criminal history. 2) Employers should have tailored social media policies to address issues while avoiding interfering with employees' rights to engage in protected concerted activities. 3) The NLRB has ruled that terminating employees for some social media use, like discussions of working conditions, can violate the NLRA, while other uses like inappropriate or offensive individual comments are not protected.

1. BY: MICHAEL J. DAVEY, ESQ. Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C. 344 West Front Street Media, PA 19063 (610) 565-3700 www.paemploymentlaw.blogspot.com mdavey@eckellsparks.com @PaEmploymentLaw SOCIAL MEDIA PLUS OMG!

2. The interaction of Social Media and HR/employment issues. Employers - adapting to employee use of Social Media and handling hiring, firing, and policy issues. Employees – training on employer expectations and how to be responsible users.

3. Social Media has changed business, and the way companies do business, forever. Communication to consumers & clients used to be one-way. Social Media now allows for simultaneous two-way communications between company and consumer.

4. Currently, Facebook has more than 800,000,000 active users and more than 50% log on every day That is 1 out of every 8.5 people in the entire world Average Facebook user has 130 friends More than 350,000,000 active users access Facebook through mobile devices 57% of people talk to other people more online than they do in person

6. News Communication Sharing photos & videos Marketing & Advertising Other 1 in 5 couples meet online. 1 in 5 divorces are blamed on Facebook.

7. (1). Use in Hiring (2). Social Media Policies (3). Firing / Discipline 80% of companies use social media for recruitment. 95% of those use LinkedIn.

8. “ The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” City of Ontario v. Quon , U.S. Supreme Court (6/17/2010) During oral arguments in Quon , Chief Justice John Roberts asked (seriously) what the difference was “between email and a pager?”

10. How many people have checked out an applicant’s Facebook page, Twitter or other social media site during the hiring process?

11. Screening applicants What kinds of things might appear on an applicant’s social media website? Personal habits, social activities, education, hobbies, etc. According to Careerbuilder.com, 20% of companies admitted to checking applicants’ profiles before deciding to hire them. 9% more said they would start.

12. But, what kinds of information might be present that you do not want to know about? Title VII, ADAAA, Pregnancy, ADEA, GINA, etc. What happens in Vegas stays in Vegas. And also on Facebook, YouTube, Twitter, Flickr, Foursquare . . .

13. Under GINA, it is illegal to discriminate against applicants on basis of genetic information. Employer is generally prohibited from acquiring genetic information about applicants, or accessing sources where employer is likely to acquire genetic information.

14. “ Genetic information” includes: genetic diseases or disorders, genetic tests, and family medical history.

15. Stored Communications Act Limits compelled disclosure of electronic communications held by internet service providers such as Facebook. Fair Credit Reporting Act Requires applicants to provide authorization if a party other than employer conducts background check. New Philadelphia Ordinance generally prohibits employers from asking about, or forcing disclosure of, an applicant’s prior criminal history.

16. Ask yourself – is it really necessary? If necessary, consider having employee who is not involved in hiring process / decision review social media content.

18. Why are they needed? Address problems / issues associated with employee usage. Address employee expectations. Limit (?) employer liability. A July 2011 study of more than 120 multinational employers revealed 76% used social media for business. More than 50% did not have social media policies.

19. A must have. No “one-size-fits-all” policy. Should be tailored to company & business. Major League Baseball has a specific social media policy that applies only to MLB personnel – not to the players.

20. Who to involve? Management H.R. I.T. Marketing / P.R. Legal Employees

21. Sets expectations for employees. Prohibits disclosure of trade secrets / privileged information. Delineation between employee vs. employer (disclosures; FTC regulations)

22. No expectation of privacy. Establishes defined rules – useful for UC issues. Provides for uniform system of enforcement.

23. Does not interfere with NLRA rights. NLRB is making point of investigating cases of employee discipline arising from social media use.

24. Section 7 of NLRA allows employees to engage in “concerted activities,” for “mutual aid or protection.” Section 8(a)(1) of NLRA prohibits employers from interfering with, restraining or prohibiting employees’ right to exercise Section 7 rights. These sections apply to both union and non-union employees of most employers.

25. Emerging Trends/Issues : (1). Overly broad employer social media policies that violate NLRA. (2). Termination/discipline based on social media use that violates NLRA. As of August, 2011, the NLRB has reviewed more than 129 cases that involve the use of social media in some way.

26. Overly Broad Policies : Prohibiting employees from posting pictures of themselves on the internet that depict the company in any way, including company uniform, corporate logo, or corporate name.

27. Overly Broad Policies : Prohibiting employees from making disparaging comments when discussing the company or supervisors, coworkers and/or competitors.

28. Overly Broad Policies : Subjecting employees to discipline for engaging in “inappropriate discussions” about employer, management or co-workers, without any limitations.

29. Overly Broad Policies : Prohibiting employees from using social media in any way that may violate, compromise, or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity.

30. Overly Broad Policies : Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of employer or any employee, officer, director or representative of employer.

31. Overly Broad Policies : Prohibiting statements on social media that lack truthfulness or that might damage the reputation or goodwill of employer, its staff or employees.

32. Overly Broad Policies : Prohibiting employees from talking about company business; posting anything they would not want their manager or supervisor to see or that would put their job in jeopardy; disclosing inappropriate or sensitive information about employer; or posting any pictures or comments about employer or employees that could be construed as “inappropriate.”

33. Overly Broad Policies : Prohibiting employees from using employer’s name, address or other information on their personal social media profiles.

34. These types of broad policies could all be interpreted or applied in such a way so as to prevent or foreclose employees from engaging in concerted, protected activities or collectively bargaining through social media.

36. True or False : An employer cannot fire/discipline an employee for social media use outside of the workplace.

37. NLRB has taken the position that under certain circumstances, employee interaction and communication via social media constitutes protected activity for which employees cannot be disciplined or fired. Did U C what Becky said about her boss on FB? She is so getting fired.

38. Crucial query of NLRB investigations / decisions : Did employee’s use of social media constitute “protected concerted activity” under NLRA?

39. NLRB found nonprofit organization’s firing 5 employees for engaging in a Facebook discussion about another employee’s failure to adequately help organization’s clients, was unlawful.

40. NLRB found ambulance company’s termination of employee who had posted negative remarks about her supervisor on employee’s personal Facebook page, which drew supportive comments from employee’s co-workers, was unlawful.

41. NLRB found car dealership violated NLRA when it fired salesperson for posting Facebook photos and comments criticizing the inexpensive food and drinks served by employer at a sales event – criticisms that had been discussed among the sales personnel in attendance.

42. NLRB found sports bar unlawfully fired 2 employees for participating in a Facebook discussion about employer’s tax withholding practices that had been started by a former employee. One of the employees who was fired by the bar had simply “Liked” the Facebook conversation.

43. When is it OK to fire / discipline employee for social media use? When is social media use not “protected concerted activity?”

44. NLRB found newspaper’s firing of reporter who had repeatedly posted inappropriate Tweets about homicides in the city and about a local TV station, despite being told by newspaper to stop, was lawful - none of the Tweets related to the terms or conditions of reporter’s employment.

45. NLRB found that restaurant was not prohibited from firing a bartender for unilaterally posting a Facebook comment about the low amount of money he was earning, along with an inappropriate comment disparaging the restaurant’s customers. Bartender posted that he hadn’t had a raise in 5 years and was doing waitresses’ work without tips. He also called the customers “rednecks” and that he wished they “choked on glass as they drove home drunk.”

46. NLRB found that nonprofit facility for the homeless was permitted to fire employee who worked with residents with mental health issues, because employee had engaged in Facebook conversation while on duty in which she made disparaging comments about some of the residents. Employee post : “My dear client ms 1 is cracking up at my post, I don’t know if shes laughing at me, with me or at her voices, not that it matters, good to laugh.”

47. Emphasis is on “concerted” activities. Expressions of individual gripes or offensive, inappropriate comments that are unconnected to collective activity, are not protected.

48. Public employers also need to be attentive to First Amendment rights. Employees cannot be disciplined for speech that involves matters of public concern.

49. Social media policies – get one! Think before you Tweet! Consult with legal counsel before firing/disciplining because of social media use. Use common sense (that goes for both employers and employees!)