2. Table of Contents
Contents
Executive Summary ........................................................................................................ 2
Ethical Impacts of Employment Terminations ......................................................... 4
Applied Ethical Perspectives and Theories ............................................................. 10
Current Laws and Governance ................................................................................... 17
Conclusions .................................................................................................................... 25
Works Cited..................................................................................................................... 29
3. Executive Summary
The overall goal of this paper is to report on the impact social media is having in
the workplace as it relates to employee terminations, discussing the challenges the
government and companies are facing with respect to employee work rights and privacy
issues. We review cases and their outcomes, offer analysis via applied ethics, discuss
methodologies and perspectives as well as current laws and governance, and then draw
some conclusions.
Due to fast-growing internet usage, millions of people around the world use social
media (like Facebook, MySpace, Twitter, Google+, etc.) by all race, age, sex, ethnicity,
and nationality to network online with friends, family, relatives, co-worker, and other
various groups.1
Social Networking Sites are increasing in popularity every day because
people value establishing relationships (i.e. for social, professional, and religious
purposes), sharing interests, beliefs, culture, and traditions. Most of the Social Media
networks offer free registration or membership which allows users to create an account
using only one-factor authentication (user name and password) after which the user
customizes their blog-like pages including their personal information like: full name, date
of birth, address, employer's name, education, activities and interests, gender, dating
preference, email, phone number, picture, etc. Most people find Social Media as a means
to freely express and share their opinions, thoughts, and lifestyle at any moment in time
because they can connect to their friends, family, relative, and other various groups
1
The Social Skinny. 100 More Social Media Statistics for 2012 http://thesocialskinny.com/100-more-
social-media-statistics-for-2012/ (accessed June 2012).
4. online on their cell phones, laptops and desktop computer. However, most Social Media
users do not consider the issue of securing their privacy, moral responsibility, and other
ethical impact that might originate from the use of Social Media.
Some Social Media users (employees) have been reprimanded or terminated from
their job because they’ve posted negative or insulting comments about their colleagues,
boss or employer. Many of the accused claimed ignorance of the social media network’s
security settings if their comments were not behind some authentication and wide open to
the public. Whether or not their comments were behind cyber lock and key or not, all of
the employees complained that their accusers were trespassing on their right to privacy or
right to freedoms outside the workplace. Do the accused have rights? Is there legislation
or governance that can protect them from what could be an unethical predicament? Does
the fact that their comments are behind a social media network user name and password
make a difference? What freedoms do employees have when they leave the workplace to
talk about their boss or employer? Where does that line cross? On company property
line? Today, in the modern workplace where supply is vastly greater than demand, most
employees are forced to sign an “At Will” employment-based contract. Not contest-
proof, in general this agreement gives the employer the right to terminate employment at
any time for any reason. And what about the employers? Do they have rights to protect
themselves from employees who defame their company brand and badger the company
online on blogs or social networks? As a result of these interesting issues, enormous
moral issues arise that have social, professional, and legal impact in our society.
5. Ethical Impacts of Employment Terminations
Employer-Employee Challenges. The national unemployment rate rose slightly in May,
to 8.2 percent, according to figures released by the Bureau of Labor Statistics.
Unemployment has hovered in the low 8 percent range for all of 2012. The number of
long-term unemployed, those jobless for 27 weeks or longer, rose to 5.4 million workers
and accounted for 42.8 percent of the unemployed.2
United States and the world
economies are very much challenged now. According to Stephany Elsworth, says "High
unemployment has forced many significant changes to the American lifestyle and has
altered the American public's expectations for the future". What kind of labor market
condition should we expect when more Americans and other countries citizens around the
world lost jobs because of social media activities? Is the action of employers firing
employees over social media activities justifiable? More people got fired from their jobs
for so many reasons which include but not limited to social media behavior. Even though,
some employers use social media as one of the metric to terminate or downside their
human resource. Does this positively or negatively contribute to national unemployment
rate? Shall we say employers now seek any reason to fire employees because national
economic challenge? Though, we all understand how tough for small, mid, and large
organization to survive in this economy that growing very slowly. “According to a 2009
study by Internet security firm Proofpoint, 8 percent of companies with over 1,000
employees have fired someone for their social media actions3
- a figure that is double
2
U.S. Dept. of Labor. Bureau of Labor Statistics, Economic News Release. June 2012.
http://www.bls.gov/news.release/empsit.nr0.htm (accessed June 2012).
3
Proffpoint reference here; Author, Title, Date, web site and date accessed.
http://www.abcd.com.home.html (accessed July 2012).
6. what was reported in 2008. Yet it probably comes as no surprise that Facebook firings are
on the rise. Cases of employers firing employees for social media slipups have been
consistent in the news over the past few years.” Is it ethical for an employee to make
negative comments on Social Media about their employer? Social Media has created a
gap in employee and employer relationship. In regard to employer, every employer will
like to protect their company interest in the public professionally and socially. Every
employee will like to exercise their freedom of speech in the United States which is
protected by the First Amendment to the United States Constitution and by many state
constitutions and state and federal laws. How can employees exercise their First
Amendment right without committing defamation toward their employers or co-workers?
How can employers enforce their ethical policies on social behavior without unjustly fire
their employees? There should be ethical metrics and limitation standard in place that
virtuously justify employees and employers relationship socially and professionally.
Cases.
Negative comment on Facebook got an employee fired. Tri-City Medical Center
Fired Employees - June, 2010. Tri-City Medical Center in Oceanside California fired
some employees for sharing patient information on
Facebook. “We recently identified an incident involving
hospital employees who used social media to post their personal discussions concerning
hospital patients,” said Tri-City Hospital CEO Larry Anderson in a prepared news release.
The allegations, that dozens of employees may have violated patient confidentiality by
posting information on the social networking site caught the attention of the state. The
California Department of Health launched an investigation. Five employees were fired
7. and one employee received a lesser form of disciplinary action. The hospital will re-
emphasize hospital policy on patient privacy through employee training, Anderson said.4
There is a professional assumption that people (i.e. patients) trust hospitals as a
place that they can go to for medical help and that their personal information will be
handled with care, securely and confidentially. Given that, would, i.e., the nursing staff
be happy and trust their workplace if they are patients of the hospital and their personal
information was shared in the public without their permission? If the employees had
signed an “Employed at Will” agreement, then the employer can terminate employment
at any time for any reason, however the employee may still be able to appeal to the
National Labor Relations Board (NLRB) or a local union if they are part of a union shop.
In the medical industry, privacy information is also protected under the Health Insurance
Portability and Accountability Act (HIPAA), which has very strict licensing laws
stressing patient information protection.
Brixx Restaurant – May 2010. In Charlotte NC, a 22-year-old waitress (Ashley
Johnson) is out of a job after griping on her Facebook page about the $5 tip she got from
a couple who sat at their table for three hours. The waitress
says the customers kept her at work an hour after she was
supposed to clock out. So she blasted the couple on Facebook,
calling them cheap and mentioning the restaurant by name.
Brixx Pizza officials told Johnson a couple of days later that she was being fired because
she violated a company policy banning workers from speaking disparagingly about
4
NBC San Diego Newstory reference here; Author, Title, Date, web site and date accessed.
http://www.nbcsandiego.com/news/health/Hospital-Fires-Emps-in-Facebook-Scandal-95794764.html
(accessed July 2012).
8. customers and casting the restaurant in a bad light on a social network. Johnson says she
has apologized to Brixx and is looking for a new job. Brixx's decision to fire Johnson
over the Facebook offense didn't seem to be winning them any fans. All of the comments
by users on the company's Facebook page are negative. As an employer, it is necessary to
enforce policies for the benefit of all our hardworking employees and valued customers.
Our policies ensure Brixx is an enjoyable place to both work AND dine.5
Is it fair for the employee to get fired for this one time company communications
violation after a long and successful career with the organization? She could have
garnered support from the NLRB if she could prove that she was complaining in the
interest of bettering the workplace environment.
English Teacher in Georgia – August 2009. The pictures were exactly what
you'd expect from a European summer vacation: Cafes in Italy and Spain, the Guinness
brewery in Ireland. So 24-year-old Ashley Payne, a public high school English teacher in
Georgia, was not prepared for what happened when her principal asked to see her in
August 2009. "He just asked me, 'Do you have a Facebook page?'" Payne said. "And you
know, I'm confused as to why I am being asked this, but I said, 'Yes.' And he said, 'Do
you have any pictures of yourself up there with alcohol?'" In fact, the picture that
concerned the principal - showing Payne holding a glass of wine and a mug of beer - was
on her Facebook page. There was also a reference to a local trivia contest with a profanity
in its title. Payne was told a parent of one of her students called to complain. And then,
Payne says, she was given a choice: resign or be suspended. She resigned. Attorney
Richard Storrs is fighting to get Payne's job back. But here's the really troubling part:
5
Brixx news story here; Author, Title, Date, web site and date accessed.
http://www.huffingtonpost.com/2010/05/17/brixx-pizza-fires-waitres_n_578847.html (accessed July 2012).
9. Payne had used the privacy settings incorrectly on Facebook. She thought that only her
closest friends could see her vacation photos or her use of the "B" word. What Ashley
Payne or anyone of us who uses the Internet has to realize is this: Today our private lives
are no longer so private. "When we talk about a right to privacy, what we are really
talking about is the right to control information we consider to be private," said Frederick
Lane, an attorney and author of "American Privacy."6
This scenario is a typical example
of how open our private lives are on the internet and how the responsibility of privacy is
falling on our shoulders to understand the limited rights that we have online and how to
secure our information. Issues like this will lead to a lot case law possibly, to be sorted
out in court as to whether or not it was fair the employer fired her.
NFL Eagles' worker Fired for Facebook Update - March 9, 2009. A Facebook
post criticizing his employer, the Philadelphia Eagles, cost a stadium operations worker
his job, according to a story in Monday's Philadelphia Inquirer. Dan Leone, a previous
West Gate Chief of Philadelphia Eagles, was unhappy about how the Eagles team let
Brian Patrick Dawkins (a former American football safety) signed with the Denver
Broncos in free agency. According to the newspaper, Leone posted the following on his
Facebook page: "Dan is [expletive] devastated about Dawkins signing with Denver ...
Dam Eagles R Retarted!!" Days later, despite Leone deleted his comment on his
Facebook; he was fired on the phone. Leone said, according to the Inquirer. "I was ticked
off, and I let my emotions go, but I didn't offend any one person or target a specific
individual. I was just upset that we lost such a great guy. Dawkins was one of my favorite
players. I made a mistake." Leone said he was shocked to lose his job of six years. "I
6
English teacher story here; Author, Title, Date, web site and date accessed.
http://www.cbsnews.com/2100-3445_162-7323148.html (accessed July 2012).
10. apologized for it," Leone said, according to the paper. "I apologized 20 million times. I
never bad-mouthed the organization before. I made one mistake and they terminate me?
And they couldn't even bring me into the office to talk to me? They had to do it over the
phone? At least look me in the eye to get done dirty like this, I can't believe it. I'm
devastated."7
Many employees, when hired, must sign an “Employed At Will” clause
meaning the company can terminate employment for any reason at any time. Does this
employee have any recourse to save his job? This perhaps doesn’t seem ethical for the
organization to do this after this one time case. When can an employee share his/her
personal opinion about the employer without the threat of being terminated? Again, these
issues will probably have to be sorted out through case law and in the courts to debate
and arbitrate.
Virgin Atlantic Sacks 13 Staff - November 2008. Virgin Atlantic fired 13
members of its cabin crew after breaking staff policies due to totally inappropriate
behavior on a social networking for criticizing the airline's
flight safety standards and describing its passengers as "chavs".
According to Sir Richard Branson's company said their
behavior was "totally inappropriate" and had "brought the company into disrepute".
"Following a thorough investigation, it was found that all 13 staff participated in a
discussion on the networking site Facebook.8
The National Labor Relations Board
7
ESPN. Facebook Post Gets Employee Fired. March 2009.
http://sports.espn.go.com/nfl/news/story?id=3965039 (accessed June 2012).
8
The Independent. Virgin Atlantic sacks 13 staff for calling its flyers ‘chavs’. November 2008.
http://www.independent.co.uk/news/uk/home-news/virgin-atlantic-sacks-13-staff-for-calling-its-flyers-
chavs-982192.html (accessed June 2012).
11. (NLRB) may be able to help the 13 terminated employees by proving that their overall
motivation was for the betterment of the airline or passengers?
Applied Ethical Perspectives and Theories
Applying Professional Ethics. Social Media Impact as a field of Professional
Ethics “…can best understood as identifying and analyzing issues of ethical
responsibility” for professionals (or employees) using Information Technology in issue(s)
related to their employment. Don Gotterbarn (1995) suggests that the principal focus of
computer ethics should be on issues of professional responsibility and not on the broader
moral and social implications of that technology. According to Gotterbarn, he argued that
certain technologies (like Facebook, Twitter, MySpace, etc.) have profoundly altered our
lives in which many of us conduct our daily affairs. Don Gotterbarn (1995) and Elizabeth
Buchanan (2004) suggest that ethical issues shall not limit to computer professionals or
“informational professional” alone but to other professions (i.e. “non-information
professionals”).9
It is cogent to identify and analyze Social Media impact on employment
by examine professional and moral responsibility, code of conduct, legal liability, and
accountability.
Let’s examine the incident with Tri-City Medical Center in Oceanside California
where a dozen of Registered Nurses were fired for sharing patient information on
Facebook. This incident can be analyzed from professional ethic perspective. The
American Nurses Association (ANA) has a professional ethical code nurses called “Code
of Ethics for Nurses” which “… was developed as a guide for carrying out nursing
9
Gotterbarn reference here; Author, Title, Date, web site and date accessed.
http://www.cbsnews.com/2100-3445_162-7323148.html (accessed July 2012).
12. responsibilities in a manner consistent with quality in nursing care and the ethical
obligations of the profession”. American Nurses Association suggests that nurses are
expected to maintain professional responsibility and confidentiality of their patients. The
Tri-City nurses violated American Nurses Association Code of Ethics for Nurse” and also
broke “Tri-City Medical Center's Medical Information Privacy Policy” by socializing on
Facebook with patient personal data. I think it was inappropriate for those nurses to
discuss private information of patients on social media for whatever reason it could be
because inappropriate disclosure of patient’s information could jeopardized the
fundamental trust between patients, nurses, and the hospital. Should those nurses be
forgiving for their action maybe they don’t intentionally do what they did? Who should
be responsible and be accountable for the nurses’ negligence if the patient finds out that
hospital nurses violated privacy policy and sue the hospital? I think these are the
questions the management of Tri-City thought about before the decided to fire those
employees.
Consequence-Based Ethical Theories: Utilitarian. According to the utilitarian
theory, “An individual act (X) or a social policy (Y) is morally permissible if the
consequences that result from (X) or (Y) produce the greatest amount of good for the
greatest number of persons affected by the act or policy”. The American Nurses
Association Code (ANA) of Ethics for Nurse and Tri-City Medical Center's Medical
Information Privacy Policy are moral value policies established for medical professionals
to responsibly conduct their actions that “…produce the greatest amount of good for the
greatest number” of patients affected by the policies in the hospitals. The consequences
of ANA Ethics for Nurse and Tri-City Privacy Policy violated by a dozen of Tri-City
13. employees created to protect the privacy interest of millions patients is as majority but
un-favor to Tri-City employees whose got fired from their job due to their unethical
discussion on Facebook. However, Facebook or other social media usage provides
usefulness and happiness to the majority (millions of users). Since million users of
Facebook or other social media users are happy socializing online, is it ethical or morally
safe for hospital employees to discuss personal information of their patients on
Facebook? How would Tri-City employees feel toward the hospital or their employees if
they are the patients been talk about on the Facebook? Policy is ethical guide that needs
to be study, follow, and live by professional where their duties affect general public to
maintain consistency quality service.
Duty-Based Ethical Theories: Deontology. Immanuel Kant (1724 – 1804)
argued that morality must ultimately be grounded in the concept of duty and that morality
has nothing to do with the promotion of happiness which rejects utilitarianism theory.
Kant argued that performance of duties may result to either happiness or unhappiness
consequence. The American Nursing Association Policy, California Department of
Health policy, and Tri-City Medical Center's Medical Information Privacy Policy require
all nurses to protect patient confidentiality as part of their duties and responsibilities to
the patients. I think going to Facebook to mingle by posting patient confidential
information violated not only Tri-City Medical Center policy but caught the attention of
the California State which investigated the incident as well. Let examine how Tri-City
employees that was fired think their job are. Maybe the Tri-City employees think they
can ease off from the stress from their jobs by sharing how was their day was. Maybe
14. those employees didn’t have opportunity of time to chat with their friends, relative or
family once they get off work and they see Facebook as good technology to help them
cover those gaps of socializing with friends, relative or family. Also, maybe those
employees who got fired forgot about the policies and duty of keeping patient
information confidential at all time and got caught on social media. What if those
employees didn’t get caught and other Facebook users found that information that might
be useful for fraudulent act.
Contract-based Theories: Rights. Hobbes (1588 – 1679) argued that contract-
based ethical theory is an original “premoral” because there were no moral (or legal) in
existence. There was a contractual agreement between Tri-City Medical Center and it
employees to conduct their duties in ethical manner according to Tri-City policies agreed
and signed by Tri-City employees. Philosophers like Thomas Aquinas, Thomas Jefferson,
etc. declared that all humans are entitled to freedom of life, liberty, speech, etc. First
Amendment law is grounded law of human natural right in the United States.
A case of Ashley Johnson, a waitress at Broxx Restaurant blasted a couple on Facebook,
calling them cheap and mentioning the restaurant by name. Ashley exercised her first
amendment right that emphasis freedom of speech but she violated reputation of Broxx
Restaurant she represented as an employee. For the fact that Ashley has freedom of
speech, can she misrepresent and post negative comment about customers of company
she worked for? Tips supposed to be a given by choice not compulsory given to the
person been of service to you. We think every customer can't give the same tips. We
15. think Ashley Johnson theoretical to be aware of this instead of expressing her feeling in
words that included her company name.
A case of Ashley Payne, an English Teacher in Georgia who got fired for
enjoying herself on her European summer vacation by doing exactly what were expected
from Cafes in Italy and Spain, the Guinness brewery in Ireland. This was a way she
pursuit her happiness. Why she was fired because of some pictures find on Facebook
despite of privacy setting she has on Facebook? We think Ashley Payne employment
termination wasn’t reasonable 100%. We examine this case from the viewpoint of parent
accidently find their child’s teacher pictures drinking on social media. Should the parent
complaint about the action of Payne for doing what adult supposed to do on vacation?
This was her private life which is separated distinctly from professional life.
Character-Based Ethical Theories: Virtue. Philosophers like Plato and
Aristotle argued that this theory should focus on character development of individuals
and their acquisition of good character traits from the kinds of habits they develop.
Specifically, Aristotle believed ethics should not merely be study but something to live or
practiced i.e. through the proper training, acquisition of good habits, and character traits.
NFL Eagles' worker and 13 Virgin Atlantic staff scenarios can be observe using
Character-based. Those individuals Dan Leone and 13 Virgin Atlantic staff should have
try to practice or live ethics using self-control and wisdom to express their emotional
thought in formal or professional way that be reasonable to their employers instead using
Facebook. We want to believe that NFL Eagles club and Virgin Atlantic have some
training program that properly trains their employees’ good habits or virtue that can help
16. them make good decision to choice right communication tool to professional express
their how they feel or thought on any activities around their working environment.
What We Should Never Post on Facebook 1. Your Birth Date and Place: you
should think twice before posting your full birthday. Beth Givens, executive director of
the Privacy Rights Clearinghouse advises that revealing your exact birthday and your
place of birth is like handing over your financial security to thieves. Furthermore,
Carnegie Mellon researchers recently discovered that they could reconstruct social
security numbers using an individual's birthday and place of birth. Rather than remove
your birthday entirely, you could enter a date that's just a few days off from your real
birthday. 2. Your Mother's Maiden Name - "Your mother’s maiden name is an especially
valuable bit of information, not least since it’s often the answer to security questions on
many sites," writes the New York Times. Credit card companies, your wireless service
provider, and numerous other firms frequently rely on this tidbit to protect your personal
information. 3.Your Home Address Publicizing your home address enables everyone and
anyone with whom you've shared that information to see where you live, from exes to
employers. Opening up in this way could have negative repercussions: for example, there
have been instances in which burglars have used Facebook to target users who said they
were not at home. 4. Your Long Trip Away from Home - Don't post status updates that
mention when you will be away from home, advises New York Times columnist Ron
Lieber. When you broadcast your vacation dates, you might be telling untrustworthy
Facebook "friends" that your house is empty and unwatched. "[R]emind 'friends' that you
have an alarm or a guard dog," Lieber writes. 5. Your Short Trips Away From Home
17. Although new features like Facebook Places encourage you to check in during outings
and broadcast your location (be it at a restaurant, park, or store), you might think twice
even before sharing information about shorter departures from your home. "Don’t post
messages such as 'out for a run' or 'at the mall shopping for my sweetie,'" Identity Theft
911 cautions. "Thieves could use that information to physically break in your house."
6. Your Vacation Countdown - CBSMoneyWatch.com warns social network users that
counting down the days to a vacation can be as negligent as stating how many days the
vacation will last. "There may be a better way to say 'Rob me, please' than posting
something along the lines of: 'Count-down to Maui! Two days and Ritz Carlton, here we
come!' on [a social networking site]. But it's hard to think of one. Post the photos on
Facebook when you return, if you like. But don't invite criminals in by telling them
specifically when you'll be gone," MoneyWatch writes. 7. Your Child's Name
Identity thieves also target children. "Don't use a child's name in photo tags or captions,"
writes Consumer Reports. "If someone else does, delete it by clicking on Remove Tag. If
your child isn't on Facebook and someone includes his or her name in a caption, ask that
person to remove the name." 8. Your 'Risky' Behavior- There have been additional
reports that insurance companies may adjust users' premiums based what they post to
Facebook. Given that criminals are turning to high-tech tools like Google Street View
and Facebook to target victims, "I wouldn't be surprised if, as social media grow in
popularity and more location-based applications come to fore, insurance providers
consider these in their pricing of an individual's risk," says Darren Black, head of home
insurance for Confused.com. 9. The Layout of Your Home - Identity Theft 911 reminds
Facebook users never to post photos that reveal the layout of an apartment or home and
18. the valuables therein. 10.Your Profile On Public Search - Do you want your Facebook
profile--even bare-bones information like your gender, name, and profile picture--
appearing in a Google search? If not, you should block your profile from appearing in
search engine results. Consumer Reports advises that doing so will "help prevent
strangers from accessing your page." To change this privacy setting, go to Privacy
Settings under Account, then Sharing on Facebook. 11. How To Remove Yourself From
Facebook Ads.
Current Laws and Governance
Employment and Privacy Laws.
The Fair Credit Reporting Act & Social Media: What Businesses Should Know.
You finally have your short list of candidates for hire and now you’re ready for
background checks. Credit reports, criminal records, and employment and salary history
can all be included when employers prepare background checks on prospective new hires.
And now, social media can be included as well. But the rules are the same regardless of
the type of information that’s in a report being used to make hiring decisions.10
Employers using reports and companies providing reports to employers must comply
with the Fair Credit Reporting Act (FCRA). In one particular case, the FTC looked into a
company that was selling background check reports that included social media
information to see if they were complying with the FCRA. These companies, in
examples like this, must take appropriate steps to ensure the highest possible accuracy of
10
Lesley Fair, FTC Blog. The Fair Credit Repoting Act & Social Media.
http://business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know
(accessed July 2012).
19. what’s reported from social media networks and that the information relates to the correct
person. These companies also have to provide copies of reports to persons being
referenced and have a system in place to handle disputes in case the person being
referenced needs to challenge the validity of the information. The reporting firms
working with corporations to provide this service have to also provide materials to the
employees using the reports to make them aware of the FCRA guidelines and how to
handle the information. Lastly, employers must ensure that the reports won’t be used in a
manner that would violate federal or state equal employment opportunity laws or
regulations. Both parties also have a legal obligation to keep the information in the
reports secure and dispose of the reports properly.
Privacy and Security Responsibilities, Bureau of Consumer Protection Business
Center, Federal Trade Commission. We learned of this blog site and associate
governance reference pages at the FTC from interviewing Hillary Sloane Gebler,
Attorney Advisor, Office of Administrative Law Judges, Federal Trade Commission.
“Our office performs initial adjudicative fact-finding in Commission administrative
complaint proceedings. We’re independent decision makers and appointed by the Office
of Personnel Management. We’re guided by FTC Acts and statutes and the FTC Rules of
Practice. When I’m assigned to handle a complaint issued by the Commission, I hold
pre-hearing conferences, resolve disputes made in discovery and other disputes and
conduct the full adversarial evidentiary hearing on the record. The administrative law
judge issues an initial decision which sets the findings of fact with records, explains the
20. correct legality, applies the law to the facts, and when necessary, issues an order on the
remedy”.11
Equal Employment Opportunity Act and Whistleblower Rights. The Equal
Opportunity in employment laws were established as part of the landmark Civil Rights
Act of 1964 whereas a portion of the ACT was dedicated to fairness in employment and
broadened to apply to the individual level that which was previously restricted to the state
level. The Equal Employment Opportunity Commission (EEOC) was also established at
this time of ratification. EEOC policies include firing and employee protections from
acts of discrimination in the workplace on the basis of race, religion, color, sex or
national origin.12
Complaints can be files and the EEOC will determine if the case
warrants pursuit and resolvement. Strict time limits are in play for filing discrimination
charges so one should contact EEOC promptly to preserve the ability for EEOC to act on
your behalf and protect your right to file a private lawsuit. Remedies can include
reinstatement or compensatory and punitive damages or liquidated damages. The
employer will also be required to stop the said discriminatory practices and take steps to
prevent them in the future.
Whistleblower status is a person who reports to an authority about an alleged
dishonest or illegal activity. These are typically classified as a law, rule, regulation
violation or a direct threat to public interest. Allegations can be made internally with
your colleagues or management or external with the media and are motivated promises of
rewards like percentage of money recovered or damages won for example in the 186-
11
Interview: Hillary Sloane Gebler, Attorney Advisor, Office of Administrative Law Judges, Federal
Trade Commission. Interviewed June 13th
, 2012).
12
Equal Employment Opportunity Commission (EEOC). http://www.eeoc.gov/ (accessed July 2012)
21. revised False Claims Act. Another national law protecting Whistleblowers is the Lloyd-
LaFollette Act of 1912 and the US Clean Water Act of 1972. In general, Whistleblowers
are motivated and protected in a patchwork of local state and federal laws. Over 50
countries have adopted such protections and part of their anti-corruption campaigns for
example. Various states in the union have their own Whistleblower protection Acts as
well.
National Labor Relations Board (NLRB). The NLRB is an independent agency
of the federal government that runs elections and holds offices for labor union
representation as well as investigating unfair labor practices.13
The board encourages
collective bargaining and to stop private sector labor and management practices which
they deem harmful to the welfare of workers, businesses and the U.S. economy.
Stored Communications Act of 1986. This is a law having to do with the
disclosure of ‘stored wire and electronic communications and transactional records’ held
by a third party ISP. It was enacted in 1986 and helps to cover the gap left by the Fourth
Amendment that protects our right against unreasonable search and seizure but in this
case, “protection” isn’t considering online or digital assets.14
Social Networking Online Protection Act (SNOPA), Introduced April 2012.
SNOPA was introduced a few months ago by U.S. Representative Eliot Engel (D-NY)
and Representative Jan Schakowsky (D-ILL). If passed, the Act could prevent an
employer or potential employer from being able to ask an employee or new hire
candidate for their user name and password to social media network sites. The Senators
13
National Labor Relations Board (NLRB). https://nlrb.gov/ (accessed July 2012)
14
Internet Law Treaties. Privacy: Stored Communications Act.
http://ilt.eff.org/index.php/Privacy:_Stored_Communications_Act (accessed July 2012)
22. have asked the Justice Department to inquire as to whether such practice violates two
existing Acts, the Stored Communications Act or the Computer Fraud and Abuse Act.
Maryland has already passed a similar bill that awaits their governor’s signature to make
it a law. Similar bills have been introduced in California and Illinois.15
Computer Fraud and Abuse Act. Passed in 1986 and amended many times,
particularly by the USA Patriot Act of 2002 and in 2008 by the Identity Theft
Enforcement and Restitution Act. The Act can punish anyone who’s attempted to
commit an offense or conspiring to do so in regards to breaching a computer and or the
materials on it as a personal asset. The crimes focused on are of federal or financial
institution in nature and interstate.
Pablo Molina Interview. On June 8th
we had the pleasure of interviewing Mr.
Pablo G. Molina in his Georgetown Law School offices. Professor Molina is currently
the Executive Director at the International Applied Ethics and Technology Association
and Adjunct Professor at Georgetown University. Pablo reviewed with us some
interesting research prospects for social media in the workforce but he also stressed to
investigate what’s happening, at least briefly, on an international basis and so the next
section is dedicated to Pablo for his dedicated professionalism, subject matter expertise
and friendship.16
International – Fair Work Australia – Fair Work Australia (FWA) is the
Industrial Relations Institution operation formed in Australia in 2009 to dispute unfair job
terminations in addition to setting of the minimum wage and approval of enterprise
15
Interview with Attorney Levi McAllister, Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue,
NW, Washington, DC 20004 (202) 739.3000 (interviewed July 14 2012)
16
Interview with Mr. Pablo G. Molina, Exec. Dir at the International Applied Ethics and Technology
Association. (interviewed June 8th
, 2012)
23. agreements. The case of Stutsel versus Linfox Australia Pty Limited exposes the need
for social media policies in large organizations.17
Stutsel the employee said disparaging things against his company on facebook
and was terminated for breach employment contract promises like acting with good faith,
respecting the trust and confidence, not taking action to damage the employer and
promote the employer’s business interests. He filed for arbitration support from the FWA
claiming his wife and daughter set up the account and said the security was configured
and that he had no idea the content was open to the internet. The commission eventually
ruled in favor of Sutsel, referencing that his employer did not have a social media policy
in place at the time of the termination and even at the court proceedings to the end, had
still not had a social media policy in place. Most of these cases being referenced are a
good reminder that all employers need to put a social media policy in place as it’s a
unique issue to deal with and will not necessarily be covered by existing laws or policies
in place for the employer.
Germany puts restrictions on Use of Social Media in HR. Starting with a bill
approved in August of 2010 by Germany’s cabinet, the new law restricts employer from
using social media networks in the recruiting process. Social media content that is not
freely available and open online is not permissible for use in the hiring process in
Germany.18
Deemed as part of “social media 1.0”, the bill was pushed hard to handle the
17
Dundas Lawyers. Social Media Policies are a necessity for Large Companies – Fair Work Australia
http://www.dundaslawyers.com.au/no-social-media-policy-insufficient-says-fair-work-australia/ (accessed
July 2012)
18
Workplace Privacy Counsel. As Germany Considers Restrictions on Use of Social Media.
http://privacyblog.littler.com/2010/09/articles/social-networking-1/as-germany-considers-restrictions-on-
use-of-social-media-for-recruiting-multinational-employers-need-to-start-thinking-about-social-media-
policy-20/ (accessed July 2012)
24. US employee hiring and now “social media 2.0” is being considered for wider use
throughout the EU.
Health Insurance Portability and Accountability Act (HIPAA). HIPAA, enacted
in 1996, protects the privacy of individually identifiable health information, the HIPAA
security rule and sets national standards for the security of electronically protected health
information as well as the confidentiality of individual health information.19
Re-shaping HR.
Talent Management Strategy requires that HR department start tapping into social
Media. Taking into consideration that the generation entering workforce grew up with the
internet and social media; employment code of conduct ends to evolve with times as well.
Social media provides significant rewards for companies that have built a formalized a
good strategy of tapping into these social media rewards; however, social media presents
a host of risks that companies need to be aware of and address these risks through their
employment code of conduct. The media is replete with stories about employers who
have fired employees for comments made on social media sites but this has been
countered by a number of employees fighting back alleging wrongful termination. “A
study by a law firm DLA Piper found that a third of employers have had to discipline a
worker for writing something inappropriate about their company on a social networking
site such as Facebook or Twitter”. 20
“A similar research also found that 21% companies
have had to give employees a warning for posting something inappropriate about work
19
U.S. Department of Health & Human Services. Health Information Privacy.
http://www.hhs.gov/ocr/privacy/ (accessed July 2012)
20
Third of employers have disciplined workers over social media updates.
25. colleagues”. 21
Despite all these cases involving social media employee discipline the
same study reported that only a quarter of companies have a stand-alone dedicated social
media policy and less than half have a s social media policy which complement the
traditional HR standing code of conduct. Some employers do not have restrictive
covenants in senior employees’ contracts governing the post termination use of business
contacts on social media sites.
In implementing social media policy companies are starting to establish social
media teams within their HR departments just like they have payroll and Benefits
Administration teams. The purpose of the social media team is to keep their eyes and
ears on the way employees are talking about the company online using social media
monitoring software and ensure someone is responsible for occasionally auditing the
way company is listed on employee social network accounts. Social media policy once
written and adopted, everyone across the company is liberated to stop worrying about
accidentally embarrassing the company. Companies have now started setting a budget for
how they deal with social media through training employees and managing PR and image.
If you don’t have a social media policy, you are exposing your organization to tragic
publicity. If you have a social media policy you are in a good position to tap into
opportunities for employees to strengthen customer relationships, draw awareness to your
business services and products, and great opportunity to build good public relations.
Employers need to support and empower employees by arming them with the information
they need to successfully and appropriately engage on social media forums. Having
specific rules and guidelines means employees can be confident about engaging without
26. being afraid of damaging your brand so companies Human Resources departments will
need to evolve with changing times on social media use.
Social Media’s Future Use in HR.
Since social media is becoming a source of business for companies; it is
inevitable that every business would need to embrace the emergence of social media. In
as much as it may be a source of trouble for some brands, social media is becoming the
undisputable number one source of business for marketing departments; Marketing
executives and legal departments will have to team up with human resources executives
to build a business case for Human Resources funding on implementing social media
conscious employment policies and training the workforce to be ethically social media
savvy. Human capital management analytics from companies like Salesforce and Oracle
will need to adapt and interface with social media for social media usage analytics and
how its use by employees contributes to Revenue and image building.
Conclusions
Productivity and Professional Responsibility.
The world is waking up to the fact that social media passwords are a gate to many
roads containing personal or sensitive information, similar to email and bank accounts.
These lines must be understood as similar and drawn to protect the privacy of individuals.
We have a professional, ethical and legal responsibility to update organization’s
workplace policies as well as the current Acts and Governance body laws that protect
individual’s privacy or write new ones. No one would want to go into a public place and
give out their username and password to total strangers. When employers invade the
27. privacy of an individual in the social media world, they are also invading the privacy of
their friends or member connections. Further, it’s also dangerous to a hiring manager to
potentially put him in contact with information that would normally be off-limits in the
hiring process such as ethnicity, nationality, sexuality, religion and pre-existing medical
conditions.
22
In general “social media sites are perceived as a distraction in workplace, an
interference with employee productivity, internal workforce culture and security”. As
employers are starting to understand opportunities presented by the emergence of social
media, many employers are starting to review and revise their social media policies to
balance between the distractions posed by the social media to productivity to the business
opportunities presented by social media. The main concern was business reputation but
along that risk comes the opportunity for revenue growth through tapping into new
markets. The pervasiveness of technology has forced employers to come face to face with
the reality that social media is here to deliver business benefits more than worry about
employee productivity. Many employers are findings ways to revise policies and train
employees on the positive use of social media.
Other business segments have implemented some code of conduct targeted at
controlling how their workforces express their frustrations about their work environment
unanimously similar to the old “Suggestion Box” style. Some employers use periodical
survey that they send to employees and have them unanimously submit their opinions.
They are other organizations that are a little complicated in the way run business for
employees to register their concerns about work environment; most of the obvious ones
22
Third of employers have disciplined workers over social media updates.
28. are the entertainment industry like sports (e.g. NBA, MLB, NFL, and media workforce).
The NBA has lately been actively fining athletes for complaining through twitter about
officiating and for making insensitive comments that are deemed controversial; a good
recent example would be that of Amare’ Stoudemire of the New York Knicks who made
some bad taste comments to a fan on twitter and he was fined $50000.00 by the NBA.
23
“Stoudemire apologized Sunday to a fan for using the slur in response to a crude tweet
in which the fan admonished the All-Star to "make up for this past season."”. The
justification for this kind of fining by the Board is that young people look up to these
athletes and if they misbehave then they are sending wrong messages to the youth. They
are held to be great models for the youth so the professional is held in good standing by
the society on moral standards.
Analytical Review and Logical Arguments. 8 percent of companies with over 1,000
employees have laid off someone for their social media actions. Facebook firings are on
the rise. Social Media contribute to the national unemployment rate that rose slightly in
June, to 8.2 percent. High unemployment has forced many significant changes to the
American lifestyle. National Social Medial law shall be made to regulate employment
and social media ethical concerns to alleviate social media negative impact on the
national employment rate. A person's right to freedom of speech to comment, to express
emotion and thought is protected by the First Amendment of the U.S. Constitution.
23
Ganderson, LZ. ESPN. June 26, 2012. http://espn.go.com/new-york/nba/story/_/id/8098750/nba-fines-new-
york-knicks-amare-stoudemire-50k-slur-twitter (accessed July 7, 2012).
Macleod, Ishbel. The Drum. Edited by Ishbel Macleod. October 14, 2011.
http://www.thedrum.co.uk/news/2011/10/14/third-employers-have-disciplined-workers-over-social-media-
updates (accessed July 7, 2012).
29. Defamation (for slander or libel) is a statement that makes a claim (or comment) implied
to be factual, that may give an individual, business, product, group, government, or
nation a negative image. Employees got fired for negative comments (i.e. like Tri-City
Medical Center Employees, etc.). Some employers created social media policy that
protects the organization, customers, and employee interests. Employees are fired for
conflict of interest and violation of company policy on social media. There is limitation
to freedom of speech if employees constitute a defamation that can be proof with
evidence in the court of law.
Predictions. For employers or large organizations, to protect themselves from
defamation of character and other employee comment content that’s out of the office, off
premise, they need to see new policy as not a luxury to have but as a dire necessity. The
current flurry of case law should be a wakeup call for organizations to put in place good
solid policies covering social media network content. As for individuals or employees,
hopefully the explosion of social media case law issues will spawn new updates to
governance, laws or Acts and consolidation or the introduction of new ones that
specifically address social media, privacy and the workplace like SNOPA. For the many
shades of gray that currently exist related to “how disparaging” was the employee being
and “was it in the context of trying to improve the workplace”, etc., most of these will
wane as social media’s reach and acceptance matures.
30. Works Cited
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Interview with Attorney Levi McAllister, Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, NW,
Washington, DC 20004 (202) 739.3000 (interviewed July 14 2012)
Interview with Mr. Pablo G. Molina, Exec. Dir at the International Applied Ethics and Technology
Association. (interviewed June 8th
, 2012)
Dundas Lawyers. Social Media Policies are a necessity for Large Companies – Fair Work Australia
http://www.dundaslawyers.com.au/no-social-media-policy-insufficient-says-fair-work-australia/ (accessed
July 2012)
Workplace Privacy Counsel. As Germany Considers Restrictions on Use of Social Media.
http://privacyblog.littler.com/2010/09/articles/social-networking-1/as-germany-considers-restrictions-on-
use-of-social-media-for-recruiting-multinational-employers-need-to-start-thinking-about-social-media-
policy-20/ (accessed July 2012)
U.S. Department of Health & Human Services. Health Information Privacy.
http://www.hhs.gov/ocr/privacy/ (accessed July 2012)
Third of employers have disciplined workers over social media updates.
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