Social media carrie cherveny-revised

Social Media Meets Employment Law Presented By: Carrie Cherveny, Esq.

What We Will Cover? What is social media? Legal issues faced by employers Discrimination Privacy Negligent hiring/recommendation Breach of confidentiality Defamation/Libel/Slander NLRB and FLSA Deceptive and unfair practices Insider Trading liabilities Sarbanes Oxley Social Media Amendment Protecting yourself from these issues

The Massive Scope of Social Media

Continued Growth of Social Media Facebook for professionals Over 101 million users worldwide More than 750 million active users 50% of active users log on to Facebook in any given day Average user has 130 friends People spend over 700 billion minutes per month on Facebook

is Contagious “ Tweets” – max. of 140 characters One billion tweets every week average number of tweets per day has nearly tripled from 50 million to 140 million. On the day of the Japan earthquake and tsunami, Twitter users exceeded the average daily tweets by 37 million--that's 177 million tweets in a single day. 572,000 new accounts were created on March 12. Twitter has also marked a 182% increase in the number of users tweeting from mobile devices in the past year. Twitter's initial team consisted of eight members. On March 14, 2011 the staff numbered exactly 400.

Not Much to Cheer About Caitlin Davis, an 18-year-old cheerleader with the New England Patriots, was fired over photos she posted to Facebook. The pictures showed Davis and an unidentified friend leaning over a passed-out boy whose entire face and body was covered in distasteful graffiti. "Penis," (accompanied by said phallic symbols) 'I'm a Jew' and a couple swastikas are only some of the things drawn all over the unfortunate unconscious friend. She had been the youngest cheerleader ever to make an NFL squad.

Facebook Warns Users: Summer 2010: A Pittsburgh Pirates' mascot was fired after criticizing on his Facebook page the team's choice to extend the contracts of two of its managers. Summer 2010: Five California nurses were terminated after they discussed patient cases on the site. The situation was investigated for weeks by both the nurses' employer and the California Department of Health before the nurses were fired for allegedly violating privacy laws. Spring 2010: A North Carolina waitress was fired from her job at a pizza parlor after posting a negative comment on Facebook about two of her customers. She said they were “cheap” for leaving such a small tip. She didn’t name the customers, but she did give the name of the place where she worked. A few days later, management told her she was fired for violating the restaurant's social media policy. Winter 2010: A South Carolina firefighter/paramedic created a three-minute, animated video that showed a cartoon doctor and paramedic responding to an emergency in a hospital and posting it on Facebook. His department didn't find the video funny and said the video was embarrassing. He was fired.

Facebook Warns Users: Fall 2009: A Georgia high school teacher was forced to resign for posting pictures of herself sipping beer and wine on her Facebook page. The pictures were taken at the Guinness Brewery in Ireland during her summer vacation. She sued the school district last November. The case is expected to go to trial this fall. Winter 2009: A United Kingdom teen was fired for calling her job "boring." According to a local newspaper, she posted comments such as, "First day at work. So dull!!" and "All I do is shred, hole punch and scan paper!!!" She was let go after her boss discovered the comments. Facebook Warns: “ Inappropriate Facebook postings are fair grounds for termination at many companies. With that in mind, post at your own risk!”

Weinergate: An Employer PR Nightmare!

Weinergate Weiner claims he did not use Congressional resources Pictures surfaced of him almost naked in the Congressional gym Weiner later confessed to posts after one of the women provided photos, emails, Facebook messages and phone call logs of her electronic relationship with Weiner Call for ethics committee investigation 20 days later Weiner resigned his position Career spanned more than 10 years

Weinergate Employer’s need social media policy to address employee misuse of company-issued technology, resources, and workspace Employers should be prepared for crisis and launch immediate investigations House Code of Conduct falls short: “ A Member, Delegate, Resident Commissioner, officer, or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House. ”

Aircraft Commander Airs Explicit Videos Capt. Owen Honors was relieved of duty as commander of the aircraft carrier USS Enterprise after he broadcast sexually charged videos taken aboard the ship, the Navy announced. Adm. John C. Harvey Jr., commander of United States Fleet Forces Command, stated: "His profound lack of good judgment and professionalism while previously serving as executive officer on Enterprise calls into question his character and completely undermines his credibility to continue to serve effectively in command.”

L.A. Traffic Officer Fired Over Porn Video A 23-year veteran Los Angeles traffic officer has been fired for appearing in a pornographic online video while on duty and in uniform engaged in misconduct on the job and in uniform participated in "indecent acts" that reflected unfavorably on the city workforce, groping the bare breasts spanking the bare buttocks and being straddled by an adult video actress in public

L.A. Traffic Officer Fired Over Porn Video filed an appeal challenging his discharge request was considered on July 28 by the city's Civil Service Commission No word yet

140 Characters of Bad Judgment Chrysler Group LLC is ending its relationship with the social media agency that was behind an obscene tweet that was posted to the Chrysler brand's official Twitter account. "I find it ironic that Detroit is known as the (hash) motorcity and yet no one here knows how to (f******) drive." Shortly after, the tweet was removed from Chrysler's Twitter feed. New Media Strategies CEO Pete Snyder said his firm regretted the "unfortunate incident." "It certainly doesn't accurately reflect the overall high-quality work we have produced for Chrysler," Snyder said in a statement. "We respect their decision and will work with them to ensure an effective transition of this business going forward."

Employers Should be Alert Copyright violations Trade Secrets revealed Insider Trading Implications Disclosure of confidential information Trademarks Brand Tainting Defamation

Protect Yourself from Potential Risks Wrongful Recommendation: Implement policy allowing only dates of employment, position and compensation be disclosed Specifically address appropriate info for social media “reference” in policy Prohibit social media “references” unless authorized by HR Hiring: Identify the type of information that is legal to use Illegal drug use Poor work ethic Racist or discriminatory tendencies Negative feelings about previous employers Screen candidates uniformly Use a neutral third party to search for and filter information Support hiring decisions with documentation and legitimate, non-discriminatory reasons Consult with employment counsel Monitoring: Access e-mails and web activity conducted on company-operated networks only Confirm the terms and condition of the social networking site Are you a public employer? The rules are different

The Importance of Policies City of Ontario v. Quon -The supreme court addresses whether a SWAT team member had a reasonable expectation of privacy in text messages transmitted on his city-owned pager. - Decision: The search of Quon's text messages was reasonable and did not violate the 4th amendment because the search was motivated by a legitimate work-related purpose and it was not excessive in scope.

The Importance of Policies Tiffany A. Marshall v. Mayor and Alderman of the City of Savannah, GA -Female firefighter, who received oral reprimand for posting photographs on her myspace, files suit alleging gender discrimination and retaliation -Court granted motion for summary judgment in 2009. Court dismissed racial discrimination claim on grounds that she did not assert it in EEOC Charge of Discrimination. The court determined that her “speech” in her photographs on her myspace was not entitled to First Amendment protection.

Trademarks, Trade Secrets, Confidential Information Use of others’ trademarks on social media sites can lead to liability for infringement. Trademark owners who do not enforce their marks risk abandoning them. Ensure your policy includes advice to employees not to use company trademarks on social media sites without authorization. Ensure employees are aware of what information may be freely discussed online. Develop a policy to include a confidentiality agreement to include upon departure, an employees’ legal obligations regarding confidential information. Monitoring is the best preventative measure against trademark infringement. Provide Employee training to prevent loss of trade secrets and confidential information.

Who’s Protecting Your Name? Identifies his employer

Copyright Violations Injunctive relief and money damages may be sought for each infringing use. Proper attribution and limited content is necessary when content created by others. For reproducing certain content, sometimes seeking permission from copyright owner is best. It is important to establish a policy to ensure your employees do not post infringing content for which your organization is liable.

After waitress Ashley Johnson spent 3 hours waiting on a couple at the North Carolina pizza restaurant where she worked, she expected more than the $5 tip they left on the table. According to the waitress, because the couple stayed so long, she had to stay on at work for an extra hour after her shift was over. The 22-year old waitress was not happy about it. And, as many 22-year olds are inclined to do, she talked about her unhappiness on Facebook. Brixx posted a statement about the incident on their Facebook page: “ Brixx Wood Fired Pizza Brixx appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them. 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. We welcome your comments, but please keep it clean!” Social Media Affects Brands

A sampling of the comments on Brixx's Facebook page on Monday morning:

Whole Foods Resignation Letter Goes Viral The letter, which has gone viral on the internet , claimed the food chain ignored its own business philosophies. "I was hired about five or six years ago. I appreciated and respected what the company said its philosophies were at that time," the letter begins. "However, it didn't take long to realise [sic] what complete and utter ******** they are." In the letter, which was posted on Gawker.com, the previous employee complained the company, which touts its green credentials, didn't recycle properly, threw out food that could go to the needy and made employees to wear "poorly made, ugly T-shirts." Fellow employees were also targeted in the rant.

Red Bull Racing Employee Fired Over Anti-Gay Tweet Fuller posted a picture on his Twitter page that showed the back of a car with a gay-pride sign. He added a caption under the picture reading “ this is way (sic) I don’t live here! ”

Defamation via Social Media Defamation: Defamatory remarks on a blog or social networking site regarding a competitor or the quality of its products/ services or about a third party or another employee could be imputed to the employer under certain circumstances. Will one Chicago woman's Tweet cost her $50,000?

eBay – Feedback Be Careful eBay buyer faces libel action after leaving negative feedback legal action for libel after leaving negative feedback for an item he bought on auction website eBay. Chris Read received the £155 mobile phone he had purchased from Joel Jones on eBay, he found it was the wrong model and was not in good condition, as advertised. The 42-year-old mechanic returned the phone and wrote: "Item was scratched, chipped and not the model advertised on Mr Jones's eBay account." Jones, a 26-year-old businessman told Read that his comments were damaging his business, and threatened him with legal action unless he deleted them from the site. Read said: "I was told the phone was in good condition, but there were scratches all over it, a big chip out of the side and it was a different phone. I paid for a Samsung F700 and got a Samsung F700V." Read received a refund for the erroneous product and stood his ground

eBay -- Defamation and Libel?! April 2010 Michael Steadman bought a $44 time clock for his welding shop from eBay seller Elliot Miller Steadman said that what arrived was definitely not as advertised – and in fact, the clock was in three parts, which were of different models and didn’t even fit together. Miller refused to issue a refund and Steadman used PayPal’s buyer protection to get a refund Feedback to Miller’s eBay profile: “ Bad seller; he has the ethics of a used car salesman.” Miller is a Miami lawyer - filed a lawsuit against Steadman in February 2009 Ruining his 100 percent rating and “commercial reputation.” According to the suit, the product was “plainly offered for sale with the following language: ‘we can not give you any guarantees and must offer it on an as-is, where-is basis only.’” Claims Steadman’s eleven-word eBay feedback amounted to defamation and sought $15,000. Steadman originally tried to represent himself but ended up lost in the legal system with no idea what documents to file, and had to borrow from the second mortgage he’d taken out to start his business to hire a lawyer. But now the funds have run out and his lawyer quit.

Facebook and Defamation T & J Towing in Kalamazoo, Michigan / College student’s Facebook group called “ Kalamazoo Residents against T & J Towing” Claims the FB page is costing the business lost contracts and “substantial” revenue. Suing Justin Kurtz, a 21-year-old Western Michigan University student, for $750,000; also requests an order prohibiting Kurtz from making “any further libelous and slanderous written claims” about T & J Towing. Kurtz started the Facebook group after having had his car towed from an apartment complex; Kurtz insists that he had a valid parking sticker attached, and alleges that his car was broken into and the sticker removed so it could be towed. The Facebook group (at the time) had over 10,000 members The attorney for T & J Towing states that without proving that the car was broken into and the sticker removed, says Burnham, Kurtz is liable for defamation. Michigan Defamation Law requires a plaintiff to show that a published statement made by another person is false and harmful to the person bringing the claim. The court could also consider the number of members and the comments made by them as part of the “totality” in determining whether Kurtz’s statements are defamatory

Social Media Raises Risk of Insider Trading If an employee “tweeted” out of excitement after a new purchase, endeavor, or business acquisition; this can be considered an insider tip and if one sees this tweet and purchases a good amount of stocks, SEC insider trading implications may occur. If an executive “tweeted” that his company was about to be acquired and he was about to become rich, then his tip actually happened, he could be liable for insider trading under certain circumstances.

Laws and Regulations Florida Deceptive and Unfair Trade Practices Act / Federal Trade Commission National Labor Relations Act Fair Labor Standards Act Sarbanes Oxley

Florida Deceptive and Unfair Trade Practices Act The FDUTPA makes it illegal to engage in unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. To establish a claim under the statute, you must allege and prove that your lender engaged in a deceptive act or unfair practice, that the lender’s act harmed you and the amount of damages you incurred. It is not necessary to prove fraud, only that the lender engaged in a deceptive or unfair practice. In determining whether action violates FDUTPA, the statute directs the courts to give due consideration and great weight to interpretations of the Federal Trade Commission and the federal courts under the Federal Trade Commission Act.

Federal Trade Commission FTC “Revised Endorsement and Testimonial Guides” Requires disclosure of relationships to advertisers and free samples/products given to online product reviewers Disclosure required if public not likely to know that it is a paid advertisement, e.g. during interview Endorsements must reflect actual use by and belief of endorser “ Results not typical” disclaimer no longer permitted Applicable to bloggers, Twitter, Facebook and other online postings which endorse products or services

National Labor Relations Act Defines five unfair labor practices for which the employer will be held liable under the act: Interference with, restraint, or coercion of employees in the exercise of their §7 rights of organization; Domination of or interference with the formation or administration of any labor organization, or financial (or other) contribution or support to it; Discrimination in regard to the hiring or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization; Discharge or discrimination against any employee because he/she has filed charges or given testimony under the NLRA; and Refusal to bargain collectively with the representatives of the employees subject to §9(a).

National Labor Relations Act continued… Can be “protected, concerted activity” Blogging about unfair employer policies applies to all employees, not just unionized workers It is possible to learn from Facebook pages, Twitter updates, or personal blogs what a prospective employee’s feelings toward a union If an employer can be shown to have used information about an individual’s labor beliefs found through social media outlets in order to discriminate against that person in the hiring person, that employer will have acted in direct violation of the NLRA and will be found to have committed an unfair labor practice.

National Labor Relations Act cont… NLRB Complaints challenging an employer’s discipline of an employee for statements made using social media: Chicago Regional Office Sales employee complained on Facebook about quality of food offered at BMW sales event (hotdogs and water) New York Regional Office an employee who posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The post generated responses from 4 other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, Hispanics United discharged all five employees, claiming that their comments constituted harassment of the employee originally mentioned in the Facebook post. Hartford Regional Office

NLRB vs. American Medical Response Souza was fired when she went on Facebook and called her supervisor a “dick” and “scumbag” NLRB filed a complaint alleging that the company’s overly broad policies violated Section 7 of the National Labor Relations Act (NLRA), which gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees must be permitted to discuss the terms and conditions of their employment with co-workers and others, and by terminating Souza for posting comments that drew support from co-workers, AMR had violated the NLRA. Under the settlement agreement, AMR was required to rewrite their social media policy

Fair Labor Standards Act The Fair Labor Standards Act (FLSA) governs payment of overtime and minimum wage - Minimum wage : employers are required to pay covered, nonexempt employees at least the federal minimum wage (currently $7.31 per hour) for each hour they work up to 40 hours in any given work week. (Florida minimum wage is currently 7.31 per hour) - Overtime : employers are required to pay covered, nonexempt employees overtime compensation at a rate of one and a half times their regular rate of pay for every hour worked over 40 in any given work week. Using social media sites for work purposes before or after work hours may be work time. Is the time “de minimus”? For nonexempt employees, this work time needs to be recorded for purposes of calculating overtime. Chances are, however, that this time is not being accurately tracked. It is difficult to track because it occurs outside the workplace and it often occurs in small intervals of time By failing to track this time, however, employers are placing themselves at risk for claims for unpaid overtime.

Miguel Agui et. al. v. T-Mobile Inc. (E.D. New York) Current and Former employees sued T-Mobile claiming they were required to use company issued phones to respond to work messages after hours without compensation Plaintiffs, who were non-exempt employees also claimed they were required to arrive early, but had to wait until a second employee arrived before beginning store opening operations Plaintiffs claim they were required to hand out business cards with their mobile number on them and were frequently called by customers during off hours with no additional compensation for answering questions The employees sought to pursue a collective action on behalf employees employed across the U.S. since July 10, 2006, (T-Mobile employs approx. 36,000 employees). The parties reached a confidential settlement agreement

Sarbanes Oxley Social Media Amendment SEC Chairman Christopher Cox states: “ The intent of the legislation is to promote the global competitiveness of publicly held U.S. corporations by stimulating authentic conversation in our nation’s workplaces” The changes amend the original act with an exception that will free both corporate users and their corporations from legal liability for statements made on the company’s public web sites when such statements can reasonably be characterized as “critical commentary” in a recognized social media environment..”

Your Social Media Policy Social Media if not used correctly can expose an employer to many liabilities. To reap the benefits, creating a social media policy is essential. Update your policy regularly to account for technology developments. Consult with legal counsel when preparing a social media policy. Address both use of social media by employer as well as employees in the policy. Include matters such as use during working hours and non-working hours. Develop clear rules in regards to screening social media to make hiring decisions. Employees should be required to use disclaimers when making personal posts. Employers should require express authorization before an employee may post as a representative to the company.

Components of a Social Media Policy Advise employees disclosure of confidential information is prohibited Are employees prohibited from identifying their employer in their social media activities? What is your social media monitoring policy? Reference your employee handbook and other policies Do you differentiate between personal and corporate social media use? May employees comment on company business? Do you identify who is “authorized” to speak on behalf of the Company?

Components of a Social Media Policy cont. Do you have restrictions on the use of logos, trademarks, and company names, etc.? Employee disclaimers? Pre-approval required for company posts? Morality/ethics statements? Defamation Discrimination/harassment Personal responsibility Copyright and Fair Use “ Friending” guidelines Crisis and Investigation plan?

Who do you want as your “Friend”? Office Team Facebook Study 48% of executives are not comfortable “friending” subordinates 32% of employees are “ not comfortable at all” “friending” their boss 28% of employees are “not comfortable at all” “friending” their colleagues 33% of managers are “not comfortable at all” “friending” their direct reports

..??..QUESTIONS..??.. Carrie B. Cherveny, Esq. Email: [email_address] 561-659-3300

Social media carrie cherveny-revised

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