Social media in the workplace

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2013 Webinar Series
Social Media in the Workplace
Thursday: August 15, 2013
Presented by:

Simplifying business. Benefiting people.
AlphaStaff Welcomes Our Featured Partner!
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Jessica Debono Anderson
Attorney At Law
Orlando Office

Privacy and Social Media
in the Workplace
• Social media is here to stay.
• Can expose an employer to liability under several legal theories,
such as harassment, discrimination, defamation and invasion of
privacy.
• Steps to protect against legal hazards associated with social
media content, including social media policies.
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What We Will Discuss
•Social networking’s impact on your workplace
•Potential employer liability from social networking
•Using social networking information for hiring and other
employment actions
•Adopting a social media policy

Social networking’s impact on your workplace
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Facebook
• Facebook has over 1 billion active users.
• 50% of Facebook users log on everyday.
• Adults online who say they participate in social networking has
increased from 8% in 2005 to 72% in 2013.
• One out of every 7 minutes spent online is spent on Facebook.
• 300 million pictures are uploaded to Facebook everyday.
• 22% of employees visit social networking sites 5 or more times
per week; many admit to logging in while at work.

Twitter
• On a busy day Twitter sees about 175 million tweets.
• 62% of Twitter users are in the 18-34 age group.
• Every second 750 tweets are being shared on Twitter.
• Twitter has 140 million active users and sees 340 million tweets
per day.
• About half of the world’s Twitter users are from the USA.
• 55% of Twitter users are females.
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Potential Theories of Employer Liability
– As with any business activity, social media creates legal risks.
• Legal claims for harassment, discrimination and retaliation.
• Loss of third party information.
• FTC issues arising from employee blogs. The Federal Trade Commission (FTC)
has promulgated guidelines addressing appropriate online endorsements
(available at http://www.ftc.gov/).
• Loss of company’s confidential information; improper disclosure of
confidential or other protected information.
• Legal claims for invasion of privacy.
• Reporting requirements for child pornography.
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Common Questions
• Should our discrimination policies cover on-line activity? — Yes.
• We do not want employees posting all over Facebook, LinkedIn
and Twitter disparaging comments about the company. Can we
prohibit that? — No. Regardless of whether your workplace is
unionized or not, doing so could put you in hot water with the
National Labor Relations Board.
• Some of our managers like to review applicants’ public social
media profiles. Are there any risks? — There can be which we
will discuss.
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Common Questions
• It seems a good idea to screen more applicants’ social media
accounts before making offers of employment, so we have
included a place on our job application for the individuals to put
usernames and passwords to all their social networking
accounts. Is this a good risk avoidance strategy? — Probably
not. Many states have passed or are considering laws that
prohibit employers from asking employees or applicants for this
information.
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Asking For Passwords
• States with laws banning employers from asking workers for
their user names and passwords for their personal social
media accounts:
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Arkansas
California
Colorado
Illinois
Maryland
Michigan
Nevada
New Mexico
Oregon
Utah
Washington

Common Questions
• Can we at least prohibit employees engaged in social
networking from disclosing all of the company’s confidential
information? — Any prohibition should not be stated broadly,
but should be drafted narrowly to include only information that
would not infringe on an employee’s right to engage in
“protected concerted activity” under the National Labor
Relations Act (which, very generally, is an employee’s right to
commiserate with other workers about working conditions).
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Hiring
• There has been no reported increase in failure-to-
hire cases based on information obtained from
social networking sites.
• There is no law that directly prohibits the lawful
use of social networking sites in the hiring
process.
• But there are RISKS.

• A search may yield information about an applicant’s protected
characteristics—
– Age, disability/medical information, race, sex, religious beliefs,
pregnancy, sexual orientation, military status, marital status or other
characteristic
• The search may reveal other protected information—
– Workers compensation claims, bankruptcy filings, criminal or arrest
histories, or consumer reports
• Invasion of privacy / Intrusion upon seclusion – get
authorization on application
Risks During Hiring

Use of Social Networking Sites in
Employment
• Some states have laws that prohibit employers from considering
off-duty conduct when making adverse employment decisions.
– California, New York, Colorado, Connecticut and North Dakota have
statutes known as “lifestyle discrimination” laws, which ban
discrimination based on legal off-duty recreational behavior.
• An employer could arguably violate these laws by terminating an
employee after discovering from a social networking site that, for
example, the employee was drinking the night before.

Lessons Learned
• If you are going to use social networking sites for hiring
decisions:
– Do so consistently
– Rely on job-related criteria (preferably from a job description)
– Make sure to comply with all third-party terms of use agreements
– Make sure candidates are notified, in writing, about the company’s
use of social networking sites to gather information

Social Networking & Discipline

Discipline
•Several scenarios that may prompt an employer to
discipline an employee for his or social media use:
–Illegal web-based activity while at work.
–Employee who spends the majority of his or her time
on-duty on social networking sites or the web.
–Employees who violate social media policy.

Legal Constraints
• Employers must consider legal constraints before taking any adverse action:
– Whistleblower statutes
• Federal and state laws that protect employees who complain about
company conditions affecting health/safety or illegal practices.
– Political activities or affiliations
• Many states prohibit employers from regulating employee political activities
and affiliations or influencing employees’ political activities.
– Legal off-duty activity
• Some states protect an employee or applicant’s legal off-duty activities.

Legal Constraints (cont.)
– Potential discrimination claims
– National Labor Relations Act
• Affords employees right to engage in “concerted activity,” including the
right to discuss the terms and conditions of employment. Only those
activities that are engaged in for the purpose of collective bargaining or
other mutual aid or protection are covered.

Examples of Permissible Discipline
• Newspaper employee terminated following tweet about news
headlines including homicides, several tweets with sexual
content and criticism of an area television station but the
tweets were not shared with co-workers. NLRB found this was
not concerted activity.
• Employee terminated based on a Facebook conversation with a
relative complaining about not getting a raise and working
without tips. He did not discuss the posting with his co-workers
and none of them responded, so not concerted activity.
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Use of Social Networking Sites in the
Employment Context:
• Best Practices and Policies
– It is important for companies to integrate social media policies into
the workplace.
– Policies are important to communicate to employees the
expectations the company has in use of social media, and parameters
for usage.
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• Employers need a written policy that governs the use of and
access to the company’s computer system, including electronic
communication devices
• The policy should identify WHAT EQUIPMENT IS COVERED,
including
• Company computer system (hardware and software) and all
company issued electronic devices, including servers, backup
devices, PCs, laptops, cell phones, PDAs, pagers, text
messaging devices
Lessons Learned –
Terms

– Policy should identify WHO IS COVERED
• All users of system--any exceptions?
– Policy should identify the LEGITIMATE INTERESTS
advanced
– Employee productivity
– Protect confidentiality
– Protect image and intellectual property rights (logo, copyrighted
material, etc.)
Lessons Learned –
Policy Terms

– The policy should identify WHAT CONDUCT IS
PERMITTED
• Identify “acceptable use” of covered systems and
devices
• Clarify Personal use vs. Business use
• Consider corporate culture and other business factors
• Make choice then ensure workers know what, if any,
personal use is permitted under policy
Lessons Learned –
Policy Terms

• IDENTIFY PROHIBITED USES of the covered system and devices
– No disclosure of trade secrets.
– No harassment/discriminatory statements or sexual innuendo
about co-workers.
– No violation of any other company policies.
Lessons Learned –
Policy Terms

– Policy should clearly express that there is NO PRIVACY
when using any part of the computer system
– Personal communications to third parties are no exception to the “no
privacy” rule
– Consider prohibiting (and blocking) employee access to personal e-
mail accounts from company equipment
Lessons Learned –
Policy Terms

• Reserve the RIGHT TO INSPECT EQUIPMENT AND DEVICES used
at or to do work
• Reserve the RIGHT TO MONITOR AND REVEW CONTENT of e-
communications sent or received on or through company
system or devices, as well as internet use
Lessons Learned –
Policy Terms

• The policy should notify employees that ANY VIOLATION WILL
RESULT IN DISCIPLINE, up to and including termination
Learned –
Policy Terms

• NLRA Considerations in policy language
• NLRB has been challenging employer policies it
considers to be overly broad, in that they restrict
employees from making any “negative” or “disparaging”
statements about employer or terms and conditions of employment.
Developing Appropriate Policies
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Examples Of Policies The NLRB Has Found
Violate §7
• Policy prohibiting the release of confidential guest, team
member or company information.
• Policy stating that employees should never share confidential
information with another team member unless they have a
need to know the information to do their job.
• Unlawful because it could be interpreted as prohibiting
employees from discussing and disclosing information regarding
their own conditions of employment, as well as the conditions
of employment of employees other than themselves.
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Examples Of Policies The NLRB Has Found Violate
§7
• Prohibiting employees from using any social media that may
violate, compromise or disregard the rights and reasonable
expectations as to privacy or confidential information for any
person or entity.
• Prohibiting any communication or post that constitutes
embarrassment, harassment or defamation of the employer or
its officers, directors and employees.
• Prohibiting statements that lack truth or might damage the
reputation or good will of the employer, its officers, directors
and employees.
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Examples Of Policies The NLRB Has Found Violate
§7
• Prohibiting employees from posting about company business
on their personal accounts, anything they wouldn’t want their
supervisor to see, anything that may jeopardize their job,
disclosing sensitive or inappropriate information about the
company, posting pictures about the company and its
employees that could be construed as inappropriate.
• Precluding the disclosure of personal information regarding co-
workers, clients or the company.
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Developing Appropriate Policies (Continued)
• Be careful when using the following terms in your policy:
– Disparaging comments
– Disrespectful conduct
– Unprofessional communication
– Negative conversations
– Offensive communication
– Statements that damage the company
– Objectionable comments
– Inflammatory communication
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Examples Of Policies The NLRB Has Found Do Not
Violate §7
• Carefully read these guidelines, the company’s Statement of
Ethics Policy, the company’s Information Policy and the
Discrimination & Harassment Prevention Policy, and ensure
your postings are consistent with these policies. Inappropriate
postings that may include discriminatory remarks, harassment,
and threats of violence or similar inappropriate or unlawful
conduct will not be tolerated and may subject you to
disciplinary action up to and including termination.
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Do Not Violate §7
• Prohibiting posts that could contribute to a hostile work environment
on the basis of race, sex, disability, religion or any other status
protected by law or company policy.
• Prohibiting use of company email addresses to register on social
networks, blogs or other online tools utilized for personal use.
• Informing associates that they should not speak to the media on the
company’s behalf without contacting the Corporate Affairs
Department.
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Do Not Violate §7
• Users may not post anything on the Internet in the name of Employer or in a
manner that could reasonably be attributed to Employer without prior
written authorization from the President or the President’s designated
agent.
• Do not create a link from your blog, website or other social networking site
to the Employer’s website without identifying yourself as an employee.
• Refrain from using social media while on work time or on equipment we
provide, unless it is work-related as authorized by your manager or
consistent with the Company Equipment Policy.
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Examples Of Policies The NLRB Has Found Do Not
Violate §7
• Maintain the confidentiality of the company’s trade secrets and
private or confidential information. Trades secrets may include
information regarding the development of systems, processes,
products, know-how and technology. Do not post internal
reports, policies, procedures or other internal business-related
confidential communications.
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Implement the Social Media Policy
• Distribute policy to all employees
• Educate employees on why policy is important
• Train employees on rules of social media use
• Periodically update related policies
• Periodically review privacy settings and policies
• Be vigilant and proactive

Conclusion
Questions?
Thoughts?
Napping?
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Need Help? Contact Us !
• . Copies of the presentation
hrsc@alphstaff.com
888-335-9545 (Option 8)
Jessica DeBono Anderson
Attorney At Law
(407) 246-8458
Jessica.Anderson@jacksonlewis.com
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Upcoming AlphaStaff Webinar
Please mark your calendars !!!
Date: September 19, 2013
2:00 pm
Topic: Navigating the ‘Bermuda Triangle’ of
FMLA, ADA, & Worker's Compensation

Thank you for your participation!
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Social media in the workplace

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