This document summarizes key legal issues related to social media use in the workplace. It discusses what constitutes social media, how much time employees spend on social media sites during work hours, and both employee and employer views on social media monitoring. It outlines legal risks for employers, such as negligent hiring, discrimination, and reputational harm. It also discusses constraints on employee discipline related to social media use and privacy issues concerning employee monitoring.

1. Social Media In the Workplace and BeyondAlexander Nemiroff, Esq.Jackson Lewis, LLP1601 Cherry Street, Suite 1650Philadelphia, Pennsylvania 267.319.7816Alexander.Nemiroff@jacksonlewis.com

2. What is “Social Media”?MySpaceFacebookFriendsterLinkedInTwitterSkypeBlogsDigg, Reddit, TechnoratiYouTubeUnvarnishedInstant MessagingTexting

3. Social NOTworking?How many working hours are lost?50% of Facebook users log on everyday 22% visit social networking sites 5+ times/weekOnly 52% of employees say they don’t use social networking sites during work hoursAnd that’s not counting time spent texting, instant messaging, surfing, making phone calls, etc. …

4. Employee Views on Social Media UseSurvey says:53% of employees say their social networking pages are none of their employers’ business74% say it’s easy to damage a company’s reputation on social media15% say that if their employer did something that they didn’t agree with, they would comment about it online

5. What Do Employers Do?40% of business executives surveyed disagree that what employees put on their social networking pages is not the employer’s business30% admit to informally monitoring social networking sites

6. Key Legal Challenges for EmployersNegligent hiring/supervision

7. Discrimination/harassment/retaliation

8. Disclosure of trade secrets or proprietary information

9. Reputational harm to employees

10. Reputational harm to employers

11. Privacy pitfalls

12. Legal constraints on employee disciplineWould You Hire Him as a Lifeguard?

13. Do You Have the Same Response?

14. Risk Factor: Negligent Hiring/Supervision/RetentionAn employer may be held liable for an employee’s wrongful acts if the employer knew or had reason to know of the risk the employment created

15. Risks for EmployersUsing the Web to Make Hiring Decisions Many employers and job recruiters check out potential employees on the WebUsing search engines such as Google or Yahoo and internet sites such as PeopleFinders.com, Local.Live.com or Zillow.comSome studies show more than half of employers use some kind of screening on social networking sites

16. Information Found on Social Networking Sites

17. Hiring Decisions Based Upon Social Networking ActivityProblem: A search may identify an applicant’s protected characteristics such as age, race, sexual orientation, marital status, arrests or other factors that should not be considered in a hiring decision. Solution: Have a non-decision maker conduct the search and filter out protected information. Alternatively, hire a third party to conduct the search and filter out protected information.

18. Hiring Decisions Based Upon Social Networking ActivityGuidelines for Employers on Internet Search of Applicants If you are going to do these searches:Do them consistently; towards the end of the hiring process

19. Screen out protected information

20. Verify information

21. Document the search; and

22. Determine how relevant the information is to the jobRisk Factor: Discrimination, Harassment - Employee Use of Social Media Electronic communications offer opportunities for misuseCan be used as evidence to support a harassment or discrimination claim

23. “Sexting” Concerns20% of teens and 33% of young adults electronically sent nude photographs of themselves

24. 39% of teens and 59% of young adults sent sexually explicit text messagesSource: National Campaign to Prevent Teen and Unplanned Pregnancy, 2008 Survey

25. Risk Factor: Reputational Harm to Employees Defamation - plaintiff must prove defendant published a false statement about plaintiff that tends to harm plaintiff’s reputation

26. Employer can be liable if the employee had apparent authority to speak on its behalf – Beware of personal references!!Risk Factor: Reputational Harm to Employers

27. Is this the Image You Want for Your Company?

28. How about this one?

29. Not Laughing Now

30. Risk Factor: Employee DisciplineNational Labor Relations Act

31. Employees who IM or blog about their working conditions or employers may be protected under the NLRA

32. Employees have a right to engage in "concerted activity“ for the purpose of collective bargaining or other mutual aid or protection

33. Applies to both union and non-union employeesLegal Constraints on Disciplining Employees for Online ActivityUnlawful Restrictions: Statement that prohibits the sharing of information concerning other employees, such as wages, hours and terms and conditions of employment. Lawful Restrictions:Prohibition on disclosing confidential company business information and documents; Prohibition on disclosing “confidential” employee information;

34. Prohibition of conduct which is or has the effect of being injurious, offensive, threatening, intimidating, coercing, or interfering with the Company’s employees. 22

35. Legal Constraints on Employee Discipline: NLRAWhat is protected activity: Kiewitt Power Constructors Co., 355 NLRB No. 150 (8/27/10) Held two employees complained to their supervisor regarding the location of where they were required to take their breaks and then told the supervisor the situation could “get ugly” and supervisor had “better bring [his] boxing gloves” engaged in protected concerted activity under the Act because the statements were spontaneous and not outright threats.Plaza Auto Center, Inc. 355 NLRB No. 85 (8/16/10) Held that a salesperson who shouted at his employer’s owner that he was a “f…ing crook” and an “a..hole” during a meeting with management to discuss pay and commissions, among other things, was engaged in protected concerted activity at the meeting and that his outburst was not so egregious so as to lose the protection under the Act.23

36. Other Outlets for the Disgruntled Employeewww.jobvent.comwww.hateboss.comwww.workrant.comwww.fthisjob.comwww.rantasaurus-rex.com

37. Risk Factor: Employee DisciplineExpression of political opinions (e.g. New Jersey)

38. Legal off-duty activities (e.g. California, Colorado, Connecticut, New York)

39. Wrongful termination in violation of public policy (arrests, convictions, bankruptcy, workers’ compensation history)

40. Whistleblowing (SOX, Wage & Hour)Risk Factor: Federal Wiretap ActProhibits “interception” of electronic communications

41. Most courts hold that acquisition of electronic communications must occur contemporaneously with transmission

42. Is monitoring of Instant Messages “interception”?Risk Factor: Federal Stored Communications ActPrevents employers from using illicit or coercive means to access employees’ private electronic communications Pietrylo v. Hillstone Rest. Group, 29 I.E.R. Cases 1438 (D.N.J. 2009)Jury verdict for employees under the Stored Communications Act, 18 U.S.C. §2701(a)(1), affirmed by federal court where managers accessed employee’s blog.Employees of Houston’s restaurant maintained an invitation-only chat room (the “Spec-Tater”) on MySpace for fellow employees to “vent” about their work experiences. It became populated with complaints about the restaurant, customers, and supervisors. One employee told supervisors about the site and they asked for her password. Pure PowerBootCamp v. WarriorFitnessBootCamp LLC (2nd Cir., 2011) Accessing Personal E-mails Can Violate Federal Stored Communications Act Even With No Actual Damages

43. Two employees left to start competing fitness facility.

44. Pure Power learned through 546 e-mails from four personal accounts belonging to the former employees (e.g. Hotmail) that former employees had taken customer lists, training and instruction materials, and solicited customers.

45. How? The former employees had stored their usernames and passwords on company’s computers.

46. Employees countersued under SCA -- $1,000 per countEmployee Monitoring and Privacy IssuesKey question: Did the employee have a reasonable expectation of privacy in the electronic communication?

47. Ensure monitoring is:

48. based on legitimate needs, and

49. limited in scope to achieve those needs It’s Amazing What Folks Put on the Internet for Everyone to See

50. It’s Amazing What Folks Put on the Internet for Everyone to See

51. WHAT??

52. Employee Monitoring and Privacy IssuesCourts are more likely to rule for the employer if:

53. Employer owns the computer and e-mail system

54. Employee voluntarily uses an employer’s network

55. Employee has consented to be monitored (usually based in written personnel policy)Employee Monitoring and Privacy IssuesCurrently unclear if an employee has a reasonable expectation of privacy in blogs or IMs

56. Courts have split on whether there is a reasonable expectation of privacy in content maintained on third-party servers (e.g., web-based e-mail accounts)Is There a Right to Privacy in Email, Texts, and Communications on Employer Systems?In a unanimous decision, the U.S. Supreme Court held that the City of Ontario’s review of transcripts of an employee’s text messages sent and received on a City-issued pager was a reasonable search under the Fourth Amendment. City of Ontario, Calif. v. Jeff Quon, et al., No. 08-1332 (June 17, 2010). The Court disposed of the case on narrow grounds, preferring to avoid the risks of establishing "far-reaching premises" before the role of technology in society and its Fourth Amendment implications becomes clear.” Nevertheless, the Supreme Court outlined principles instructive to all employers that allow employees to use electronic communications devices, including cell phones, i-Phones, and Blackberries.

57. Policy Guidance from QuonAll employers must be prepared with comprehensive computer and electronic equipment usage policies. The Court noted that these policies will help shape an employee’s expectation of privacy. Further, it is critical that practices and policies be consistent, reflect current technologies, and be clearly communicated. Employers also should consider requiring employees to acknowledge in writing that they received and reviewed these and similar policies and procedures, particularly as new technologies are introduced.

58. Methods to Minimize RiskDevelop a written policy regarding access by HR and hiring managers to applicant and employee social networking sitesTrain HR and IT personnel responsible for monitoring and using electronic information on:Avoiding improper access Screening out information that cannot be lawfully considered in hiring and disciplinary decisions

59. Methods to Minimize RiskProhibit access to private password social networking sites without proper authorizationDo not allow any third party to “friend” an applicant to gain access to the applicant’s siteEnsure employment decisions are made based on lawful, verified information

60. Methods to Minimize RiskConsider restriction on professional references via LinkedInConsider blocking or limiting employee access to social networking sites through company computers

62. Drafting an Effective E-Mail and Internet Use Policy

63. Key Elements of Electronic Communications PoliciesConsider company philosophy and business

64. No expectation of privacy when using company equipment

65. Employees must abide by non-disclosure and confidentiality policies and agreementsKey Elements of Electronic Communications PoliciesOnly individuals officially designated may speak on behalf of the Company

66. “Bloggers Beware” - Require a disclaimer:“The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.”

67. Key Elements of Electronic Communications PoliciesCompany policies governing corporate logos, branding, and identity apply to all electronic communications

68. Employees may not make defamatory comments when discussing the employer, co-workers, products, services and/or competitors

69. Based on the FTC’s endorsement guidelines, require employees to obtain prior approval before referring to company products and services and to disclose the nature of the employment relationshipKey Elements of Electronic Communications PoliciesDo not prohibit employees from discussing terms and conditions of employmentIf allowed at work, time spent social networking, blogging or texting should not interfere with job dutiesRemind employees expected to comport themselves professionally both on and off duty

70. Terms of an Effective E-Mail and Internet Use PolicyEmployer should REVIEW AND REVISEpolicies regularly

71. Need to put date on each revision

72. Employer should ACTUALLY MONITORuse of the system and devices to maintain and protect policy’s integrity

73. Guard against violations and inconsistent use 46

74. Employer OverreachingThe Town of Bozeman, Montana, required job applicants to provide passwords to email (Google, Yahoo!) and social networking sites (MySpace, Facebook) accounts.98% of people polled believed this policy to be an invasion of privacyOn June 22, 2009, the town rescinded the policy

75. 48