1. Social Media In the Workplace and Beyond Alexander Nemiroff, Esq. Jackson Lewis, LLP 1601 Cherry Street, Suite 1650 Philadelphia, Pennsylvania 267.319.7816 Alexander.Nemiroff@jacksonlewis.com
2. What is “Social Media”? MySpace Facebook Friendster LinkedIn Twitter Skype Blogs Digg, Reddit, Technorati YouTube Unvarnished Instant Messaging Texting
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4. Employee Views on Social Media Use Survey says: 53% of employees say their social networking pages are none of their employers’ business 74% say it’s easy to damage a company’s reputation on social media 15% 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 business 30% admit to informally monitoring social networking sites
14. Risk Factor: Negligent Hiring/Supervision/Retention An 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 Employers Using the Web to Make Hiring Decisions Many employers and job recruiters check out potential employees on the Web Using search engines such as Google or Yahoo and internet sites such as PeopleFinders.com, Local.Live.com or Zillow.com Some studies show more than half of employers use some kind of screening on social networking sites
17. Hiring Decisions Based Upon Social Networking Activity Problem: 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.
24. 39% of teens and 59% of young adults sent sexually explicit text messagesSource: National Campaign to Prevent Teen and Unplanned Pregnancy, 2008 Survey
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
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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
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36. Other Outlets for the Disgruntled Employee www.jobvent.com www.hateboss.com www.workrant.com www.fthisjob.com www.rantasaurus-rex.com
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.
57. Policy Guidance from Quon All 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 Risk Develop a written policy regarding access by HR and hiring managers to applicant and employee social networking sites Train 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 Risk Prohibit access to private password social networking sites without proper authorization Do not allow any third party to “friend” an applicant to gain access to the applicant’s site Ensure employment decisions are made based on lawful, verified information
60. Methods to Minimize Risk Consider restriction on professional references via LinkedIn Consider blocking or limiting employee access to social networking sites through company computers
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.”
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68. Employees may not make defamatory comments when discussing the employer, co-workers, products, services and/or competitors
74. Employer Overreaching The 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 privacy On June 22, 2009, the town rescinded the policy
The court held Jasmine retained the standing to sueThe court analogizes to a victim of an automobile accident who does not need to keep her damaged vehicle until trial to recover for the damages caused by a negligent driver
The Court avoided deciding whether public employees have a reasonable expectation of privacy in text messages sent on employer-owned equipment under the Fourth Amendment and what particular standard ought to apply in making that determination. It acknowledged that rapid changes in communications and the means by which information is transmitted, as illustrated by advancements in technology and what society views as proper behavior, created significant challenges to setting legal standards for the workplace that would survive the test of time. So, the Court assumed, without deciding, that Quon had a reasonable expectation of privacy in his text messages and the case could be decided on narrower grounds, i.e., whether the search was reasonable under well-defined Fourth Amendment standards.
