Social Media Risks in the Workplace
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Social media has become a common mechanism to share information for more than three billion users worldwide. Facebook, the largest platform, has 2.5 billion users who post more than 100 billion messages each day. With so much information being shared daily, there’s a significant risk for companies whose employees use social media as part of their jobs and in their personal lives.
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Social Media Risks in the Workplace
- 1. Social Media Risks in the Workplace Kortney Nordrum, CCEP, CHC, Regulatory Counsel & Chief Compliance Officer, Deluxe Corporation
- 3. I am a lawyer, but I am not your lawyer – nothing in today’s presentation is legal advice or should be construed as such. I work for Deluxe, but everything you’re going to see and hear in the next hour is my own opinion and does not reflect the views of Deluxe or it’s leadership. Standard Disclaimers
- 4. What is Social Media?
- 10. Social Listening
- 15. The Rules
- 19. CVS Memo (2019) - following rules “lawful”: • Employees must make it clear they are not speaking on behalf of the company • Employees must use a disclaimer if they speak about the company on social media • Use of company logos or brand name requires company approval • Employees may not post anything ”discriminatory, harassing, bullying, threatening, defamatory, or unlawful” • Taking or sharing photos from non-public areas is prohibited • Employees may not post “content, images or photos” that they do not “have the right to use” • Internal communications and information must be kept confidential
- 20. CVS Memo (2019) - following rule “unlawful”: “Our Code of Conduct makes clear the importance of protecting the privacy and security of PHI, personally identifiable information and employee information. It is not possible to disclose this information through social media or other online communications.”
- 21. CVS Memo (2019) - following rule “unlawful”: “Personal opinions should be stated as such. CVS Health colleagues who choose to mention or discuss their work…in personal social media interactions must identify themselves by their real name and, where relevant, title or role. You must also identify that you work for CVS Health and must make clear in your postings that you are not speaking for or on behalf of CVS Health.”
- 23. July 21, 2020 NLRB Board Chairman John Ring: “For too long the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
- 24. MAJOR Policy Shift July 21, 2020 NLRB Board Chairman John Ring: “For too long the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and antidiscrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”
- 25. NLRB GC must prove the employee’s protected Activity was a motivating factor in the discipline
- 26. Then, employer must prove that it would have taken the same action absent the protected activity (i.e. showing consistent discipline of other employees who engaged in similar conduct)
- 28. 84% of Organizations using Social Media in Hiring Decisions
- 32. HARASSMENT Employees will talk to and about each other on social media
- 35. DISTRIBUTE INFORMATION BROADLY & NON-EXCLUSIVELY
- 38. DISCLOSE ANY MATERIAL CONNECTION TO ENDORSERS
- 48. ONE SIZE DOES NOT FIT ALL
- 52. DEFINE CONTENT
- 59. THIS IS A WHAT A CRISIS LOOKS LIKE:
- 76. HOW DO I START?
- 79. DO NOT FEED
- 80. Thank-you for participating Contact Kortney Nordrum kortney.nordrum@deluxe.com @nordrumlaw https://www.linkedin.com/in/knordrum/ Contact i-Sight j.gerard@i-sight.com Find more free webinars: http://www.i-sight.com/resources/webinars @isightsoftware
Editor's Notes
- NLRB Decisions apply to most private sector employers, including manufacturers, retailers, private universities, and health care facilities.
- The law gives employees the right to act together to try to improve their pay and working conditions, with or without a union. These rights were written into the original 1935 NLRA and have been upheld by the courts. Any social media post which can be construed as about wages, hours, or working conditions and are discussed with other employees or targeted to an audience that may include other employees are PROTECTED as CONCERTED ACTIVITY.
- Under recent decisions, employers are not allowed to restrict employees from the following on social media: gossiping, complaining, using profanity, making disparaging remarks about the employer, posting while at work, communicating with the media about the company…
- The NLRB surprised many in its March decision when it found that language of the most offensive degree was not “so egregious as to exceed the Act’s protection.”
- Cannot discriminate based on any of these factors.
- Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990. Generally, employers are liable for harassment claims in 2 situations: 1) if a supervisor harasses an employee or 2) if a coworker is the harasser. Employers have a duty to create a safe and non-hostile workplace for their employees and thus have a duty to prevent harassment through policies, training, and monitoring in the workplace. Thus, employers’ responsibility is also dependent upon whether they knew or should have known about the harassment and took the necessary action to prevent it. An employer is liable if it knows or should have know about harassment and fails to correct it (Burlington Industries v Ellerth). An employer has actual knowledge of harassment when higher management or someone with authority to correct the problem knows about it (Sharp v City of Houston).
- Regulation Fair Disclosure (FD) requires companies to distribute material information in a manner reasonably designed to get that information out to the general public broadly and non-exclusively. It is intended to ensure that all investors have the ability to gain access to material information at the same time.
- Previously private information was made available to his twitter followers before it was made available to the general pubic. Within 10 minutes of the post, Tesla stock had risen by 4%, adding $900 million to the company’s market capitalization.
- Customer endorsement must be from an actual, bona fide user of the endorsed product or service. In addition, if there is any material connection between the endorser and the advertiser that consumers would not reasonably expect—such as payment or other exchange of consideration, or an employment relationship—then that connection must be clearly and conspicuously disclosed. Because such information is likely to affect the weight or credibility that consumers will give to an endorsement, a failure to clearly and conspicuously disclose it is deceptive.
- Any promotional labeling for a drug or device must be truthful and non-misleading (FD&C 83 Act sections 502(a), 201(n)).
- Kim Kardashian’s corrective tweet after the FDA sent a letter warning about her original tweet. The FDA threatened to pull the drug for misbranding if they didn’t correct the situation.
- Provide employees with a clear understanding of what constitutes appropriate, acceptable, and lawful business behavior in plain English. Look at existing policies for similar organizations (Mayo Clinic, Intel, etc.)
- Aim to create policies that support, protect, and empower your employees to engage on social media in a responsible manner. Emphasize education.
- Use explicit examples to demonstrate acceptable and unacceptable behavior.
- Establish who owns the policy and who’s responsible for training, enforcing, and auditing it.
- Define what content is allowed and not allowed to be posted for each regulation. The policy should also cover acceptable use (profanity, hate, intolerance, etc). The content policy should also include how to address brand employee and public comment communications.
- Outline what is considered confidential information. Use examples.
- Designate a company spokesperson responsible for answering questions about your company on social media. Make sure your employees know who they should refer questions about your company to online, so they don’t attempt to answer themselves
- Avoid the 3 Ds
- Be clear about the consequences of you employees’ actions online. Explain that employees may be held responsible for things they publish online. Define what can happen if they, for example, post a video of themselves in their work uniforms engaging in behavior that can cast them and their employer in a negative light.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- From the Chrysler official account. Lesson: Make sure you’re using the right account.
- Watch and Listen
- People – what do they want? Objectives – what are your goals? Strategy – who do you want your relationship with others to change? Technology – which channel or media should you use?