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Lathrop and Gage presentation - February Pro Lunch


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Lathrop and Gage presentation - February Pro Lunch

  1. 1. Welcome! 1 © 2014 Lathrop & Gage LLP
  2. 2. Top 10 Legal Pitfalls for Content Generators David Barnard ● David Waters 2 © 2014 Lathrop & Gage LLP
  3. 3. David Barnard Lathrop & Gage LLP David Waters Lathrop & Gage LLP 3 © 2014 Lathrop & Gage LLP
  4. 4. Social Media in Litigation List of 689 Social Media evidence cases (2010-2011) MySpace (315 cases), Facebook (304), LinkedIn (39), Twitter (30), Foursquare (1). Criminal matters were most common case type, followed by employment-related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition). 4 © 2014 Lathrop & Gage LLP
  5. 5. Slander, Defamation and Libel Slander, defamation, and libel • When employee posts negative statements about another employee, vendor, competitor, etc. 5 © 2014 Lathrop & Gage LLP
  6. 6. Hostile Work Environment Hostile Work Environment • When postings contain sexually inappropriate, otherwise discriminatory communications 6 © 2014 Lathrop & Gage LLP
  7. 7. Healthcare Privacy and HIPAA #plazafire 7 © 2014 Lathrop & Gage LLP
  8. 8. 8 © 2014 Lathrop & Gage LLP
  9. 9. 9 © 2014 Lathrop & Gage LLP
  10. 10. HIPAA Health Insurance Portability and Accountability Act 10 © 2014 Lathrop & Gage LLP
  11. 11. Who Must Comply with HIPAA? “Covered Entities” must comply with the Privacy and Security Rules in HIPAA • • • • Healthcare Providers (Hospitals, Physicians, Dentists, Nursing Homes, Pharmacies) Health Plans (Health Insurance Companies, HMOs, Employer Group Plans) Health Care Clearinghouses (Claims processors, billing services) “Business Associates” (That perform services for Covered Entities that involve the use or disclosure of Protected Health Information). So, who is NOT covered by HIPAA? • • • • Generally, an Employer (even if a Covered Entity, when acting as an employer) Your friends or colleagues at work. News Reporters. Concerned Citizens. Other privacy laws may be impacted, but not HIPAA. Limited Applicability. 11 © 2014 Lathrop & Gage LLP
  12. 12. “Protected Health Information” Individually Identifiable Information • • • • Information (including demographic information) Created or received by a Covered Entity (Healthcare Provider, Health Plan, Health Care Clearinghouse, Business Associate) Relating to: Past, Present, Future Physical or Mental Health Condition of an individual; Provision of health care to an individual; or Payment for provision of health care Identifying the Individual or there is a reasonable basis to believe the information could be used to identify the person. 12 © 2014 Lathrop & Gage LLP
  13. 13. GINA Genetic Information Nondiscrimination Act Enforced by the Equal Employment Opportunity Commission. Protects EMPLOYEES and JOB CANDIDATES from discrimination based on their GENETIC INFORMATION or that of their family members. Illegal for an employer to DELIBERATELY ACQUIRE genetic information about employees (e.g., ask about family medical history on employment application). Social Media creates more opportunities for genetic information to be shared, opening the door to claims of employment discrimination. INADVERTENTLY LEARNING of employee’s genetic information is not illegal. Also, exception for COMMERCIALLY AND PUBLICLY AVAILABLE information. 13 © 2014 Lathrop & Gage LLP
  14. 14. Discrimination Claims Discrimination Claims • Comments about protected status can be proof of discriminatory animus 14 © 2014 Lathrop & Gage LLP
  15. 15. Insider Trading/Securities Fraud 15 © 2014 Lathrop & Gage LLP
  16. 16. Trade Secrets Trade secrets and intellectual property disclosure/infringement • Disclosure of certain of your trade secrets or IP can • destroy (or at least erode) the “confidential” or protected status of the information Employee’s use of someone else’s IP may constitute “infringement” Proven by e-trail 16 © 2014 Lathrop & Gage LLP
  17. 17. Ownership Special risk for content providers that may use of multiple profiles or platforms (the “business” and “personal”) for same or similar content. Can a company cash in on, and claim ownership of, an employee’s social media account, and if so, what does that mean for workers who are increasingly posting to Twitter, Facebook and Google Plus during work hours? Figure out at the beginning of your relationship (whether on the employer side, or the content provider side), who owns the contacts developed through an employee’s use of social media. Decide who gets to continue the account after the relationship ends. No “bright line” test, but content providers should probably assume—absent an agreement—that “followers” or contacts you make through your professional networks/accounts belong to the business. 17 © 2014 Lathrop & Gage LLP
  18. 18. Rogue Employees Rogue employee/exemployee access • Know who has access • Coordinate with HR 18 © 2014 Lathrop & Gage LLP
  19. 19. "If anything good has come of this, I hope it's that other employees and employers out there can recognize the importance of social media to companies and individuals both. Good contracts and specific work agreements are important, and the responsibility for constructing them lies with both parties. Work it out ahead of time so you can focus on doing good work together -- that's the most important thing." 19 © 2014 Lathrop & Gage LLP
  20. 20. Endorsements 20 © 2014 Lathrop & Gage LLP
  21. 21. ENDORSEMENTS VS. “LIKES” OR RETWEETS. • • • All are “one-click” solutions, so tempting to view them the same. But, Likes and Retweets apply more to CONTENT: a photo, a shared article, an observation, an announcement. They may have little to do with the person. But LinkedIn Endorsements have EVERYTHING to do with the person, and even more, a particular quality of that person or organization. FEDERAL TRADE COMMISSION, 16 CFR PART 225 • • “Use of Endorsements and Testimonials in Advertising.” If you have employees saying great things about your company on their blogs, social media accounts, etc., anywhere the relationship is not open and obvious, there may be a need to disclose they are employees or are getting paid to write the reviews, endorsements, or recommendations. 21 © 2014 Lathrop & Gage LLP
  22. 22. FTC/Endorsement Rules FTC/Endorsement Rules • • • Effective 12/1/09 Intended to curb “deceptive advertising” “Material connections” between blogger and company MUST be disclosed 22 © 2014 Lathrop & Gage LLP
  23. 23. Social Media Policies… • On May 30, 2012, the NLRB issued NEW Guidelines on Social Media Policies. • The Memo discusses six relatively common policies that it found unlawful, including: “Don’t release confidential guest, team, or company information” “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as offline…” “Think carefully about “friending” co-workers” “Don’t pick fights. Communicate in a professional tone.” • The Memo is simply guidance, and the courts will have to sort out the interplay between protected speech and good business practices. 23 © 2014 Lathrop & Gage LLP
  24. 24. Tell Us How You Really Feel Cisco job candidate offered job. Candidate tweets ─ “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Cisco responds Job offer . . . rescinded. 24 © 2014 Lathrop & Gage LLP
  25. 25. Letting Your Lawyers Make You Look Like Morons 25 © 2014 Lathrop & Gage LLP
  26. 26. Morons, cont. 26 © 2014 Lathrop & Gage LLP
  27. 27. Morons, cont. 27 © 2014 Lathrop & Gage LLP
  28. 28. Download our app! LG GO is now available for download in the Google Play and Apple stores. 28 © 2014 Lathrop & Gage LLP
  29. 29. David Barnard Lathrop & Gage LLP 816.460.5869 David Waters Lathrop & Gage LLP 913.451.5112 29 © 2014 Lathrop & Gage LLP