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BEYOND THE WATER COOLER 
The Impact of “Socializing” and Managing Social Media in the Workplace 
Silvia King, FGP Internat...
COMMUNICATION & INFORMATION DISSEMINATION REVOLUTION
BACKGROUND FOR HR
SHRM 2012 SURVEY RESULTS: SOCIAL MEDIA IN BUSINESS STRATEGY AND OPERATIONS 
40% of companies who responded had a SM policy...
Overall, the majority of companies reported that HR is responsible for creating and enforcing these policies 
www.shrm.org...
Statistics 
Source: Statisticbrain.com 
“72% of all internet users are now active on social media”
How can you restrict social media at work so that productivity is not impacted and so that the employer has some control?...
PRE-EMPLOYMENT CONCERNS
SURVEY: GOGULF.COM
Job Applicant tweeted the following:
Applicant was not hired…
SOCIAL MEDIA – HIRING BEST PRACTICES 
SM after interview 
Tool in toolkit 
Don’t pass on questionable info to decision ...
SOCIAL MEDIA – HIRING (LEGAL IMPLICATIONS) 
•Risks 
False identity/inaccurate info 
Impermissible subject matter 
•Limit...
SOCIAL MEDIA – ACCESS TO PASSWORDS 
•Accessing passwords – with permission 
•Banned in 12 states 
•Not recommended 
Fair G...
MANAGING SOCIAL MEDIA IN THE WORKPLACE
CASE STUDY #1 
EMT suspended for inadequate report 
Later, commented that supervisor a “scumbag” and a “17” 
Employer t...
CASE STUDY #2 
Salesman Terminated
CASE STUDY #3 
Employees of non-profit assisted victims of domestic violence 
One posts Facebook comment: “Lydia Cruz, a...
LEGAL IMPLICATIONS
NATIONAL LABOR RELATIONS BOARD 
Signs of Aggressive activity
NLRB 
Why?
NATIONAL LABOR RELATIONS ACT 
Covers most private-sector employees 
“Section 7” rights: 
 guarantees employees the right ...
SOCIAL NETWORKING POLICIES (NLRB) 
Activity may be protected if 
Done on employee’s time and equipment 
Related to terms...
NLRB ON SOCIAL MEDIA POLICIES 
Examples of prohibitions/policies NLRB says can be “overbroad” 
Inappropriate Discussions ...
DRAFTING YOUR SOCIAL MEDIA POLICY 
You CAN prohibit social media postings that: 
Make comments about coworkers or supervi...
Bring Your Own Device Policy (BYOD) 
Benefits 
Employees carry single device 
Convenience/practical response to technolo...
BYOD EMPLOYMENT LAW ISSUES 
Personal Privacy protections 
Computer Fraud and Abuse Act 
Stored Communications Act 
Wage ...
BYOD POLICY 
Broad Authorization to: 
Monitor use and content 
Wipe data upon termination/lost device 
Turn over device...
SOCIAL MEDIA - POST EMPLOYMENT CONCERNS
SOCIAL MEDIA – OWNERSHIP 
Who gets the friends when the employment relationship breaks up?
BEST COMPANY PRACTICES TO PROTECT SOCIAL MEDIA 
Company establishes Account (name and content) 
Structural protection 
Ad...
MOST IMPORTANT: HAVE A POLICY 
Written agreement/policy that clarifies rights and duties 
Blogs, accounts are company pro...
SOCIAL NETWORKS AND RESTRICTIVE COVENANTS 
Nonsolicit of employees 
Nonsolicit of customers 
Cases not well developed
AMWAY GLOBAL V. WOODWARD (E.D. MICH 2010) 
Former Employee Maintained and operated blog 
Blog formed basis of violation ...
ANALYSIS 
Connection (itself) unlikely to be considered violation. 
Would same message conveyed by email or letter be viol...
TAKEAWAYS 
Use Social Media as a tool 
Review your policies regularly 
Be careful with discipline (NLRB) 
Be flexible ...
BEYOND THE WATER COOLER 
The Impact of “Socializing” and Managing Social Media in the Workplace 
Silvia King, FGP Internat...
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Beyond the water cooler

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Social Media in the Workplace

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Beyond the water cooler

  1. 1. BEYOND THE WATER COOLER The Impact of “Socializing” and Managing Social Media in the Workplace Silvia King, FGP International Mark Bakker, Wyche P.A. August 26, 2014
  2. 2. COMMUNICATION & INFORMATION DISSEMINATION REVOLUTION
  3. 3. BACKGROUND FOR HR
  4. 4. SHRM 2012 SURVEY RESULTS: SOCIAL MEDIA IN BUSINESS STRATEGY AND OPERATIONS 40% of companies who responded had a SM policy www.shrm.org/research | twitter@SHRM_Research Of those companies with a policy, 33% indicated taking disciplinary action for violation of the policy
  5. 5. Overall, the majority of companies reported that HR is responsible for creating and enforcing these policies www.shrm.org/research | twitter@SHRM_Research Majority of companies use SM for internal communication and information sharing 55% of companies planned to increase their SM usage over the next 12 months
  6. 6. Statistics Source: Statisticbrain.com “72% of all internet users are now active on social media”
  7. 7. How can you restrict social media at work so that productivity is not impacted and so that the employer has some control? How do you address personal devices at work? How can you protect valuable contacts through social media from being taken by your employees when they leave? When is it acceptable to fire for inappropriate pictures or comments that don’t align with company values? What do you do if you find out that your employees have a secret blog specifically created for complaining? What are the legal implications of using social media in hiring decisions? Basic Questions Mark Bakker?
  8. 8. PRE-EMPLOYMENT CONCERNS
  9. 9. SURVEY: GOGULF.COM
  10. 10. Job Applicant tweeted the following:
  11. 11. Applicant was not hired…
  12. 12. SOCIAL MEDIA – HIRING BEST PRACTICES SM after interview Tool in toolkit Don’t pass on questionable info to decision maker Establish policy and guidelines Conduct training on hiring best practices SHRM “Use Social Media Smartly When Hiring” Steve Bates 3/19/13
  13. 13. SOCIAL MEDIA – HIRING (LEGAL IMPLICATIONS) •Risks False identity/inaccurate info Impermissible subject matter •Limit Risks Third party vendors Separate cyber-vetters from decision makers
  14. 14. SOCIAL MEDIA – ACCESS TO PASSWORDS •Accessing passwords – with permission •Banned in 12 states •Not recommended Fair Game: unsecured, publicly available social media •Accessing passwords – no authorization •Trapp v. DHS •resorting to self-help could expose an employer to civil and possible criminal liability
  15. 15. MANAGING SOCIAL MEDIA IN THE WORKPLACE
  16. 16. CASE STUDY #1 EMT suspended for inadequate report Later, commented that supervisor a “scumbag” and a “17” Employer terminated
  17. 17. CASE STUDY #2 Salesman Terminated
  18. 18. CASE STUDY #3 Employees of non-profit assisted victims of domestic violence One posts Facebook comment: “Lydia Cruz, a coworker feels that we don’t help our clients enough. I about had it! My fellow coworkers how do u feel” Four off-duty employees respond and object to assertion by Cruz Cruz complains to supervisor about being bullied on-line All five employees terminated for “bullying and harassment” of Cruz
  19. 19. LEGAL IMPLICATIONS
  20. 20. NATIONAL LABOR RELATIONS BOARD Signs of Aggressive activity
  21. 21. NLRB Why?
  22. 22. NATIONAL LABOR RELATIONS ACT Covers most private-sector employees “Section 7” rights:  guarantees employees the right to “engage in” “concerted” and “protected” activities with other employees Protected activities include: Discussing wages, discipline, unions Complaining about policies, supervisors Complaining about terms/conditions of employment NLRB counsel: not “new” but “catch up”
  23. 23. SOCIAL NETWORKING POLICIES (NLRB) Activity may be protected if Done on employee’s time and equipment Related to terms/conditions of employment or exercise of NLRA rights Involves “concerted” activity Swearing/name calling may not justify termination Overbroad policies will be scrutinized
  24. 24. NLRB ON SOCIAL MEDIA POLICIES Examples of prohibitions/policies NLRB says can be “overbroad” Inappropriate Discussions Gossip Defamation Disparagement Privacy Confidentiality Restricted Use of Company Name, Address & Logo
  25. 25. DRAFTING YOUR SOCIAL MEDIA POLICY You CAN prohibit social media postings that: Make comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, or harassing That constitutes illegal discrimination or harassment Carry out illegal conduct Are maliciously untrue Specific examples are key Disclaim that not interfering with NLRA rights CLARITY FROM NLRB CASES
  26. 26. Bring Your Own Device Policy (BYOD) Benefits Employees carry single device Convenience/practical response to technology Reduce costs of devices to employer Risks Security concerns Potentially higher IT costs Disaster for discovery in litigation Erosion of personal/business spheres
  27. 27. BYOD EMPLOYMENT LAW ISSUES Personal Privacy protections Computer Fraud and Abuse Act Stored Communications Act Wage & Hour considerations Harassment/hostile work environment Security of confidential information
  28. 28. BYOD POLICY Broad Authorization to: Monitor use and content Wipe data upon termination/lost device Turn over devices for investigations Diminished expectation of privacy Obligation to notify if lost/stolen Require data encryption/password protection
  29. 29. SOCIAL MEDIA - POST EMPLOYMENT CONCERNS
  30. 30. SOCIAL MEDIA – OWNERSHIP Who gets the friends when the employment relationship breaks up?
  31. 31. BEST COMPANY PRACTICES TO PROTECT SOCIAL MEDIA Company establishes Account (name and content) Structural protection Adopt uniform branding, content and style guides Assign employees to administer SM accounts Anticipate separation of employment Reference SM in restrictive covenants Have manager also keep account/password information Take quick action upon separation of employment
  32. 32. MOST IMPORTANT: HAVE A POLICY Written agreement/policy that clarifies rights and duties Blogs, accounts are company property Employee must transfer all account information upon termination Administering SM is part of employee’s job Remember NLRB admonitions: Write policies in pencil rather than in pen
  33. 33. SOCIAL NETWORKS AND RESTRICTIVE COVENANTS Nonsolicit of employees Nonsolicit of customers Cases not well developed
  34. 34. AMWAY GLOBAL V. WOODWARD (E.D. MICH 2010) Former Employee Maintained and operated blog Blog formed basis of violation of nonsolicit provision “If you knew what I knew, you would do what I do” Employee: blogs passive and untargeted Court disagreed: “Common sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation.”
  35. 35. ANALYSIS Connection (itself) unlikely to be considered violation. Would same message conveyed by email or letter be violation? Two critical factors: Who received the message? What is the message? FAMILIAR FRAMEWORK
  36. 36. TAKEAWAYS Use Social Media as a tool Review your policies regularly Be careful with discipline (NLRB) Be flexible –legal context evolving!
  37. 37. BEYOND THE WATER COOLER The Impact of “Socializing” and Managing Social Media in the Workplace Silvia King, FGP International Mark Bakker, Wyche P.A. August 26, 2014

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