Transcript New Jersey`s Medical Marijuana Law

Social Media and
Technology in the
Workplace
The material provided herein is for informational purposes
only and is not intended as legal advice or counsel.
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Charlie Bit My Finger
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What is Social Networking?
• FACEBOOK
• YOUTUBE
– Video sharing network
• Twitter – “Tweeting”
• LinkedIn
– Focus on professional networking
• MYSPACE
– Estimated over 100 million members
• Blogging
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Facebook
• 600 million active users
• 8 new members per second
• 3 billion photos each month
• 50% of users log in everyday
• 60 million status updates per day
• Users average an hour a day on
Facebook
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YouTube
• 35 hours of video added per minute
– 50,000 hours per day
Twitter
• 2010
– 25 billion tweets
– 100 million new users
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Social Media/Technology
• Every aspect of the workplace has been
affected
– Hiring: Can employees use social media for
background checks
– Employee misconduct
• Sharing confidential information
• Harassment
• Off-duty conduct
– Protected Employee Activity
• Privacy issues
• Concerted activity
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Effectively Using Social
Media in the Hiring Process
Presented by:
Keya Denner
Screening With Social Media:
Everyone Is Doing It
• Microsoft recently released research results
(January 2010) showing that 79% of the
surveyed hiring managers and recruiters in
the U.S. had considered online information
about job applicants as part of the hiring
process
• Of those who considered online information,
70% said they have rejected candidates
because of what they found
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Screening Candidates – Why
Use Social Media?
• Get information straight from the source
– Pictures
– Profile
– Comments and background information
• Identify misrepresentations
• Free and easy
• Avoid claims down the road such as
negligent hiring?
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Screening Candidates:
Is It Legal?
• Example
– XYZ Corporation searches all of its
potential candidates on the internet prior
to bringing the individuals in for an
interview. This includes reviewing an
individual’s Myspace and/or Facebook
pages.
– Is this legal? Is it advisable??
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Screening Area of Concern:
FCRA
• Fair Credit Reporting Act
– Requires authorization and disclosure to
applicant prior to using third party to obtain
background information
• June, 2011: FTC approves practices of
Social Intelligence Corp.
– New online background check company
– Retains information in file for 7 years
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Screening Area of Concern:
Protected Status
• Information can illegally “screen” an
applicant out
• Impermissible access to “Protected
Status” of applicant
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What Is a Protected Status?
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Race
Color
Gender
National Origin
Religion
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Age
Disability
Sexual Orientation
Marital Status
Genetic
Information
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Screening Area of Concern:
Discrimination Claims
• Potentially dangerous for employers to
be aware of this information
– E.g. Discrimination Claims
• Failure to Hire
• Disparate Impact Claims
• Claims by Existing Employees (e.g., disability
discrimination—imputes knowledge of medical
condition)
• Knowledge may be seen as basis for
adverse employment action
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Screening Area of Concern:
Lawful Off-Duty Conduct
• Lawful Off-Duty Conduct
– Many states have enacted statutes which
prohibit an employer from disciplining an
employee for engaging in lawful conduct
while away from the employer's premises
– New Jersey: only certain types of off-duty
conduct, such as smoking and drinking
– New York: much broader protection
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Lawful Off-Duty Conduct
• Know your state’s law!
• Courts usually allow broad discretion
where the employer can show that the
off-duty conduct has damaged the
business, hurt the employer's interests,
or is otherwise inconsistent with the
employer's business needs
– Can you prove a direct link between the
conduct and the applicant’s job
requirements?
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Screening Area of Concern:
GINA
• GINA (the Genetic Information
Nondiscrimination Act of 2009)
• Makes illegal the mere acquisition of
genetic information, which is defined
broadly to include, among other things,
information about manifested diseases
of family members
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Screening Area of Concern:
GINA
• How does GINA impact the hiring
process?
– Employers must not discriminate in terms
and conditions of employment based on
genetic information
• For example, an employer must not deny a job
to someone because he or she has a family
history of cancer
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Social Networking – GINA’s
Publicly Available Exception
• What if you inadvertently discover a job
applicant’s genetic information?
– Social networking websites (or blogs, etc.)
fit under GINA’s publicly available
exception if access to the website does not
require permission of an individual or is
not limited to individuals in a particular
group
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Publicly Available Exception:
Limited Access?
• Is Access Limited?
– An employer who requires all applicants to grant
the employer access to protected Facebook pages
(i.e., required the applicant’s permission to access)
would not be able to take advantage of this
exception if it acquired genetic information
– However, the exception would apply to an
employer who learned genetic information about
an applicant as the result of a general internet
search for information about the applicant
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Publicly Available Exception:
Active v. Inadvertent
• Active search v. Inadvertent discovery
– GINA’s publicly available exception was
intended to protect an entity that
inadvertently obtains genetic information and
not an entity that is actively searching for
genetic information.
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GINA – Lessons Learned
• Tip: Don’t actively search for
candidate’s genetic information on the
web!
• Tip: Like any other protected class, be
cognizant of suspicious timing and
mindful that documentation regarding
any legitimate performance issues is
recommended before making any
adverse hiring decision
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Screening - Recommendations
• Pre-interview – NEVER!!!
– Review social media sites only after
interviewing candidate and only if
interested in candidate
• Post-interview – WITH CAUTION
– Be consistent:
• Use of social media should be done above
board, without any misrepresentations, and
consistently for each and every job candidate
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Screening - Recommendations
• Document what is considered (and,
therefore, what is not)
• Verify!
– If from 3rd party site
– HR should perform this function (as
integrated part of background check
process)
– Prohibit hiring managers from performing
function independently
• WRITTEN POLICY?
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References
• The New Paradigm: Casual references
on LinkedIn and other networking sites
• Risks:
– Defamation (if negative or untrue)
– Misrepresentation
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References
• Guidance
– Supervisors: “No reference” rule applies to
social media  refer to HR!
– Human Resources: Be aware of the danger
in relying upon informal social media
references
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iPhone Screenshots
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DOL - Timesheet
• Available in English and Spanish
• “a timesheet to help employees independently track
the hours they work and determine the wages they
are owed.”
• “THE NEW TECHNOLOGY IS SIGNIFICANT
BECAUSE, INSTEAD OF RELYING ON THEIR
EMPLOYERS’ RECORDS, WORKERS CAN NOW
KEEP THEIR OWN RECORDS.”
• Tracks hours, meals and break times
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Concerted Activity
• Section 7 of the National Labor Relations Act:
– “Employees shall have the right to selforganization, to form, join or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and shall also have the right to
refrain from any or all of such activities…”
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Concerted Activity
• October 2010 NLRB complaint against
American Medical Response
• Fined employee for violating employee
handbook
– Cannot depict the company “in any way” on Internet
– Prohibits “disparaging or discriminating remarks
when discussing the company or the employee’s
supervisors, co-workers and/or competitors
• Employee criticized supervisor on Facebook
because he refused to allow her to get help from
her Union in responding to custom complaint
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Concerted Activity
• NLRB Complaint Alleged
– Section 7 rights violated by handbook
policies
– Policies overbroad and inappropriately
limits employees in discussing working
conditions
• Reuters Twitter Case
• Arizona Daily Star Twitter Case
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Monitoring and Regulating
Social Media in the Workplace
Presented by:
Chris Elko
The Legal Land Mines of
Social Media
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Posting Harassing Comments about Co-Workers
Inconsistent Discipline/Supervision
Unfair Labor Charges
Defamation
Privacy rights
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Headline: Social Media Specialist
Fired Over Tweet
• “We start summer hours today. That means
most of the staff leave at noon, many hit the
links. Do you observe summer hours? What do
you do?”
• Specialist terminated
– It was sent from the organization’s office Twitter
account
– The organization partly funded by tax dollars
• Social Media used in lieu of casual conversation
– For Employers, casual = dangerous
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Crossing the Line
Pietrylo v. Houston’s Restaurant
• Server fired for statements made on personal MySpace
account
• Account created to “talk about all the crap/drama/and
gossip occurring in our workplace, without having to
worry about outside eyes prying in”
• Access by “invitation only” and given to select
coworkers
• Coworker with access, either voluntarily or through
coercion, gave login information to senior mangers who
later accessed the forum
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Crossing the Line
Pietrylo v. Houston’s Restaurant (continued)
• Unrestricted and readily available content found
on blogs and public social networking profiles
continues to be fair game
• However, restrictions on access may curb
employers’ abilities to use information and
subject employers to unintended violations of
law
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To “Friend” or Not to “Friend”
• Supervisors “friending” subordinates
– Another layer of supervision?
– Another way to incur liability!
• No policy against “friending” employees,
but is it a good idea?
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Remember…
Employers
get in trouble for
what they DON’T
do.
As a Supervisor,
you have a duty
to act.
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You look at your employee’s
profile and you see…
• An employee is harassing another employee on
Facebook
– Does your Policy require supervisors to report
harassing behavior
•Even if an employee says “please don’t say
anything”
• What if you don’t see the harassing content?
– Can knowledge of harassment be imputed on
you?
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You look at your employee’s
profile and you see…
• That your employee is participating in a
Susan G. Komen Race for the Cure on
behalf of her mother.
– Does simply knowing this information
violate the law?
– How can this information hurt a
supervisor?
– Gina Violations? Spreading information?
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You look at your employee’s
profile and you see…
• Your employees are trashing you and/or
the Company!
– Step No. 1 – Cool down!
• What does your policy say?
• Avoid “retaliation”
– FMLA, ADA, Title VII, OSHA and the
NLRA all prohibit retaliation!
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Case Law Update
• Knauz
– BMW salesman complained on Facebook about
the food and drinks served to customers as part of
a promotion
• Stated that it inhibited his commissions
• Hispanics United
– Employee posted comments criticizing fellow
employees
• When employees responded, they were terminated for
harassment
• Protected Conduct!
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LinkedIn
• Can a positive “Recommendation”
prevent you from terminating an
employee?
• Can a Professional’s LinkedIn account
violate a No-Solicit Agreement?
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Confidentiality
• Are you waiving/violating a privilege?
– Attorney client
– Doctor patient
• HIPAA
– Nurses fired for facebook postings
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Other Important Issues
• Doe v. XYC Corp.,
(2005)
– 3rd Party Liability
when an Employer is
on notice of
pornographic use
– Policies must be
enforced!
• Discovery
– PA: McMillen
• No expectation of
privacy for Facebook
or MySpace accounts
– NY: Romano
• “Think before you
speak, or in this case,
before you type.”
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Product Endorsements
• Estimated that 2 million local businesses
have Facebook pages
• Top Businesses on Facebook
1. Coca Cola
2. Starbucks
3. Oreo
31,700,000 fans
23,500,000 fans
21,800,000 fans
53,000 per day
20,000 per day
29,000 per day
4. Red Bull
21,000,000 fans
18,700 per day
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FTC Guidelines on Product
Endorsement
• What does it mean for employers?
– Liability for false or unsubstantiated statements about your
company’s services or products that are made by your
employees on blogs or social networking sites
• Duty to Disclose?
– Employees who endorse their employer’s products have a duty
to disclose the employment relationship at the time of the
endorsement or testimonial … even when it is posted on a site
that is NOT maintained by the employer
http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
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FTC Guidance
• Reverb Communications – public relations/marketing
firms for video game developers
• Had employees write positive reviews on iTunes
about its clients apps
• Employees did not disclose relationship between
employees/Reverb and app developer
• Consent Order
– Remove reviews from iTunes
– Refrain from misrepresenting “the status of any user of
endorser of a product or service, including but not limited to,
misrepresenting that the user or endorser is an independent
user or ordinary consumer of the product or service.”
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Technology Policy
Presented By:
Annmarie Simeone
Why Do You Need A
Technology Policy?
• Avoid “practice” becoming your policy
• Protect your business
– (IP, Security, Confidential Information,
Marketing)
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Why Do You Need A
Technology Policy?
• Positive promotion of your
company
• Discipline and Termination
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Why Do You Need A
Technology Policy?
• Avoid wasted time and resources
• Litigation/Compliance Strategies
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Best Practices And Strategy For
Preparation of Technology Policies
• Determine the Company’s past and current practice(s)
• Talk to IT, Managers, outside consultants to give input
on the above
• Interview your employees
• Any industry-specific requirements for records
maintenance or other compliance issues?
• Talking to teams or individuals who use technology
everyday can help the company figure out the type of
policy provisions needed
• Same as to your employees. What do they use
technology for? How often? What are their needs?
What are their “wants”?
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Best Practices And Strategy For
Preparation of Technology Policies
• Consult with Counsel
• Draft, review, revise, refine
• Distribute
• Obtain signed Acknowledgements
• Training (particularly managers)
• Enforcement
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What Will Your Technology
Policy Apply To?
• Present guidelines and rules for use of:
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–
–
–
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Voicemail
Computers
E-mail/Instant Messaging
Internet
Social Media
• Potential other areas:
– Cell phones
– Laptops, PDAs, remote access
– Cameras/Camera Phone/Recording
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Critical Underlying
Principles:
• Technology is Company property
• Employee has no expectation of privacy in
using Company property
• Monitoring
• Discipline
• Disclose nature of data and communications
that will be accessible to the company (the
Stengart issue)
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Key Elements Of Technology
Policy
• Create “sample” lists of permitted uses and
prohibited uses of technology (not all-inclusive)
– Sets expectations; on notice
– Clearly explains the rules of the game
– Alerts employees of possibly unknown risks to
Company and employee
– Lays groundwork for discipline
BUT NOTE: that nothing in the technology
policy limits or changes the employer’s at-will
employment policy
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Key Elements Of Technology
Policy
• Technology is provided for business use
• Do you want to prohibit all personal
use? Or have limited, partial access or
unlimited personal use?
• Prohibit social networking during work
hours, unless for employer/business
purposes (LinkedIn)
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Key Elements Of Technology
Policy
• Statement that all Company policies
apply equally to use of Company
technology
• Protect confidential and proprietary
information
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Key Elements Of Technology
Policy
Other “content” rules/”netiquette”
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•
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•
•
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Be professional
Avoid abbreviations
Act as if this is a traditional hard copy communication
Manage your tone (use of emoticons, capitalization)
Always spell check and proofread
Use an appropriate subject line description
Be mindful of your audience
Only “cc” as needed
Don’t overuse the “urgent” tag
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Key Elements Of Technology
Policy
• Guidelines prohibiting sites and
overuse of technology which can slow
down the computer system/internet
• Use of web-based e-mail accounts for
work purposes, on Company
equipment, through Company servers
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Key Elements Of Technology
Policy
• There are certain guidelines well suited
particularly for social media:
– Employee is personally responsible for what he/she
posts
– Employee must state that he/she is not speaking for
the employer in personal social networking
– If employee posts about Company or it’s
products/services, he/she should state that he/she is
a Company employee
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Key Elements Of Technology
Policy
• Comply with intellectual property rights and
all laws, including copyright laws
• Do not use Company logos or trademarks
without written permission
• Postings must not violate Company’s policies,
including Code of Conduct
• Honor netiquette rules
• “Friending” with subordinates or HR
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Other Considerations:
• Issue and enforce policy prohibiting derogatory,
defamatory or disparaging communications about
the Company or the employees, but include a
“disclaimer” (nothing in the policy is intended to
violate any rights protected by law, including right
to engage in concerted activity)
• “Disparagement” may be protected
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State law – lawful off-duty conduct
Federal Constitutional Law
NLRA; CBAs
Whistleblower laws
EEO laws against retaliation
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Distribute Policy and Train
Employees
• Distribute policy (revised handbook or
stand alone)
• Obtain signed acknowledgement
• Train employees
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Training
• All employees
• Special provisions for management
• Review all provisions of policy in detail
• Explain risks to company and to the
employee (disclosure, confidentiality,
federal and state laws)
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Training
• Disengaging from “a battle”
– Maintain professional tone
– Don’t use angry “CAPS” or emoticons or
exclamation points
– Treat complaints as you would if you
received in hard copy
– Protect confidentiality; remember HIPAA
concerns
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Training
• Avoid potentially informal
“evaluations” or “glowing” e-mails as
they may contradict formal review
• What you share doesn’t disappear. No
true “delete” button and the Internet
has a long memory.
• Practice what you preach
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Summary - These Are The Important
Takeaways About Your Technology
Policies:
 Implement and enforce an appropriate technology
policy.
 Insure policy is broad enough to cover ever-evolving
technology and update as needed
 Use the policy to protect your Company and its assets
 Use the policy to set clear expectations for employees
consistent with the law and company culture and needs
 Get acknowledgements
 Reinforce at-will employment policy
 Conduct training
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Question & Answer Session
Thank you for coming!