Transcript EMPLOYMENT LAW COMPLIANCE FOR CREDIT UNIONS

Presented by:
Christine S. Keenan
Social Media is here to stay
And
Ignoring it may put you at risk
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Social Networking Sites
 Facebook, My Space, Instagram
Business Networking Sites
 LinkedIn
Online Media
 YouTube, NetFlix
Microblogs
 Twitter
Chat Rooms
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Social media has overtaken porn as
the number 1 activity on the web.
64% of workers admit to using the
Internet for personal purposes during
work hours
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77% of workers who have a Facebook
account use it during work hours
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60% of online purchases are made
during work hours
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65% of YouTube viewers watch
between 9 to 5
http://bitsandpieces.us/2011/01/20/hardly-working/
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Why 8 hours
of work is
not enough
Workers
Admit to
Wasting
3 hours each
Day
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Attitude toward social media content
 15% said that if their employer did something
they did not agree with, they would comment
about it online
 27% said they do not consider the ethical
consequences of posting comments, photos or
videos online
 37% said they rarely or never consider what
their boss or colleagues would think
 42% of corporate compliance officers have
disciplined employees for activities on
Facebook, Twitter or LinkedIn
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If the employer does not have access
or is prohibited from access to a
particular site ….
PROCEED WITH CAUTION!!!
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Prohibits access to electronically stored
communications where access is not
authorized
Prohibits an “authorized user” from
exceeding their authority to access
electronic communications
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Two employees created a MySpace page to air
grievances against their employer
The site was password protected and other
employees were invited to join -- but not
managers
Manager asked another employee to give her
login ID and password
Creators were fired for damaging employee
morale and for violating the restaurant's "core
values"
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Court upheld jury’s verdict finding
employer liable for violations of the
SCA
Central issue was that the manager
coerced an employee into giving him her
password information to access the
MySpace page
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Pilot maintained a website with critical
commentary about the airline’s management
practices. In order to access it, one
needed a username.
A VP obtained access to the site using two
employees’ user names, with their
permission
But …. one of the employees had never
actually accessed the site
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Court found that the VP was liable
because the employee was not a “user”
even though he had been given the ability
to access the website
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Louisiana just passed the Personal Online
Account Privacy Protection Act – effective
August 1
Employers cannot request or require employees
or job applicants to disclose any username or
password that allows access to personal online
accounts
Applies to education institutions and students
as well
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You can require information to access an
employer provided device or account
You can still require employees to cooperate in
internal investigations, i.e. showing you
personal content (still can’t require username)
Nothing prohibits voluntary self-disclosing (so
long as it is not in response to an employer
request)
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Do NOT force or ask employees for their
login or password information
Do NOT attempt to seek access to pages
or profiles that are blocked, marked
private, or by invitation only that you do
not have permission or access to
Only act on information voluntarily given
to you or information available to general
public
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Employees may post sensitive or
confidential information online,
resulting in potential liability for the
employer
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Clinic employee read an acquaintance’s
medical file and learned that she had an STD
Employee told another employee, and the
information somehow ended up on a MySpace
page
Dismissed patient’s invasion of privacy claim
because the clinic had blocked MySpace
during work hours and, therefore, the page
could not have been created during work
hours
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Fire Department employee took a picture
with his phone of a computer screen of a
911 call
Photo included callers name, address and
phone number and reason for her call
Employee was terminated and termination
was upheld
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Create strict policies forbidding posting
of patient or customer information on
social network sites
Educate employees on such policies and
the threat of invasion of privacy
litigation
Block employees’ access to social
network sites while at work
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Employers are prohibited from taking
Adverse Employment Actions
 Firing
 Failure to Hire
 Failure to Promote
“Because of” someone’s protected status
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Race
Color
Religion
Age (40 and over)
Sex (including pregnancy)
National Origin
Citizen Status
Veteran Status
Physical or Mental Disability
Sickle Cell Anemia
Protected Genetic Information
Any other basis prohibited by law
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 Learning from social network site that applicant
or employee is part of a protected class
 Ex: Applicant’s profile picture shows that he is African
American
 Learning medical or genetic information about an
employee or applicant
 Evaluating information found on these sites in a
different way for different applicants
▪ Ex: Disregarding a picture on a male applicant’s profile
of him drinking, while using it as a basis not to hire a
female applicant
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An employer cannot treat similarlysituated employees differently:
 Only considering applicants with a social
network profile
 Checking social networking sites for some
applicants/employees but not all
 Using leisure activities as a basis for
decision-making
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Philadelphia Police Department allowed white police
officers to operate Domelights.com, a racist website
The officers allegedly posted racially offensive
comments while on duty and off duty
The Police Department managers were alleged to
have ignored complaints about the website
Case settled for $152,000 plus injunctive relief
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Employee posts, statuses, pictures, or tweets
about another employee
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Employee posts or comments on other employees’
“Walls,” pictures, statuses, tweets, etc.
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Harassing messages or chats during the workday
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Harassing groups or pages about an employee
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Comments or posts on a company-sponsored
Facebook or Twitter page
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Plaintiff brought hostile work
environment claim because of another
employee’s racial comments on a
Facebook picture
Court found there was no evidence that
the company condoned the use of
Facebook and that employer had
attempted to block access to Facebook
during work hours
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Supervisor maintained a MySpace account showing the
corporate label, had pictures of employees in seductive poses,
and exchanged inappropriate MySpace messages with other
female employees
There was no evidence that any of the women on the
supervisor’s site were offended or unwilling to be featured on
the site
“However inappropriate it may be…the site was something that
an employee had to go out of his or her way to view, and not
pervasive in the workplace environment.”
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A member of the football team had made
various Facebook postings on another’s
page making fun of the employee and her
boyfriend
The court found there was no connection
between the postings and the plaintiff’s
employment.
The court also took note of the fact that
there was no evidence that the Facebook
page was viewed or posted in the
workplace
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Employers cannot take a materially
adverse employment action against an
employee
Because the employee complained about
or took advantage of the protections
afforded under certain laws.
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EEOC Charges
Union Activities
OSHA
FLSA
FMLA
ERISA
Bankruptcy
Worker’s Compensation
Jury Duty
Whistleblower
Any other basis prohibited by law
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Employee complaints on Facebook pages
or Tweets about harassment or
discrimination may be considered
protected activity
Morse v. JP Morgan Chase & Co.: Employee’s Facebook post
about her wages and overtime on her Facebook page were not
not considered a complaint for purposes of a retaliation claim
when employee was just “blowing off steam.”
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Supervisor comments on social networking sites may be
deemed retaliation
 Ex: Bar worker in Pittsburgh filed an EEOC Charge alleging
sexual harassment. A week later, the employee found
threatening comments on the tavern owner’s Facebook page
that she alleged were aimed at her in retaliation for filing
charge.
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Supervisors “unfriending” an employee after the employee
engaged in protected activity may lead to claims of
retaliation
Employee complaints on Facebook pages or Tweets about
harassment or discrimination may be considered
protected activity
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Facebook comments can be protected
 Are they on a matter of public concern?
 Is the employee acting as a private
individual on a private matter?
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Is there a legitimate government
interest that outweighs the right?
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Child Protective caseworker made disparaging
remarks about clients on Facebook (complaining
that they were on public assistance and had
expensive cars and flat screen TVs)
She identified her job and her employer
Facebook posts were forwarded to HR who
conducted an investigation and determined that
her status as a neutral appraiser had been
compromised
Court upheld termination based on legitimate state
need
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Newly elected county clerk fired some
employees who supported his opposition
Plaintiff posted on Facebook, “my heart goes
out to the ladies in my office that were told by
letter they were no longer needed … It’s sad.”
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New clerk got lots of criticism as a result of
Facebook post so he terminated the employee
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Court said the message was a matter of public
concern and termination was unlawful
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Several employees of sheriff’s office
“liked” the challenger candidate
Employees were not re-appointed to
their position after the election
Court said that “liking” a candidate for
local election is protected speech – it’s
like a sign in the yard …
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Deputy Police Chief posted a Confederate flag
image on Facebook and wrote, “It’s time for the
second revolution” shortly after 2012 presidential
election.
He took the post down after one hour.
Facebook was limited to friends and family.
He did not identify his employer.
But, post made it to the news media and the media
identified him as a police officer of the university.
Employer, Clayton State University, demoted him.
Court upheld the termination on the basis that the
police department had an interest in maintaining
good working relationship with the public
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Employer, Clayton State University,
demoted him.
Court upheld the termination on the
basis that the police department had an
interest in maintaining good working
relationship with the public
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First grade teacher posted a comment on
Facebook in which she stated, “I’m not a
teacher – I’m a warden for future
criminals.”
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Protests by parents ensued …
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School fired the teacher for the comment
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Court upheld the termination as the
comments were not protected speech
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Employer must compensate employees for all time spent
for the employer’s benefit
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May include blogging or posting if it is work-related
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Chao v. Gotham Registry - liable for overtime even though
unauthorized and against company policy because same
type of work as during regular hours
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In 2011, the DOL introduced the "DOL-Timesheet" app.
The app “is a timesheet to record the hours that you work
and calculate the amount you may be owed by your
employer.
It also includes overtime pay calculations at a rate of one
and one-half times (1.5) the regular rate of pay for all
hours you work over 40 in a workweek."
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OSHA has an application that “combines heat index data
from the U.S. National Oceanic and Atmospheric
Administration with the user’s location to determine when
outdoor workers should take protective measures.”
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Gives all employees (including those
NOT represented by a union)
certain rights to engage in concerted
activities
for the purpose of collective bargaining
or other mutual aid.
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Employees seeking to improve the terms and
conditions of employment through blogging or
social networking activity may be protected
Employee conduct disparaging, criticizing, or
critiquing an employer or its business can be
protected activity, so long as the remarks bear
a nexus to employee interests or working
conditions and are not egregious in nature .
Extremely disparaging remarks are not
protected.
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Konop v. Hawaiian Airlines, Inc.
 An employee’s blogging about his company’s
management and president may constitute
“concerted activity” and trigger federal
labor law provisions
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 Complaint alleged that the ambulance service illegally
terminated an employee who posted negative remarks about
her supervisor on her FaceBook page
 The complaint also alleged that the company maintained and
enforced an overly broad blogging and internet posting policy
▪ The company’s policy prohibited employees from making
disparaging remarks when discussing the company or
supervisors with another and also prohibited employees
from depicting the company in any way over the internet
without company permission
 Case settled
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The NLRB brought a charge against Build.com
 Employee, who was not represented by a union, was
allegedly terminated in retaliation for posting
comments about her employer on FaceBook, which
drew more negative comments from her “friends”
 The parties settled shortly after the claim was
brought
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In January 2012, NLRB General Counsel issued a
memorandum regarding social media sites:
 Some case studies found violations of the NLRA, some
not
 Is “liking” a comment protected activity?
▪ Yes, where the posting furthered discussions that begun at work
▪ Sparked a collective dialogue that elicited a response . . . over
important terms and conditions of employment
 Board has upheld policies with specific examples of
inappropriate postings
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Employer terminated employee who posted
complaints regarding employer’s withholding of
taxes
ALJ found concerted activity because one
employee hit “Like”
Conduct was protected even though employee
called supervisor an “A****”
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Employee terminated for making disparaging
comments about a competitor
ALJ said it was not concerted activity
He also made disparaging comments about a
company picnic, but ALJ made no finding about
these posts
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Employee criticized the performance of her coworkers and indicated an intent to raise her
concerns with manager
 One of the criticized co-workers made a post
on Facebook responding to the criticism and
inviting others to respond
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Four other employees responded and the
dispute escalated
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Employer fired the five employees who were
commenting on Facebook
NLRB found that the terminations were
unlawful because the employees were engaging
in concerted activity
Court found the employees were preparing to
defend their performance
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Dissemination of Confidential Information
 Trade secret or proprietary information
▪ Posting of information about new products, customer lists,
inventions, employee pay information, etc.
▪ Leaking marketing/pricing strategies or battlefield plans
 Securities law violations
▪ Unlawful release of information in advance of an initial public
offering
▪ Material misstatements could result in Rule 10b-5 violations
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▪ Former employee posted formulas of DSNI’s
nutritional supplements, costs of manufacture,
and labeling costs of the supplements
▪ Court granted employer’s motion for a
preliminary injunction, finding irreparable harm
to DSNI
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Consider Neutral Reference Policies – are
you violating them on LinkedIn?
Twitter, Facebook, etc.
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Searching social networks for information
during a background check could violate
the FCRA if job seekers are not informed
that you will conduct such a search
 This requirement applies only to third-party
agencies
 If the recruiter or hiring manager, or other
internal representative, conducts the
background check, the employer is not required
to notify the job seeker
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Title VII requires covered employers to
maintain all records associated with
employment decisions for a period of
one year.
If you use social network information
during the hiring process, maintain the
records of such use.
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In the Casey Anthony murder trial, a potential
juror was dismissed during the selection, or voir
dire phase, after reportedly posting the jury
instructions on his Facebook page.
This juror also allegedly joked online: "book coming
soon. lol."
http://blog.lawinfo.com/2011/05/18/facebook-affects-casey-anthony-trial-jury-pool/
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Galveston County Judge granted a lawyer a oneweek continuance because of a death in the
attorney’s family.
The lawyer’s partner asked the judge to extend
the continuance to one-month.
Judge denied the request: “I knew from her
bragging on Facebook that she had been partying
that same week.”
M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).
www.abajournal.com (July 31, 2009)
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Galveston County Judge read that attorney posted
on Facebook “Bond reduction. Joy.” – anticipating a
favorable ruling bond ruling in a criminal case.
Judge posted, “Joy postponed.”
M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).
www.abajournal.com July 31, 2009
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Social media offers many benefits but also
many risks, and its relationship with your
company should be based on the specific needs
of the organization
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 79% of employees use social media at work
for business reasons
 47% of employers use social networking
sites to look at candidate profiles.
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 Inexpensive and efficient method for gathering
information about applicants and employees
 Tool
to advertise employment opportunities,
recruit, and connect with existing and potential
customers and employees
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Bankruptcy
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Criminal Records
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Credit Reports
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 Only check social media sites for some applicants
and not others
 Evaluating information differently for each applicant
 Considering leisure activities
 Looking for and considering protected status
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 Have a policy for social networking background
checks
▪ Determine whether you will use social media
screening in the hiring process
▪ Outline what you are looking for when accessing the
sites
▪ Apply consistently
 Limit screening to a few well-trained individuals
 Have non-decision maker conduct search and
filter information
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 Do not consider illegal criteria
 Be upfront
▪ Do not ask job applicants for passwords or other
login credentials
▪ Do not try to gain access to a candidate’s profile
indirectly
▪ Do not send a Facebook friend request to the
candidate without disclosing the real reason for
the request
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Business decision each employer must make
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Benefits and risks
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77.7% of major U.S. companies check
employee e-mail, internet, phone calls,
computer files, or videotape them at work
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63% of companies monitor internet activity
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47% store and review employee e-mail
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Almost 30% monitor social media use
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Monitoring Usage—CONSISTENCY!
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Blocking Sites
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Prohibiting Smart Phones
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Disciplinary Actions
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Prohibit/permit/encourage
use
resources to access social media
of
company
 If prohibit – how to monitor
 If permit – limitations
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Reserve employer discretion to monitor employee
activity
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Clearly state prohibited conduct
 disclosure of trade secrets, trademark, copyright or
other confidential, proprietary non-public information.
 use of company equipment to disseminate any electronic
communication that defames, threatens, or harasses
Provide the policy is not intended or to interfere
with activity protected by the NLRA
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Clearly indicate that violations of the policy may subject
the employee to immediate disciplinary action, including
termination
Clearly indicate that equipment and electronic systems
are the property of the company and there is no right of
privacy with respect to any electronic communication sent
using company systems, and that the company may at any
time for any reason monitor electronic communications
Warn employees they may be held legally responsible for
the content of such communications if it violates the law
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As a general rule, employers may read most
employee workplace communications.
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E-Discovery
 Lawyers have caught on to the craze and
learned that a wealth of information exists in
social media
 Discovery requests are now specifically aimed
at social network sites
 Requests for documents reflecting public
statements could include Twitter tweets,
postings on Facebook, and blogs
 Spoliation issues
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Implement a written policy regarding social
communications/networking
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Do not ask employee for login/password information or to
show you his/her or another employee’s profile/page
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Only act on information that is voluntarily given to you,
publicly available, or that you are able to see through your
own or company profile
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Keep records of all social network research used during
the hiring and firing processes
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Update anti-harassment and client/patient privacy policies
to include violations for conduct on social network sites
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Block or restrict employee access to social
networking sites during the working hours
Standardize the process for evaluating
employee and applicant profiles on social
networking sites
Irrelevant information or information
pertaining to an employee or applicant’s
protected status should be screened and
filtered before it reaches the decision maker
Apply anti-social networking and other conduct
policies equally
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Encourage supervisors to not friend
subordinates
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Educate employees on company policies and
dangers associated with social networking sites
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Train employees on policies
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Remind employees that LinkedIn
recommendations can violate neutral reference
policy
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The Kullman Firm: A Trusted Resource in Labor and Employment Law