School of Risk Control Excellence

Employee Use of Social Media The Impact of the Virtual World on Disciplining and Firing Employees Laura Lapidus, Esq.

EPL Risk Control Consulting Director

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Disclaimer

The information, examples and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. CNA is a registered trademark of CNA Financial Corporation. Copyright © 2011 CNA. All rights reserved.

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Social Media – What is it?

 Web 1.0 • Permits only passive use – viewing of content  Web 2.0 • Content generated by user • Users can interact with each other  Social Media • A subset of Web 2.0 which includes • Facebook® • MySpace® • • Linkedin® YouTube® • • • Twitter®* Blogs Texting *All of the trademarks listed above are the property of their respective owners.

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Some Employment Risks of Social Media/Networking

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Employee misuse

• discrimination/harassment/retaliation • • • • violation of credit and other laws disclosure of confidential information damage to a company’s reputation defamation 

Employer monitoring

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Risk of Discrimination/Harassment/Retaliation Allegations

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Any conduct that harms employees, the working relationship or the working environment may create a hostile work environment.

• • Text messages and “tweets” Posts/pictures on a Web site such as Facebook ® or Myspace ® 

Negative posts can be viewed as retaliatory

• a negative recommendation could raise retaliation issues

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Risk of Wrongful Termination

 Some states prohibit taking any disciplinary action against an employee for engaging in lawful activity outside of work  Whistleblower complaints of potentially illegal activity are protected under both federal and state laws  Inaccurate and/or misleading information • Ex. – Shirley Sherrod and the Dep’t of Agriculture  Recommendations of employees • If you recommend an employee online, it may be difficult to later defend poor performance/termination

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Monitoring Employees’ Social Media Usage

 An employer can read posts on a public site • No expectation of privacy  An employer can’t gain access to a password protected site through coercion or other illicit means May violate the Federal Stored Communications Act  An employer can’t prohibit employees from discussing wages and working conditions • Under the NLRA, employees have a federally protected right to discuss wages and working conditions whether or not they are unionized  Beware of state privacy laws

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Managing Social Media Risks

 Every company needs policies to address social media • Current email and/or internet policies will suffice only if they address social media • Either update them or create a separate social media policy • Blocking social media is not the solution, although it may be part of the solution • You still need policies to address employees’ conduct on their non-company computers/smart phones  For a sample policy outline http://www.workplaceprivacyreport.com/uploads/file/ELECTRONIC% 20COMMUNICATIONS(1).pdf

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Last but not least – TRAIN!

 Make sure you train your employees regarding • risks of social media • company’s policies regarding social media