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Business Real Estate Land Use Estate Planning & Taxation Commercial Litigation Healthcare Employment Bankruptcy Family Law TWITTER WHILE YOU WORK: THE LEGAL IMPACT OF SOCIAL MEDIA, SOCIAL NETWORKING AND CLOUD COMPUTING IN THE WORKPLACE DEIRDRE J. KAMBER, ESQUIRE, CHP [email protected] 610.797.9000 ext. 383 Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 1 DEIRDRE KAMBER, ESQ., CHP Areas of Practice: Employment Labor Information Privacy/Information Access School Law Unemployment Compensation, and Healthcare Attorney, admitted in Pennsylvania, New York and U.S. Supreme Court Labor and management representation From outsourcing HR work, to trainer, to litigation Work Website: http://www.flblaw.com/attorney_directory/deirdr e_kamber.asp LinkedIn: http://www.linkedin.com/in/deirdrejkamber Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 2 Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 3 SOCIAL MEDIA, NETWORKING, DATA AGGREGATION, AND CLOUD COMPUTING The workforce faces challenges in technology unlike those we have ever experienced. Businesses are responsible for creating policies, procedures and programs to address employee use. We are responsible for the impact of social media from our client base. We are using cloud computing for data storage, and we are responsible for how our electronic records are stored. We need to be AHEAD of the curve. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 4 OUR AGENDA FOR TODAY Social media, networking and our employees Social media, networking and our clients The impact of cloud computing What does the caselaw say? What do we need to do? Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 5 The average person’s most embarrassing snafu: How he feels about friending his BOSS: Incriminating photos Discovered by a FAMILY member “HELL NO!” Number of people creating unique content on the web: Number of Facebook Friends Most People Have: 85% Between 100 and 300 FAVORITE SITE: FACEBOOK Average number of “tweets” per second: 600 Number of people who consider themselves addicted to social media: 64% Percentage of people who have snooped using Facebook: Number of people He’d or she’d actually call on the telephone: 10 -20 Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 1 in 4 6 Exerpted from “Women’s Health”, 9/2010 Where have we been? Where are we now? Social media is not a fad; it is a multimillion dollar issue for organizations. Look at Dirty Dominos, or United Airlines; what did it cost? It is more important, statistically, to have a virtual office than a real one. WHERE ARE WE? Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 7 News Blogs Articles News Photo Photo Albums Sharing Podcasts Reports Watch Video News Sharing Lunch Social Networks Breaks Message Bulletin Boards Boards Filing/ Tagging Labeling Coffee Chat Breaks Rooms Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 8 Ibibo * Adult FriendFinder * Advogato * Amie Street * ANobii * ASmallWorld * Athlinks * Avat ast.fm * United * Badoo * Bebo * Bigadda * Big Tent * Biip * Black Planet * Blogster * Broadc , Inc. * Youmeo * Zoo.gr * Buzznet * Café Mom * Cake Financial * Care2 * Classmates.com llege Tonight * Couch Surfing * Daily Booth * Daily Strength * Decayenne * Deviant Art * Dis ol2day * DontStayIn * Draugiem.lv * Elftown * Epernicus * Eons.com * Italki * Experience Pr xploroo * Facebook * Faceparty * Faces.com * Fetlife * Filmaffinity * Fledgewing * Flixter * F Fotolog * Friends Reunited * Friendster * Fruhstuckstreff * Fubar * Gaia Online * GamerDN ather.com * Gays.com * Geni.com * Gogyoko *Hi5 * Goodreads * Gossipreport.com * Grono Habbo * Hospitality Club * Imeem * IRC-Galler erNations * Itsmy * Iwiw * Jammer Direct * aixin001 * KIwibox * LibraryThing * Lif nkedIn * Live Journal * Lunar Storm * M eetup.com * Mobikade * MocoSpace * Mouth e Mocha * MOG * Mixi * Jaiku * Multiply * M MyAnimeList * My Church * My Heritage * My L y LOL * My Opera * MySpace * My Year Masza-klasa.pl * Netlog * Nettby * Nexopia * NGO Post * Ning * Odnoklassniki * OKCupid One Climate * One World TV * Open Diary * Orkut * OUT Everywhere * Partner Up * Plaxo Passportstamp * Pingsta * Playahead * Playboy U * Plurk * Present.lv * Qapacity * Quarte Life * Qzone * Ravelry * Renren * ResearchGate * Reverberation * Ryze * Scispace * Shelfa Skyrock * Social GO * Social Vibe * Sonico.com * Soundpedia * Stickam * StudiVZ * Supe Nova.com * Tagged.com * Talent Trove * Talkbiznow * Taltopedia * TraveBuddy.com * Trave Lertspoint.com * Tribe.net * Trombi.com Tuenti.com Tumblr * Twitter * V Kontakte9 * Vam Copyright 2010 (c)*Deirdre J. Kamber, All * Rights Reserved Pirefreaks * Viadeo * Vox * Wakoopa * Wasabi * Wayn * WebBIographies * WeOurFamily WHAT IS SOCIAL NETWORKING? WHAT IS SOCIAL NETWORKING Blogs -- “Entries of commentary on websites” Photo Sharing – “Publishing of user’s digital photos online” Video Sharing – “Video uploading services allowing individuals to upload video clips to an Internet Hosting Website” Tagging (or “Tag”) – “A nonhierarchical keyword” Chat Rooms -- “Primarily used by mass media to describe any form of synchronous conferencing” Message Boards -- “an online discussion site” Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 10 WHAT IS DATA AGGREGATION? Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 11 WHAT IS DATA AGGREGATION? Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 12 WHAT IS DATA AGGREGATION? Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 13 WHAT IS DATA AGGREGATION? http://radaris.com/p/Deirdre/Kamber/ Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 14 WHAT IS DATA AGGREGATION? Employment Law Data aggregation allows for ease of access to information. Twine and Radaris, for example, are search engines that aggregate information. Hospitalization in 1999 Experienced Trainer Vacation in Vegas Center Valley Grandfather with cancer Brandeis University New York June 9, 1972 SHRM Mother Pennsylvania Rugby HIPAA Awardee: Top Twenty Under Forty Religious beliefs: Reform Social Media and Networking Law Politics: financial conservative Single Parent Adjunct Professor Master’s Degree Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved Diversity Fitzpatrick Lentz & Bubba MENSA 15 Facebook WHAT IS CLOUD COMPUTING? Computing in the cloud Online access through a third party to your records, files, training programs, results and other outsourced functions. Pros: It’s not on your server or system Saves space Reduces employee access Cons: It’s not on your server or system You now have a third party to deal with You now have contracts to address and laws to consider (i.e. retention, breach) Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 16 EMPLOYEE ISSUES AND TECHNOLOGY Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 17 EMPLOYEE ISSUES WITH TECHNOLOGY Expectations of Privacy TMI Online Business Relationships 24-7 access to the Internet Third Party Management (Cloud Computing) Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 18 EMPLOYEE ISSUES WITH TECHNOLOGY 45% of employers use social networking sites such as Facebook, MySpace, or Twitter to research job candidates, according to a CareerBuilder.com survey. 35% of employers reported having refused to hire candidates based on content found on those sites. Even the Florida Board of Bar Examiners suggested that bar applicants' web postings may reflect an “applicant's character and fitness not readily observable through the formal interview and application process.” Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 19 EMPLOYER MONITORING AND EXPECTATIONS OF PRIVACY Employees should not expect privacy in their emails or Internet use at the office, or even at home where the workplace is implicated. Employees should not have an expectation of privacy in Social Networking sites, such as Facebook. For example, Social Sentry can automatically monitor employees’ Facebook and Twitter accounts. The cost is between $2 and $8 per employee. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 20 TMI Employers need to be aware with the antidiscrimination laws, now including GINA and other proposed laws (such as GLBT), you want ONLY job-related information. Research via the Web will give you TMI. YOU DON’T WANT THE INFORMATION!!!!! Even if you don’t know that it’s out there, if you have a policy that says you look up Facebook pages, if your employee’s Facebook page includes her breast cancer treatments, you are deemed to have that information. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 21 ONLINE BUSINESS RELATIONSHIPS Just as traditional friendships between boss and employee can be problematic, so too can online relationships. Now, add in: inequal workplace relationships, “defriending,” “posts,” and a lack of control over Internet documents. Clarify the relationship. You must be direct about the nature of your business relationship. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 22 ONLINE BUSINESS RELATIONSHIPS Be social — to a degree. In most offices, there's usually som esocial mingling. The same goes for online friendships. Don’t play favorites. Don’t favor certain employees in the workplace. Keep topics off confidential information. No matter how close you are to pals in the office, you have to resist the temptation to give them the inside scoop. Face the firing line. Sometimes an employee is not performing up to par. You must be this person’s employer first and friend second. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 23 24-7 ACCESS TO THE INTERNET BE ABLE TO USE YOUR ACCEPT-“ABLE” USE POLICIES Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 24 24-7 ACCESS TO THE INTERNET AND ACCEPTABLE USE POLICIES Some internet access is important -- You will lose productivity if you ban everything. Consider what might be relevant for work -- Give your employees the tools that they need to maximize their talents. Are You Working with IT? You should be working with your IT person to check allowing, blocking and monitoring….what do you want to know about? Is your ban effective? Does everyone have smart-phones? Allow Block Monitor Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 25 LITIGATION AND PITFALLS Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 26 A lawsuit, which has been a huge trend upward for: WHAT HAPPENS WHEN THERE’S A DISPUTE? Defamation, false light, IIED, Stored Communications Act violations, etc. An apology (like Dominos or American Airlines) Or an “To H^&* with You” answer …. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 27 Is privacy dead? NO. In Pietrylo v. Hlllstone Restaurant Group, d/b/a Houston's, management discovered that two waiters posted on their MySpace page sexual remarks about management and customers, jokes about the company and references to violence and illegal drug use. After viewing the site, management found the postings offensive and fired the waiters. Ironically, the company's efforts to avoid liability actually resulted in a jury verdict against it. LITIGATION Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 28 The Court found: The offensive postings were located in a private chat room, access to which was restricted only to users who first received and accepted an electronic invitation; Management had not received an invitation from the waiters, but rather used another employee's password (who had been invited) to access the chat room; and There was a dispute as to permissive access. Although management argued it was "authorized" to access the chat room by the employee who provided her ID and password, that employee testified she felt she "probably would have gotten in trouble" if she did not cooperate. LITIGATION Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 29 Quon v. City of Ontario - the U.S. Supreme Court was faced with the question as to whether an employer can review work-phone text messages where the purpose is not to invade the employee’s privacy. Yes or no? Morse v. Mer - exotic dancers advertised their personal talents on Facebook and challenged their employer’s determination that they were independent contractors under the FLSA. Were they? TekSystems v. Hammernick - an employer sued its former employee for breach of restrictive covenants due to LinkedIn communications. Was it a breach? LITIGATION Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 30 LITIGATION Petrovitch Development -- E-mails between a client and attorney are not considered privileged and confidential, if the client writes the messages from a work e-mail account. (SO, if you intend to sue your employer, don’t discuss the suit with an attorney using company e-mai.) Steingart v. Loving Care – N.J. Supreme Court said e-mails on a personal webbased e-mail account accessed from an employer’s computer were private. The decision was contingent on the fact that use of such an account was not clearly covered by the company’s policy, and the e-mails in question contained a standard warning that the communications were personal, confidential, attorney-client communications. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 31 LITIGATION Sousa v. American Medical -- The NLRB says the Company enforced an "overly broad blogging and Internet posting policy" and illegally denied Dawnmarie Souza, an investigatory interview. The company said it canned Souza "based on multiple, serious complaints about her behavior.“ According to the NLRB, Souza "posted a negative remark about a supervisor" after being threatened with disciplinary action when she requested union help. The case was settled. Boulder Valley School District – BVSD searched several students’ cell phones after sexting was discovered. The ACLU stepped in, and the District agreed to revamp its access policy to student phones. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 32 LITIGATION The EEOC is now deciding the impact of incidental information under the GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) through social media. There may be Fair Credit Reporting Act issues with internet investigations. Most webposts are protected if they are anonymous as First Amendment speech. Subpoenas can be effectuated, but are frequently fruitless. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 33 BEST PRACTICES Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 34 BEST PRACTICES: STRATEGIC APPROACH Virtual branding Strategy Proactivity Policies Communication Practices Training Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 35 BEST PRACTICES: BEWARE! If you trust your information to third party vendors, you have less control over your data. TMI can be used against you. Coercion does NOT give consent Be aware of unionizing/organizing language Data breaches are a risk for any computer system. Problems are compounded with a third party. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 36 BEST PRACTICES: YOUR CHECKLIST YOUR AUP IS PROBABLY ALREADY OUT OF DATE Employees’ expectation of privacy changes with the amount of notice and authorization as to monitoring Expectations should be balanced between employee and employer Get yourself trained and make sure that someone is helping you out. Security threats don't just occur in cyberspace. Protect the physical environment of stored data. Don’t sign on for more than you are willing to ACTUALLY DO Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 37 BEST PRACTICES: THIRD PARTIES Have a clear understanding of vendors' procedures to safeguard data, seal leaks and prevent mishaps. You need a clear sense of access, policy, procedure and chain of command in cases of breach. You need to know which laws apply to you, and what happens in cases of breach. You also may want levels of access to information. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 38 Questions? Comments? Deirdre J. Kamber, Esq., CHP [email protected] Fitzpatrick Lentz & Bubba, P.C. Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved 39