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Social Media:
Employment and
Professional Liability Pitfalls
Prepared By
Scott Atherton
Introduction
Social Media
Introduction
Introduction
 500 Million – number of people using Facebook
 200 Million – number of people using Facebook from
their mobile phones
 175 Million – number of people using Twitter
 85 Million – number of members of LinkedIn including
executives from every one of the Fortune 500 companies
Introduction
 And if that is not enough . . . numerous dating sites
are keeping our employees very busy during the
day . . .
– Match.com
– eHarmony.com
– JDate.com
– AshleyMadison.com
– Cougarlife.com
Introduction
 Like Us!
 Follow Us!
 Watch Us!
 Connect to Us!
What Is "Social Media"?
 Social Media is defined as "forms of electronic
communication through which users create online
communities to share information, ideas, personal
messages, and other content"
Employer Use
of Social Media
Background Checks
 Type an applicant's name into a search engine
(Google, Yahoo, Bing, Ask), or directly into a Social
Media site (Facebook, Twitter, YouTube, LinkedIn)
 It is quick, easy and FREE!
 Can search from the privacy of your own office or
home any time of day or night
Background Checks
 Find out what applicants are
doing and saying on the Internet
before you hire them
Avoid Land Mines
 Comply with federal and state Anti-Discrimination laws
 Don't use covert methods to access a restricted site
 Employees can discuss the terms and conditions of
their employment under the NLRA
 Don't retaliate!
Pros to Allowing Employees
to Use Social Media at Work
 Promote your community, products and services
 Market your products or services
 Communicating with residents/vendors
 Networking, networking, networking!!
 Shows that your organization is "cutting edge"
and understands technology
Cons to Allowing Employees
to Use Social Media at Work
 Risk of unauthorized disclosure
of confidential and proprietary
information
 Loss of productivity
 Inappropriate conduct and
statements that make the
company look bad
 Risk of infringement of third
party intellectual property rights
Social Media Issues –
How Does All Of This
Affect Employers in 2013?
Employee Privacy Rights
Flexible Standard:
Reasonable expectation of privacy
 Two-Part Test: Subjective and objective
– Whether the employee has a reasonable expectation
of privacy in the area or object to be searched
– Whether the search is reasonable in effect and scope
Employee Privacy Rights
Question: What privacy rights do employees have who
send e-mails from their personal AOL account from their
work computers while at work?
•
Marina Stengart vs. Loving Care Agency, Inc., 990 A.2d
650 (N.J. Sup. Ct., March 2010)
Employee Privacy Rights
Question: What privacy rights do employees have who
send text messages from employer provided cell phones?
•
City of Ontario, California vs. Jeffrey Quon, 529 F. 3d
892 (U.S. Sup. Ct., June 2010)
Monitoring Internet Use at
Work
Question: Are companies permitted to search employee's
computers for Internet usage?
 U.S. vs. Ziegler, 474 F. 3d 1184 (9th Cir. 2007)
Monitoring Internet Use at
Work
Question: Are companies required to search all employees'
computers for Internet usage?
 Doe vs. XYC Corp., 382 N.J. Super. 122 (N.J. Super.
A.D., December 27, 2005)
Monitoring Employee On-Line
Activity Outside Work
 "Lifestyle" Statutes
– Prohibit employers from considering an individual's
off-duty, lawful conduct in making a hiring or firing
decision
– Found in several states (e.g., New York, Colorado,
California and North Dakota)
– Many more states have enacted laws that exclusively
pertain to an individual's use of tobacco products
Monitoring Employee On-Line
Activity Outside Work
 Off Duty Conduct
– Spanierman v. Hughes, 576 F. Supp. 2d 292 (D.
Conn. 2008) – MySpace profile
– Iowa Central Community College President Robert
Paxton – photos
Monitoring Employee On-Line
Activity Outside Work
Monitoring Employee On-Line
Activity Outside Work
Question: Can a public employer fire an employee for
bad-mouthing his or her boss on social media?

NLRB vs. American Medical Response of
Connecticut, Inc., Case No. 34-CA-12576
– The "Facebook Firing" case
Why Organizations Need a
Social Media Policy
 Whether or not your organization has a social media
policy, your employees will use social media
 At a minimum, employees are using social media for
personal use
 54% of U.S. companies claim to ban social media at
work
 But use of social media through mobile phones is
exploding, so even if you block it on the corporate
network, it is only a minor deterrent
Is Social Media Just A Fad?
 Twitter now has over 175 million users,
sending 75 million tweets per day
 Twitter has added over 100 million
members since January 2010
 YouTube users watch 2 billion videos
per day and upload 24 hours of video
every minute
 Facebook's 500 million users? 50%
log-on every day, with average user
creating 90 pieces per month
The Social Media Policy
 The debate of whether or not to have a social media
policy is over – statistics show that a vast majority of
companies recognize the need for such a policy
 But only 29% of companies recently reported having a
social media policy in place
Drafting the Social Media
Policy
 Scope – You must dispel the misconception among
employees that they have the right to do and say
whatever they want, whenever they want
 Generally the policy applies to employees when they are
at work, and whenever they are discussing anything
related to work, regardless of location
Drafting the Social Media
Policy
 Affiliation – Include language that the employee should
not speak on behalf of the company unless authorized to
do so
 Also, should provide that employees – when commenting
on work related matters – must state that the views they
are expressing are their own and not necessarily the
views of the company
Drafting the Social Media
Policy
 Confidentiality – Much of a company's valuable
information is in electronic form (e.g., Wikileaks)
 Businesses need to constantly remind their
employees about the importance of keeping
information confidential
Drafting the Social Media
Policy
• Marketing, Testimonials and Endorsements – Many
social media policies include marketing elements
that may or may not be covered in other policies
• Companies want to be transparent about their
marketing for public relations purposes
• Transparency is required by the Federal Trade
Commission
Drafting the Social Media
Policy
• Non-Disparagement Language – This may or may not
be right for your company - The social media policy
must fit your corporate culture - Can have a chilling
effect on employee speech
• Example of strong non-disparagement language: Sears
Holdings Social Media Policy
Drafting the Social Media
Policy  Additional sections which you may wish to include:
– Correcting Mistakes
– Use of Intellectual Property
– Tweet for the Company on Company Time
 These suggestions are just the beginning – make
sure your policy is comprehensive enough to
cover every situation
Now That You Have A Social
Media Policy . . .
 Employees must sign an
acknowledgement that they received,
read, and understood the policy
 Educate managers about the policy –
get their support – then train the
employees on the policy
 Electronic communications policy –
make sure you have one and it is
clear that employees have no
expectation of privacy when they use
electronic communications systems
Now That You Have A Social
Media Policy . . .
 Consistently enforce the Social Media policy!
 Consider whether any of the following may apply
before disciplining an employee for violating the policy:
– Retaliation or discrimination under Title VII and
state law
– Protected concerted activity under the NLRA
– Whistleblowing under SOX or state law
– Off-duty laws in certain states other than Florida
QUESTIONS?????
Scott W. Atherton, Esq.
Atherton Law Group
561.293.2530
[email protected]