Transcript Social Media: Overview

The North Central Washington
Technology Alliance
presents
Facebook 201 for Business
June 21, 2011
Paul S. Kube, JD
OGDEN MURPHY WALLACE, PLLC
Social Media: Overview
•
Facebook – Social Networking website.
•
MySpace – Social Networking website.
•
Twitter - Free social networking and
micro-blogging service that enables its users
to send and read messages known as tweets.
2
Social Media: Overview
•
LinkedIn – A business-oriented social
networking site mainly used for professional
networking. Employers can list jobs and search
for potential candidates.
•
YouTube – Video-sharing website that
allows users to upload, view, and share usergenerated video clips.
•
Flickr - An image and video hosting
website and online community that allows users to
share photographs and videos.
3
Social Media: Overview
•
Blogs – A contraction of the term
“weblog,” is a type of website, usually
maintained by an individual with regular
entries of commentary, description of
events, or other material such as graphics
or video. The ability for readers to leave
comments in an interactive format is an
important part of many blogs.
4
Legal Issues for Employers
• Potential use in threatened or
ongoing litigation.
• Potential liability for torts committed
by employees.
You could be held liable for defamation,
invasion of privacy, or negligence if an
employee posts negative statements about
another person or a competitor.
• Potential liability for harassment or
discrimination.
5
Legal Issues for Employers
• Trade secrets and intellectual property
infringement.
Disclosure of certain trade secrets can
destroy the “confidential” status of the
information.
• Trade libel.
Misstatements or misrepresentations about
a competitor could lead to claims of trade
libel.
6
Legal Issues for Employers
• Employment actions.
Employees may try to sue you for wrongful
termination or discrimination if their
employment is terminated because of a
posting that references personal aspects of
their life (e.g. marital status or sexual
orientation)
7
“Dooced”
• UrbanDictionary.com defines
“dooced” as “getting fired because
of something that you wrote in your
weblog”
Blogger Heather Armstrong coined the
phrase after getting fired from her job for
writing about work and coworkers on her
blog, dooce.com.
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“Dooced”
• A former Wal-Mart cashier says he was fired for
joking on his MySpace page that the company’s
average IQ would increase if a bomb were dropped
on the company’s stores.
• A probationary officer with the Trotwood (Ohio) Police
Department (who was already under investigation for
using a Taser on a pregnant woman in the police
lobby) was fired for posting photos of evidence from
police investigations on MySpace. Specifically, the
pictures involved marijuana and money seized in a
drug bust, and a cruiser’s speedometer indicating a
speed of 100 mph.
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“Dooced”
• In April 2009, two Domino’s Pizza employees were
fired and face felony charges for food tampering after
they posted YouTube videos, which included the
employees passing gas on salami, sneezing on
ingredients, stuffing cheese up their nostrils and then
using those items on food.
10
“Dooced”
• Microsoft terminated an employee after he posted a
picture on his personal blog of Apple computers being
delivered to Microsoft’s headquarters.
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“Dooced”
• A Texas teacher was fired for posting topless
photographs of herself on Flickr.com.
• A CNN Editor was fired after tweeting she had
“respect” for the recently deceased Sayyed
Mohammed Hussein Fadlallah, who has been
connected to several bombings where hundreds of
Americans were killed.
12
Additional Considerations with
Social Media
• Loss of productivity.
• Social engineering and phishing. This can
result in data or identity theft. Most people
don't divulge details to strangers but it is
amazing to see what personal information can
be gleaned from social networking sites.
• These sites are attractive to hackers and
spammers.
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Practical Implications
Social networking tools come with
significant legal risks. Employers
need to take immediate steps to
develop and implement policies that
address the multiple issues
generated by the use of social
networks among employees.
14
Practical Implications
• Employers first need to decide whether they will
allow employees to access social networking sites at
any time using company networks and/or
equipment.
• This decision should be made with consideration
into the current company culture.
15
Practical Implications
• If access is authorized, employers need to strike an
appropriate balance, consistent with organizational
culture, between allowing or encouraging employee
usage of these networks, and the legal risks that
their use in the workplace presents.
16
Practical Implications
Additional considerations by the employer
include, but are not limited to, the following:
• How far should the policy reach?
• If social networking is prohibited, how will
it be monitored?
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Practical Implications
• If social networking is permitted, should
use be limited to work related conduct
only?
• If social networking is permitted, should
personal use be allowed under any
circumstances?
18
Practical Implications
• Do you want the employee to identify
with your business when networking
online?
• How will you define “appropriate
business behavior?”
19
Practical Implications
• How will social networking interact with
broader harassment, discrimination, and
technology policies?
• Is there an obligation to bargain
technology changes with a union?
• How will training be conducted?
• Should the employer establish a team to
monitor social networking?
20
Workplace Policies to Address
Social Media Concerns
• It is no longer sufficient to rely on an old
e-mail policy.
• Your approach to drafting a policy depends
on the benefits, risk and needs of your
company.
• As to private employees, there is no such
thing as free speech in the workplace. This
should be clearly communicated to private
employees in your employee handbook.
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Workplace Policies to Address
Social Media Concerns
Consider the following when creating your policy:
• prohibit disclosure of confidential or proprietary
information;
• prohibit the disclosure of the name of the
business in personal websites or social
networking sites (except professional sites such
as LinkedIn);
• State that you can and will monitor and
investigate all use of electronic communications
systems, devices, and platforms;
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Workplace Policies to Address
Social Media Concerns
• have employees acknowledge that the
employer has the right to monitor e-mails
and internet usage on company
computers;
• prohibit the use of the company's
trademark;
• prohibit the use of defamatory, harassing
or disparaging language;
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Workplace Policies to Address
Social Media Concerns
• prohibit content that violates the law (e.g.
obscenity);
• prohibit writing or commenting on content
that would constitute a violation of any
other policies or standards of conduct
applicable to employees;
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Workplace Policies to Address
Social Media Concerns
• reiterate that employees can be
disciplined, up to and including
termination, for inappropriate
use of electronic
communications, devices, and
platforms;
• identify a point person for
questions or issues about social
media use.
25
Social Media Training
Employees should receive training that
addresses some or all of the following
issues:
• Electronically transmitted messages
cannot truly be deleted and can be
searched for and printed out weeks or
months after they are sent;
• E-mails and text messages sent from a
personal account to a coworker’s
personal or company account are
covered by your anti-harassment policy;
26
Social Media Training
• Off-duty or outside of work conduct aimed at
coworkers (e.g., posts on a social network) can
still be investigated as potential harassment
because of the workplace connection between
the two individuals;
• Posts on social networking sites may be viewed
by persons outside the employee’s network of
friends and may result in the employee being
reported for harassing or inappropriate conduct;
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Social Media Training
• Social networking sites can and will be
searched by you for many legitimate reasons,
and you can see and read what employees
are posting;
• Accepted workplace behavior and etiquette
standards should be observed, even in
cyberspace communications;
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Social Media Training
• Whether employees would want
their mother or spouse/partner to
see their post should be
considered before they click
“send”; and
• Employees’ postings on social
networking sites can affect both
current and prospective
employment.
29
Internet Searches and Surveillance
of Current Employees
• There are few legal restraints on employer
internet searches of current employees.
• Such searches are usually motivated by a
legitimate business concern.
e.g. Third parties harmed by an employee's
use of the internet may commence litigation
against the employer claiming negligent
hiring, training or supervision; Employer may
discover that employee posted proprietary or
confidential information.
30
Internet Searches and Surveillance
of Current Employees
• Be careful of electronic “voyeurism.” This can
create an appearance of surveillance toward
protected collective worker activities and can
be used to prove employer animus toward
those activities.
• Also the timing of an employer's discovery of
personal information (such as a medical
condition) could support an employee's claim
that subsequent adverse employment action
was motivated by discovery of that personal
information.
31
Internet Searches and Surveillance
of Current Employees
Again, have a workplace
computer policy in place,
conditioning employee's
use on the right of the
employer to monitor,
otherwise the employer
risks a violation of privacy
claim.
32
Issues Relating to Union Employees
Protected “Concerted Activities.”
• The National Labor Relations Act (NLRA)
gives workers a federally protected right to
form unions, and it prohibits employers from
punishing workers – whether union or
nonunion – for discussing working conditions
or unionization.
33
Issues Relating to Union Employees
• The National Labor Relations Board (NLRB)
recently filed a complaint against a company that
terminated an employee after she criticized her
supervisor on Facebook.
• Under the terms of the settlement, the company
agreed to revise its overly-broad rules to ensure that
they do not improperly restrict employees from
discussing their wages, hours and working conditions
with co-workers and others while not at work, and that
they would not discipline or discharge employees for
engaging in such discussions.
34
Issues Relating to Union Employees
• Surveillance. Violations of the NLRA have been
found even where an employer takes steps to surveil
employees in open areas on or near its property.
While the National Labor Relations Board has not
yet ruled on a case of Facebook surveillance,
Facebook gives employers similar ability to view
whether the employee is a fan of union sites or
other political sites associated with unions, and
whether the employee is friends with other
employees who are known to be union activists.
35
Issues Relating to Union Employees
• Requiring employees to maintain Facebook
pages and/or friend employers unlawfully
creates an impression of surveillance, which
would violate section 8(a)(1) of the NLRA.
• The test is whether an employee would
“reasonably assume from the statement in
question that his union activities had been
placed under surveillance.” U.S. Coachworks,
334 NLRB 955, 958 (2001), enforced, 53 Fed.
Appx. 171 (2002).
36
Issues Relating to Union Employees
• Cases of the like arise in situations where an
employer representative has said something to
an employee indicating that they have been
monitoring union activity.
Examples: Daikichi Sushi, 335 NLRB 622, 623
(2001) (employer told employee it was an “open
secret” that employee joined union); Fred'k Wallace
& Son, 331 NLRB 914 (2000) (employer indicated
knowledge of private conversation between
employee and union organizer)
37
Legal Risks Associated with a
“Social Media” Termination
Discrimination.
• An employee terminated due to use of social
media may argue that they are victims of
discriminatory enforcement.
• The proverbial “unringing of the bell” poses
difficulty to the employer. You will be forced to
argue that while you knew of the information
related to a protected characteristic, it did not
sway your employment decision.
38
Legal Risks Associated with a
“Social Media” Termination
Retaliation.
• If an employee is opposing a
discriminatory practice on a
social networking site or blog,
subsequent adverse action by
the employer could lead to a
claim of retaliation.
39
Legal Risks Associated with a
“Social Media” Termination
Whistleblowing.
• Employers need to consider whether the
information posted by the employee
could be considered a “report” of a
violation of the law.
40
Legal Risks Associated with a
“Social Media” Termination
Protected “Concerted Activity.”
• Discussed above. Before taking adverse
action against an employee for social
media postings, you should consider
whether those postings represent an
effort to organize a union or relates to a
labor dispute.
41
Legal Risks Associated with a
“Social Media” Termination
First Amendment Right to Free Speech.
• Public employees may enjoy some First
Amendment protections if the content of
the post constitutes a “matter of public
concern.”
42
Internet Searches of
Prospective Employees
“Cybervetting.”
• A recent Microsoft survey indicates
79% of human resource professionals
engage in this practice of viewing
social network sites to obtain
information about a job applicant.
• 70% reported they have rejected a
candidate based on information
obtained online about a candidate.
43
Internet Searches of
Prospective Employees
• Factors relating to age, color, gender,
disability, age, national origin, and sexual
preference may be inadvertently discovered
during cybervetting.
• In the face of a claim that an illegal hiring
decision was subsequently made on one or
more of these factors, it would be helpful to
have a policy for screening applicants in a
uniform manner.
44
Internet Searches of
Prospective Employees
Factors to consider include:
• listing the social media sites that will be
searched for each applicant;
• listing the lawful information about applicants
desired from every search;
• having a neutral third party that will conduct the
search;
• prohibiting the organization from “friending” an
applicant to gain access to nonpublic social
networking profiles.
45
Internet Searches of
Prospective Employees
• Potential exists for claims of negligent hiring if
employer fails to cybervet. Time will only tell
whether the increasing use and relative ease of
cybervetting will be deemed by the courts to
create a due diligence obligation on the part of
an employer to cybervet a prospective
employee.
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Internet Searches of
Prospective Employees
• The Fair Credit Reporting Act sets national
standards for employment screening.
• The law applies only to background checks
performed by an outside company, called a
“consumer reporting agency,” and does not
apply when an HR representative informally
Googles an applicant's name.
Note, however, that if you retain an outside
agency to conduct the background search,
including an online investigation, then
consent would be required.
47
The Stored Communications Act
(“SCA”)
• Enacted to ensure the confidentiality of
electronic communications.
• Section 2701 states that an offense if
committed by anyone who “(1) intentionally
accesses without authorization a facility
through which an electronic communication
service is provided, or (2) intentionally exceeds
an authorization to access that facility, and
thereby obtains...[an] electronic communication
while it is in electronic storage in such system.”
48
The Stored Communications Act
(“SCA”)
Example:
In City of Ontario v. Quon, 529 F.3d 892 (9th Cir. 2008)
the Ninth Circuit held that an employer violated the
SCA by providing transcripts of an employee police
officer's personal text messages sent on a device paid
for by the employer. (The United States Supreme
Court ultimately reversed the decision on other
grounds.)
49
The Stored Communications Act
(“SCA”)
Example:
In Pietrylo v Hillstone Restaurant Group, 2009 WL
3128420 (D. N.J. 2009) a federal district court affirmed
a plaintiff's verdict, including punitive damages, in a
case where the employer violated the Stored
Communications Act when two of its managers
accessed a “chat group” on an employee's MySpace
page account without having received authorization
from the MySpace member to join the group, but
instead had coerced another employee to give them
the password.
50
The Stored Communications Act
(“SCA”)
Example:
In Crispin v Christian Audigier (C.D. Cal. May 26,
2010) the court held that emails sent from a plaintiff's
social networking site designated as private are
protected and not discoverable under the SCA. The
court remanded the case for a determination as to
whether the plaintiff's wall postings and comments
were similarly set as “private” and also protected by
under the SCA.
51
The Stored Communications Act
(“SCA”)
Lesson:
If an employee makes an effort to protect
the social media information as private
and an employer gets to the information
in a way without the employee's consent,
liability could attach.
52
Social Media as Evidence in Litigation
In EEOC v. Simply Storage Management LLC
et al., 270 FRD 430 (2010) an Indiana District
Court ruled that employees suing for sexual
harassment and claiming emotional distress
must turn over the content on their Facebook
and MySpace pages as evidence, even if those
pages are designated as “private” or “locked.”
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Thank You
for Watching!
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