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TOP TEN LEGAL ISSUES WITH Copyright 2014 NUMBER 10: Are we friends? FACEBOOK LAW Effective May 11, 2013: The Colorado Social Media and Workplace Law § 8-2-127, C.R.S. The employer may not: • Require an employee to disclose user name or password. • Require an employee to change privacy setting. • Require employee to friend employer. NUMBER 9: Posting complaints about work conditions! FIRST AMENDMENT & ITS LIMITATIONS: As a government, District cannot prohibit or punish employee’s speech as a citizen on matters of public concern whether spoken privately or publicly. Matters of purely private concern to an employee are not protected activities (e.g., personal grievances). Distinction between “public” and “private” concern often blurred. NUMBER 8: Off duty online activities. Off-Duty Work Statute § 24-34-402.5, C.R.S (Unlawful Prohibition of Legal Activities) Although Colorado is an at-will state, § 24-34-402.5, C.R.S, is an exception. • An employer cannot terminate employment for employee engaging in lawful activities off duty, unless… • The restriction on such conduct relates to bona fide occupational requirements; • is reasonable and rationally related to his or her employment activities; • or is necessary to avoid a conflict of interest, or appearance of conflict of interest with employer’s affairs. ADDITIONAL FACTOR: High degree of trust given to responders by public. High level of integrity, self-sacrifice, and dedication expected. GENERAL RULE: If it is a private matter, it is not “protected” speech. Is a statement on FACEBOOK like a statement at a private dinner party? Could be! Some social media sites’ privacy options allow poster to limit who can see/view the post, whereas others allow friends of friends to view a post (basically open to the public to view) May be relevant to determine the employer’s interest in punishing that speech. General Rule… If posting directly relates to employer and employee’s duties, it is less likely to be protected by Colorado Statute. Example: Paramedic properly disciplined for publicly posting on social media that he and his buddies were tired of lifting fat people onto gurneys so he warned that they would not transport fat people at that ambulance service! No First Amendment Rights because personal gripe, and statement was in conflict with his employer’s obligations/business affairs and was directly related to his duties. NUMBER 7: Discrimination issues. • It is becoming common for HR to review Facebook, LinkedIn, and other social media pages of job candidates and current employees. • This practice can be useful, however, districts must ensure that practices do not unlawfully discriminate based on information contained in social media. • Social media posts can become evidence in employment litigation. • Any employees and managers who make discriminatory comments, even in private social media, or use social media to harass employees in a protected class, can result in company liability. NUMBER 6: Recommendations. • LinkedIn offers an opportunity for people to write recommendations. • Supervisors must keep in mind that negative recommendations may result in defamation or other workplace claims. • Positive recommendations can make it difficult for a company to defend against a claim. NUMBER 5: Confidentiality issues. • Third party materials posted to social media site may infringe copyright or trademarks. • Posting photographs and video without a proper release may violate privacy or publicity rights of individuals. • Care must be taken not to violate specific privacy regulations such as HIPAA. NUMBER 4: Defamation issues. • Defamation is publishing something untrue about someone that harmed that person’s reputation. • Some statements can have unintended legal consequences. NUMBER 3: Terms of service. • Review indemnity terms and other terms of service with any account company the district opens. NUMBER 2: District Policies. • Importance of policies and procedures. • Acceptable use of systems. • Make sure employees are aware of obligations not to disclose confidential or proprietary information. • If the district has a Facebook page or Pininterest page, make sure several people are looking at it periodically to see what’s going on. 1. Who owns and controls your content? • Will information you delete continue to be used by your social network? • What are your terms of use? • How to minimize risk. 2. Potential liability due to breach of organization security. 3. Risk associated with social engineering and spoofing attacks against users or fans of the organization in social media presence. 4. Legal consequences of divulgence of confidential information. RECOMMEND: District policy regarding blogs/postings. • Alerts and educates employees to the issues involved. • Forms a basis for discipline if violated. POLICY SHOULD: Prohibit use of district logo/name/ID on any blog to avoid appearance that the person is speaking on behalf of district or that personal opinion is district’s policy. POLICY SHOULD: • Address work related interpersonal relationships (nothing derogatory about fellow employees, no bullying, etc.). • Prohibit any sexually suggestive/demanding posts. • Prohibit any form of illegal harassment of fellow employees. POLICY SHOULD: Explain the possibility of discipline if there is a “direct connection” to employer’s interests or employee’s duties. THEN: ENFORCE IT! Investigate any violations brought to your attention. And the NUMBER 1 Legal issue is: It NEVER goes away!