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A Legal and Practical Primer on Development & Maintenance of Social Media Policies and Related Issues Richard I. Greenberg Jackson Lewis LLP 666 Third Avenue New York, New York 10017 www.jacksonlewis.com What We Will Discuss Today Overriding Issues Recruitment and hiring Employee privacy Employee discipline for social media use Best practices for employers/suggested policy language Key elements of effective social media and electronic communication policies 2 Overriding Issues May a company base a hiring decision on content about the candidate on the Internet? May a company discipline or terminate an employee for what they say or do on the Internet? Should employers consider allowing company blogs? If so, how do they monitor content? Can employers monitor public sites? 3 Potential Legal Claims Arising From Employer Monitoring of Social Media Discrimination Negligent referral Wrongful termination Invasion of Privacy Miscellaneous Discrimination Employer viewing of applicant’s personal information on social networking/blogging site may trigger protections of anti-discrimination laws. Sites may contain information regarding age, race, national origin, disabilities, sexual orientation, religion, genetic information, political activities, criminal background and other protected characteristics. Difficult for employer to prove it did not rely upon observed information. Even if not unlawful, risk of relying on inaccurate or outdated information. Negligent Referral Facebook®, LinkedIn®, and Twitter® allow users to post recommendations from their employers - Employee expects detailed favorable recommendation. - Favorable on-line reference may conflict with employee performance evaluations. - Negative online recommendation may be the basis for defamation claim. Wrongful Termination Potential First Amendment speech claims by public sector employees. Potential Sarbanes Oxley violation where employee reports unlawful conduct online and is terminated. Potential National Labor Relations Act violation where employee complains in blog about company practices regarding pay, working conditions, etc. Potential discrimination concerns. Potential anti-retaliation violation where employee terminated for complaining in blog that manager treats blacks differently than whites. The National Labor Relations Act The NLRA affords employees (even those who are not unionized) the right to engage in “concerted activity.” This includes the right to discuss the terms and conditions of their employment (and even to criticize their employers) with coworkers and outsiders. A concerted activity is action engaged with, or on the authority of, other employees and not solely by and on behalf of the employee alone. Not all concerted activities are protected by the NLRA; only those that are engaged in for the purpose of collective bargaining or other mutual aid or protection. The National Labor Relations Act (Con’t.) In The Guard Publishing Company, d.b.a. The Register Guard, 351 NLRB No. 70 (2007), the NLRB held an employer does not violate the NLRA by maintaining a policy prohibiting employees from using the employer’s email system for nonjob-related solicitation. The Board drew a distinction between personal announcements (for sale notices) and “group” or “organizational” postings such as union materials. Other personal use by employees may be allowed, so long as it is not on behalf of a group. The Board’s holding sends a clear signal that absent a statutory basis for an asserted employee right to use employer email systems for union organizational purposes, and in the absence of disparate treatment, no weighing of employer and employee (or union) interests is necessary to reach a result. Employers prevail. The National Labor Relations Act (Con’t.) Recently, the National Labor Relations Board’s General Counsel filed a complaint against a company for firing an employee for criticizing her supervisor on Facebook and for maintaining a policy preventing employees from depicting the company “in any way” on social media sites. The case eventually settled. According to the NLRB’s press release, “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.” While this case generated buzz because of its connection to Facebook, its legal theories derived from well-established labor law principles regarding overbroad policies affecting employees’ rights to engage in protected concerted activity. Can an Employer Legally Decide Not to Hire a Candidate Based on a Review of Social Networking Sites? Yes, so long as the employer does not violate state or federal discrimination laws, or other state statutes which prohibit the use of certain kinds of information. There is no prohibition against using information that an applicant places in the public domain. However, use of protected demographic information such as, race, gender, national origin, age, and pregnancy among others, is prohibited in hiring decisions. Best Practices for Social Media Review Use a neutral searcher to filter information. Do searches consistently. Document them. Use objective criteria. Determine how the information found is relevant to the job. If employment decision is made based on information found, maintain records according to state and federal law. Obtain consent or at the least advise on the subject. Do not pretext. Proposed Maryland legislation regarding passwords looms. Recent Story Appropriate Policies to Protect the Organization Why the need? To protect the organization. To define appropriate usage. To provide support for employment decisions. But – balance against the organization’s culture. Key Policy Elements Consider Company philosophy – business. No expectation of privacy. All social media usage subject to monitoring. Employees must abide by non-disclosure and confidentiality agreements/policies. Only individuals officially designated may speak on behalf of the Company. Key Policy Elements (Con’t.) “Bloggers Beware” - Require a disclaimer: “The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.” Employees should avoid defamatory comments when discussing the employer, superiors, co-workers, products, services and/or competitors. Company policies governing corporate logos, branding, and identity apply to all electronic communications. Employees must comply with company policies with respect to their electronic communications, such as policies prohibiting harassment and standards of conduct. Consequences - company reserves the right to take disciplinary action if the employee's communications violate company policy. Key Policy Elements (Con’t.) Do not prohibit employees from discussing terms and conditions of employment. If allowed at work, time spent social networking/blogging/texting should not interfere with job duties. Remind employees that off-duty conversations can have significant workplace affects. Limit management authority to provide references. Avoid “Big Brother” image while protecting the Company and its employees. Obtain a signed acknowledgment of the policy. Advertising If employees encouraged to “sell” the company on company social media sites, ensure compliance with FTC regulations. Key is to avoid misrepresenting “employee views” as “public views.” 18 Internal Blogs and Similar Sites Many of the same considerations apply. What is scope of permitted use? Additional obligation to monitor and remove improper conduct. 19 Disseminate and Reinforce Policy A social media policy should be distributed to all employees in: Employee Handbooks. Policy manuals (as a stand-alone policy). Paycheck reminders. Annual or more frequent email reminders. Employee acknowledgments of receipt for all of the above.