presented by: christine s. keenan. social media is here to stay and ignoring it may put you at risk

LEGAL PROBLEMS WITHSOCIAL MEDIA IN THE WORKPLACE

Presented by:Christine S. Keenan

http://www.kullmanlaw.com/index.asp

PART ONETHE LEGAL PITFALLS


Do You Have To AcceptThis Friend Request?

Social Media is here to stay

And

Ignoring it may put you at risk


The Kullman Firm: A Trusted Resource in Labor and Employment Law

Social Media and Technology

Social Networking Sites Facebook, My Space, Instagram

Business Networking Sites LinkedIn

Online Media YouTube, NetFlix

Microblogs Twitter

Chat Rooms


Social Media by the Numbers

Social media has overtaken porn as the number 1 activity on the web.

64% of workers admit to using the Internet for personal purposes during work hours

77% of workers who have a Facebook account use it during work hours

60% of online purchases are made during work hours

65% of YouTube viewers watch between 9 to 5

http://bitsandpieces.us/2011/01/20/hardly-working/



Why 8 hours of work is not enough

WorkersAdmit toWasting3 hours eachDay



Attitude toward social media content 15% said that if their employer did something

they did not agree with, they would comment about it online

27% said they do not consider the ethical consequences of posting comments, photos or videos online

37% said they rarely or never consider what their boss or colleagues would think

42% of corporate compliance officers have disciplined employees for activities on Facebook, Twitter or LinkedIn

WHAT ARE THE LEGAL RISKS?



Password Protected Sites

If the employer does not have access or is prohibited from access to a particular site ….

PROCEED WITH CAUTION!!!


Stored Communications Act

Prohibits access to electronically stored communications where access is not authorized

Prohibits an “authorized user” from exceeding their authority to access electronic communications


Pietrylo v. Hillstone Restaurant Group Two employees created a MySpace page to air

grievances against their employer

The site was password protected and other employees were invited to join -- but not managers

Manager asked another employee to give her login ID and password

Creators were fired for damaging employee morale and for violating the restaurant's "core values"


Pietrylo v. Hillstone Restaurant Group

Court upheld jury’s verdict finding employer liable for violations of the SCA

Central issue was that the manager coerced an employee into giving him her password information to access the MySpace page


Konop v. Hawaiian Airlines, Inc.

Pilot maintained a website with critical commentary about the airline’s management practices. In order to access it, one needed a username.

A VP obtained access to the site using two employees’ user names, with their permission

But …. one of the employees had never actually accessed the site


Konop v. Hawaiian Airlines, Inc.

Court found that the VP was liable because the employee was not a “user” even though he had been given the ability to access the website


Recent Legislation

Louisiana just passed the Personal Online Account Privacy Protection Act – effective August 1

Employers cannot request or require employees or job applicants to disclose any username or password that allows access to personal online accounts

Applies to education institutions and students as well


Personal Online Account Privacy Protection Act

You can require information to access an employer provided device or account

You can still require employees to cooperate in internal investigations, i.e. showing you personal content (still can’t require username)

Nothing prohibits voluntary self-disclosing (so long as it is not in response to an employer request)


Lessons

Do NOT force or ask employees for their login or password information

Do NOT attempt to seek access to pages or profiles that are blocked, marked private, or by invitation only that you do not have permission or access to

Only act on information voluntarily given to you or information available to general public


Invasion of Privacy

Employees may post sensitive or

confidential information online, resulting in potential liability for the employer


Yath v. Fairview Clinics, N. P.

Clinic employee read an acquaintance’s medical file and learned that she had an STD

Employee told another employee, and the information somehow ended up on a MySpace page

Dismissed patient’s invasion of privacy claim because the clinic had blocked MySpace during work hours and, therefore, the page could not have been created during work hours


Palleschi v. Cassano

Fire Department employee took a picture with his phone of a computer screen of a 911 call

Photo included callers name, address and phone number and reason for her call

Employee was terminated and termination was upheld


Lessons from Yath

Create strict policies forbidding posting of patient or customer information on social network sites

Educate employees on such policies and the threat of invasion of privacy litigation

Block employees’ access to social network sites while at work


Employment Discrimination

Employers are prohibited from taking Adverse Employment Actions Firing Failure to Hire Failure to Promote

“Because of” someone’s protected status


What Are The Protected Classes?

Race Color Religion Age (40 and over) Sex (including pregnancy) National Origin Citizen Status Veteran Status Physical or Mental Disability Sickle Cell Anemia Protected Genetic Information Any other basis prohibited by law


Discrimination Issues

Learning from social network site that applicant or employee is part of a protected class Ex: Applicant’s profile picture shows that he is African

American

Learning medical or genetic information about an employee or applicant

Evaluating information found on these sites in a different way for different applicants▪ Ex: Disregarding a picture on a male applicant’s profile

of him drinking, while using it as a basis not to hire a female applicant


Disparate Treatment Issues

An employer cannot treat similarly-situated employees differently: Only considering applicants with a social

network profile Checking social networking sites for some

applicants/employees but not all Using leisure activities as a basis for

decision-making


Guardian Civic League v. Philadelphia Police Dep’t.

Philadelphia Police Department allowed white police officers to operate Domelights.com, a racist website

The officers allegedly posted racially offensive comments while on duty and off duty

The Police Department managers were alleged to have ignored complaints about the website

Case settled for $152,000 plus injunctive relief


Hostile Work Environment or Harassment

Employee posts, statuses, pictures, or tweets about another employee

Employee posts or comments on other employees’ “Walls,” pictures, statuses, tweets, etc.

Harassing messages or chats during the workday

Harassing groups or pages about an employee

Comments or posts on a company-sponsored Facebook or Twitter page


Hostile Work Environment


Amira Jabbar v. Travel Servs.

Plaintiff brought hostile work environment claim because of another employee’s racial comments on a Facebook picture

Court found there was no evidence that the company condoned the use of Facebook and that employer had attempted to block access to Facebook during work hours


Urban v. Capital Fitness

Supervisor maintained a MySpace account showing the corporate label, had pictures of employees in seductive poses, and exchanged inappropriate MySpace messages with other female employees

There was no evidence that any of the women on the supervisor’s site were offended or unwilling to be featured on the site

“However inappropriate it may be…the site was something that an employee had to go out of his or her way to view, and not pervasive in the workplace environment.”


Summa v. Hofstra University

A member of the football team had made various Facebook postings on another’s page making fun of the employee and her boyfriend

The court found there was no connection between the postings and the plaintiff’s employment.

The court also took note of the fact that there was no evidence that the Facebook page was viewed or posted in the workplace


Retaliation

Employers cannot take a materially adverse employment action against an employee

Because the employee complained about or took advantage of the protections afforded under certain laws.


Protected Activity

EEOC Charges Union Activities OSHA FLSA FMLA ERISA Bankruptcy Worker’s Compensation Jury Duty Whistleblower Any other basis prohibited by law


Protected Activity?

Employee complaints on Facebook pages or Tweets about harassment or discrimination may be considered protected activity

Morse v. JP Morgan Chase & Co.: Employee’s Facebook post about her wages and overtime on her Facebook page were not not considered a complaint for purposes of a retaliation claim when employee was just “blowing off steam.”


Acts of Retaliation?

Supervisor comments on social networking sites may be deemed retaliation

Ex: Bar worker in Pittsburgh filed an EEOC Charge alleging sexual harassment. A week later, the employee found threatening comments on the tavern owner’s Facebook page that she alleged were aimed at her in retaliation for filing charge.

Supervisors “unfriending” an employee after the employee engaged in protected activity may lead to claims of retaliation

Employee complaints on Facebook pages or Tweets about harassment or discrimination may be considered protected activity


First Amendment and Public Employees

Facebook comments can be protected Are they on a matter of public concern? Is the employee acting as a private

individual on a private matter?

Is there a legitimate government interest that outweighs the right?


Shepherd v. McGee

Child Protective caseworker made disparaging remarks about clients on Facebook (complaining that they were on public assistance and had expensive cars and flat screen TVs)

She identified her job and her employer

Facebook posts were forwarded to HR who conducted an investigation and determined that her status as a neutral appraiser had been compromised

Court upheld termination based on legitimate state need


Mattingly v. Milligan

Newly elected county clerk fired some employees who supported his opposition

Plaintiff posted on Facebook, “my heart goes out to the ladies in my office that were told by letter they were no longer needed … It’s sad.”

New clerk got lots of criticism as a result of Facebook post so he terminated the employee

Court said the message was a matter of public concern and termination was unlawful


Bland v. Roberts

Several employees of sheriff’s office “liked” the challenger candidate

Employees were not re-appointed to their position after the election

Court said that “liking” a candidate for local election is protected speech – it’s like a sign in the yard …


Duke v. Hamill

Deputy Police Chief posted a Confederate flag image on Facebook and wrote, “It’s time for the second revolution” shortly after 2012 presidential election.

He took the post down after one hour. Facebook was limited to friends and family. He did not identify his employer. But, post made it to the news media and the media

identified him as a police officer of the university. Employer, Clayton State University, demoted him.

Court upheld the termination on the basis that the police department had an interest in maintaining good working relationship with the public


Duke v. Hamill

Employer, Clayton State University, demoted him.

Court upheld the termination on the basis that the police department had an interest in maintaining good working relationship with the public


In the Matter of the Tenure Hearing of Jennifer O’Brien

First grade teacher posted a comment on Facebook in which she stated, “I’m not a teacher – I’m a warden for future criminals.”

Protests by parents ensued …

School fired the teacher for the comment

Court upheld the termination as the comments were not protected speech


Wage and Hour

Employer must compensate employees for all time spent for the employer’s benefit

May include blogging or posting if it is work-related

Chao v. Gotham Registry - liable for overtime even though unauthorized and against company policy because same type of work as during regular hours


Wage and Hour

In 2011, the DOL introduced the "DOL-Timesheet" app.

The app “is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.

It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek."


Not to Be Outdone…

OSHA has an application that “combines heat index data from the U.S. National Oceanic and Atmospheric Administration with the user’s location to determine when outdoor workers should take protective measures.”


National Labor Relations Act

Gives all employees (including those NOT represented by a union)

certain rights to engage in concerted activities

for the purpose of collective bargaining or other mutual aid.



Employees seeking to improve the terms and conditions of employment through blogging or social networking activity may be protected

Employee conduct disparaging, criticizing, or critiquing an employer or its business can be protected activity, so long as the remarks bear a nexus to employee interests or working conditions and are not egregious in nature .

Extremely disparaging remarks are not protected.



Konop v. Hawaiian Airlines, Inc. An employee’s blogging about his

company’s management and president may constitute “concerted activity” and trigger federal labor law provisions


AMR of Conneticut

Complaint alleged that the ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her FaceBook page

The complaint also alleged that the company maintained and enforced an overly broad blogging and internet posting policy

▪ The company’s policy prohibited employees from making disparaging remarks when discussing the company or supervisors with another and also prohibited employees from depicting the company in any way over the internet without company permission

Case settled


Build.com

The NLRB brought a charge against Build.com

Employee, who was not represented by a union, was allegedly terminated in retaliation for posting comments about her employer on FaceBook, which drew more negative comments from her “friends”

The parties settled shortly after the claim was brought


NLRB Memorandum In January 2012, NLRB General Counsel

issued a memorandum regarding social media sites:

Some case studies found violations of the NLRA, some not

Is “liking” a comment protected activity?▪ Yes, where the posting furthered discussions that begun at work▪ Sparked a collective dialogue that elicited a response . . . over

important terms and conditions of employment

Board has upheld policies with specific examples of inappropriate postings


Triple Play Sports Bar and Grille

Employer terminated employee who posted complaints regarding employer’s withholding of taxes

ALJ found concerted activity because one employee hit “Like”

Conduct was protected even though employee called supervisor an “A****”


Karl Knauz Motors, Inc. and Robert Becker

Employee terminated for making disparaging comments about a competitor

ALJ said it was not concerted activity

He also made disparaging comments about a company picnic, but ALJ made no finding about these posts


Hispanics United of Buffalo, Inc.

Employee criticized the performance of her co-workers and indicated an intent to raise her concerns with manager

One of the criticized co-workers made a post on Facebook responding to the criticism and inviting others to respond

Four other employees responded and the dispute escalated


Hispanics United of Buffalo, Inc.

Employer fired the five employees who were commenting on Facebook

NLRB found that the terminations were unlawful because the employees were engaging in concerted activity

Court found the employees were preparing to defend their performance


Trade Secrets and Financial InformationDissemination of Confidential

Information Trade secret or proprietary information▪ Posting of information about new products, customer lists,

inventions, employee pay information, etc.▪ Leaking marketing/pricing strategies or battlefield plans

Securities law violations▪ Unlawful release of information in advance of an initial

public offering▪ Material misstatements could result in Rule 10b-5 violations


Dynamic Sports Nutrition, Inc. v. Roberts

▪ Former employee posted formulas of DSNI’s nutritional supplements, costs of manufacture, and labeling costs of the supplements

▪ Court granted employer’s motion for a preliminary injunction, finding irreparable harm to DSNI


Defamation

Consider Neutral Reference Policies – are you violating them on LinkedIn?

Twitter, Facebook, etc.


Fair Credit Reporting Act

Searching social networks for information during a background check could violate the FCRA if job seekers are not informed that you will conduct such a search This requirement applies only to third-party

agencies If the recruiter or hiring manager, or other

internal representative, conducts the background check, the employer is not required to notify the job seeker


Recordkeeping

Title VII requires covered employers to maintain all records associated with employment decisions for a period of one year.

If you use social network information during the hiring process, maintain the records of such use.


Employee Risks

http://facebookcraze.com/wp-content/uploads/2010/06/funny-facebook-fail-boss-pervy-status-comment-lol.jpg


Employee Risks


Employee Messes

http://thefacebookfired.files.wordpress.com/2010/11/kevincolvin.jpeg


Judicial Risks

In the Casey Anthony murder trial, a potential juror was dismissed during the selection, or voir dire phase, after reportedly posting the jury instructions on his Facebook page.

This juror also allegedly joked online: "book coming soon. lol."

http://blog.lawinfo.com/2011/05/18/facebook-affects-casey-anthony-trial-jury-pool/

http://blog.lawinfo.com/2011/05/18/facebook-affects-casey-anthony-trial-jury-pool/


Judicial Risks

Galveston County Judge granted a lawyer a one-week continuance because of a death in the attorney’s family.

The lawyer’s partner asked the judge to extend the continuance to one-month.

Judge denied the request: “I knew from her bragging on Facebook that she had been partying that same week.”

M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).www.abajournal.com (July 31, 2009)

http://www.abajournal.com/


Judicial Risks

Galveston County Judge read that attorney posted on Facebook “Bond reduction. Joy.” – anticipating a favorable ruling bond ruling in a criminal case.

Judge posted, “Joy postponed.”

M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).www.abajournal.com July 31, 2009

http://www.abajournal.com/

PART TWOBEST PRACTICES



Now That I Am Friends With Social Media, Do We Have to Hang Out?

Social media offers many benefits but also many risks, and its relationship with your company should be based on the specific needs of the organization


Beneficial Uses:

79% of employees use social media at work for business reasons

47% of employers use social networking sites to look at candidate profiles.


Recruiting and Marketing Benefits

Inexpensive and efficient method for gathering information about applicants and employees

Tool to advertise employment opportunities, recruit, and connect with existing and potential customers and employees


Hiring and Recruiting: Background Searches

Bankruptcy

Criminal Records

Credit Reports


But Don’t Do This:

Only check social media sites for some applicants and not others

Evaluating information differently for each applicant

Considering leisure activities

Looking for and considering protected status


Best Practices for Hiring and Recruiting

Have a policy for social networking background checks ▪ Determine whether you will use social media

screening in the hiring process▪ Outline what you are looking for when

accessing the sites▪ Apply consistently

Limit screening to a few well-trained individuals

Have non-decision maker conduct search and filter information


Best Practices for Hiring and Recruiting

Do not consider illegal criteria Be upfront ▪ Do not ask job applicants for passwords or

other login credentials▪ Do not try to gain access to a candidate’s

profile indirectly▪ Do not send a Facebook friend request to the

candidate without disclosing the real reason for the request


OMG, I think I Am Facebook Stalking? :) Monitoring Your Employees

Business decision each employer must make

Benefits and risks


What Your Peers Are Doing…

77.7% of major U.S. companies check employee e-mail, internet, phone calls, computer files, or videotape them at work

63% of companies monitor internet activity

47% store and review employee e-mail

Almost 30% monitor social media use


Monitoring Employee Productivity

Monitoring Usage—CONSISTENCY!

Blocking Sites

Prohibiting Smart Phones

Disciplinary Actions


Possible Considerations and Checklist Prohibit/permit/encourage use of company resources

to access social media If prohibit – how to monitor If permit – limitations

Reserve employer discretion to monitor employee activity

Clearly state prohibited conduct disclosure of trade secrets, trademark, copyright or other

confidential, proprietary non-public information. use of company equipment to disseminate any electronic

communication that defames, threatens, or harasses Provide the policy is not intended or to interfere with

activity protected by the NLRA


Possible Considerations and Checklist

Clearly indicate that violations of the policy may subject the employee to immediate disciplinary action, including termination

Clearly indicate that equipment and electronic systems are the property of the company and there is no right of privacy with respect to any electronic communication sent using company systems, and that the company may at any time for any reason monitor electronic communications

Warn employees they may be held legally responsible for the content of such communications if it violates the law


With These Tools in Place…

As a general rule, employers may read most employee workplace communications.


Litigation Considerations

E-Discovery Lawyers have caught on to the craze and

learned that a wealth of information exists in social media

Discovery requests are now specifically aimed at social network sites

Requests for documents reflecting public statements could include Twitter tweets, postings on Facebook, and blogs

Spoliation issues


In Review: Implement a written policy regarding social

communications/networking

Do not ask employee for login/password information or to show you his/her or another employee’s profile/page

Only act on information that is voluntarily given to you, publicly available, or that you are able to see through your own or company profile

Keep records of all social network research used during the hiring and firing processes

Update anti-harassment and client/patient privacy policies to include violations for conduct on social network sites


Recommendations

Block or restrict employee access to social networking sites during the working hours

Standardize the process for evaluating employee and applicant profiles on social networking sites

Irrelevant information or information pertaining to an employee or applicant’s protected status should be screened and filtered before it reaches the decision maker

Apply anti-social networking and other conduct policies equally


Recommendations

Encourage supervisors to not friend subordinates

Educate employees on company policies and dangers associated with social networking sites

Train employees on policies

Remind employees that LinkedIn recommendations can violate neutral reference policy


QUESTIONS

presented by: christine s. keenan. social media is here to stay and ignoring it may put you at risk

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