ImpactofSocialMediainTheWorkplace

TerminationsandEthical

Considerations

AbrahamAtansuyiJohnKostakLeoManhanga

July2012

MPTM 500 – Ethics in Technology

Howistheuseofsocialmediaprovokingemployee

terminations?

Whatprotections,rightsorentitlementsdoemployeesandemployershaveinthe

workplace?

WheredoesEthicsplay?

Table of Contents

ContentsExecutiveSummary ........................................................................................................ 2EthicalImpactsofEmploymentTerminations ......................................................... 4AppliedEthicalPerspectivesandTheories ............................................................. 10CurrentLawsandGovernance ................................................................................... 17Conclusions .................................................................................................................... 25Works Cited ..................................................................................................................... 29

ExecutiveSummary The overall goal of this paper is to report on the impact social media is having in

the workplace as it relates to employee terminations, discussing the challenges the

government and companies are facing with respect to employee work rights and privacy

issues. We review cases and their outcomes, offer analysis via applied ethics, discuss

methodologies and perspectives as well as current laws and governance, and then draw

some conclusions.

Due to fast-growing internet usage, millions of people around the world use social

media (like Facebook, MySpace, Twitter, Google+, etc.) by all race, age, sex, ethnicity,

and nationality to network online with friends, family, relatives, co-worker, and other

various groups.1 Social Networking Sites are increasing in popularity every day because

people value establishing relationships (i.e. for social, professional, and religious

purposes), sharing interests, beliefs, culture, and traditions. Most of the Social Media

networks offer free registration or membership which allows users to create an account

using only one-factor authentication (user name and password) after which the user

customizes their blog-like pages including their personal information like: full name, date

of birth, address, employer's name, education, activities and interests, gender, dating

preference, email, phone number, picture, etc. Most people find Social Media as a means

to freely express and share their opinions, thoughts, and lifestyle at any moment in time

because they can connect to their friends, family, relative, and other various groups

1 The Social Skinny. 100 More Social Media Statistics for 2012 http://thesocialskinny.com/100-more-social-media-statistics-for-2012/ (accessed June 2012).

online on their cell phones, laptops and desktop computer. However, most Social Media

users do not consider the issue of securing their privacy, moral responsibility, and other

ethical impact that might originate from the use of Social Media.

Some Social Media users (employees) have been reprimanded or terminated from

their job because they’ve posted negative or insulting comments about their colleagues,

boss or employer. Many of the accused claimed ignorance of the social media network’s

security settings if their comments were not behind some authentication and wide open to

the public. Whether or not their comments were behind cyber lock and key or not, all of

the employees complained that their accusers were trespassing on their right to privacy or

right to freedoms outside the workplace. Do the accused have rights? Is there legislation

or governance that can protect them from what could be an unethical predicament? Does

the fact that their comments are behind a social media network user name and password

make a difference? What freedoms do employees have when they leave the workplace to

talk about their boss or employer? Where does that line cross? On company property

line? Today, in the modern workplace where supply is vastly greater than demand, most

employees are forced to sign an “At Will” employment-based contract. Not contest-

proof, in general this agreement gives the employer the right to terminate employment at

any time for any reason. And what about the employers? Do they have rights to protect

themselves from employees who defame their company brand and badger the company

online on blogs or social networks? As a result of these interesting issues, enormous

moral issues arise that have social, professional, and legal impact in our society.

EthicalImpactsofEmploymentTerminations Employer-Employee Challenges. The national unemployment rate rose slightly in May,

to 8.2 percent, according to figures released by the Bureau of Labor Statistics.

Unemployment has hovered in the low 8 percent range for all of 2012. The number of

long-term unemployed, those jobless for 27 weeks or longer, rose to 5.4 million workers

and accounted for 42.8 percent of the unemployed.2 United States and the world

economies are very much challenged now. According to Stephany Elsworth, says "High

unemployment has forced many significant changes to the American lifestyle and has

altered the American public's expectations for the future". What kind of labor market

condition should we expect when more Americans and other countries citizens around the

world lost jobs because of social media activities? Is the action of employers firing

employees over social media activities justifiable? More people got fired from their jobs

for so many reasons which include but not limited to social media behavior. Even though,

some employers use social media as one of the metric to terminate or downside their

human resource. Does this positively or negatively contribute to national unemployment

rate? Shall we say employers now seek any reason to fire employees because national

economic challenge? Though, we all understand how tough for small, mid, and large

organization to survive in this economy that growing very slowly. “According to a 2009

study by Internet security firm Proofpoint, 8 percent of companies with over 1,000

employees have fired someone for their social media actions3 - a figure that is double

2 U.S. Dept. of Labor. Bureau of Labor Statistics, Economic News Release. June 2012. http://www.bls.gov/news.release/empsit.nr0.htm (accessed June 2012). 3 Proffpoint reference here; Author, Title, Date, web site and date accessed. http://www.abcd.com.home.html (accessed July 2012).

what was reported in 2008. Yet it probably comes as no surprise that Facebook firings are

on the rise. Cases of employers firing employees for social media slipups have been

consistent in the news over the past few years.” Is it ethical for an employee to make

negative comments on Social Media about their employer? Social Media has created a

gap in employee and employer relationship. In regard to employer, every employer will

like to protect their company interest in the public professionally and socially. Every

employee will like to exercise their freedom of speech in the United States which is

protected by the First Amendment to the United States Constitution and by many state

constitutions and state and federal laws. How can employees exercise their First

Amendment right without committing defamation toward their employers or co-workers?

How can employers enforce their ethical policies on social behavior without unjustly fire

their employees? There should be ethical metrics and limitation standard in place that

virtuously justify employees and employers relationship socially and professionally.

Cases.

Negative comment on Facebook got an employee fired. Tri-City Medical Center

Fired Employees - June, 2010. Tri-City Medical Center in Oceanside California fired

some employees for sharing patient information on

Facebook. “We recently identified an incident involving

hospital employees who used social media to post their personal discussions concerning

hospital patients,” said Tri-City Hospital CEO Larry Anderson in a prepared news release.

The allegations, that dozens of employees may have violated patient confidentiality by

posting information on the social networking site caught the attention of the state. The

California Department of Health launched an investigation. Five employees were fired

and one employee received a lesser form of disciplinary action. The hospital will re-

emphasize hospital policy on patient privacy through employee training, Anderson said.4

There is a professional assumption that people (i.e. patients) trust hospitals as a

place that they can go to for medical help and that their personal information will be

handled with care, securely and confidentially. Given that, would, i.e., the nursing staff

be happy and trust their workplace if they are patients of the hospital and their personal

information was shared in the public without their permission? If the employees had

signed an “Employed at Will” agreement, then the employer can terminate employment

at any time for any reason, however the employee may still be able to appeal to the

National Labor Relations Board (NLRB) or a local union if they are part of a union shop.

In the medical industry, privacy information is also protected under the Health Insurance

Portability and Accountability Act (HIPAA), which has very strict licensing laws

stressing patient information protection.

Brixx Restaurant – May 2010. In Charlotte NC, a 22-year-old waitress (Ashley

Johnson) is out of a job after griping on her Facebook page about the $5 tip she got from

a couple who sat at their table for three hours. The waitress

says the customers kept her at work an hour after she was

supposed to clock out. So she blasted the couple on Facebook,

calling them cheap and mentioning the restaurant by name.

Brixx Pizza officials told Johnson a couple of days later that she was being fired because

she violated a company policy banning workers from speaking disparagingly about

4 NBC San Diego Newstory reference here; Author, Title, Date, web site and date accessed. http://www.nbcsandiego.com/news/health/Hospital-Fires-Emps-in-Facebook-Scandal-95794764.html (accessed July 2012).

customers and casting the restaurant in a bad light on a social network. Johnson says she

has apologized to Brixx and is looking for a new job. Brixx's decision to fire Johnson

over the Facebook offense didn't seem to be winning them any fans. All of the comments

by users on the company's Facebook page are negative. As an employer, it is necessary to

enforce policies for the benefit of all our hardworking employees and valued customers.

Our policies ensure Brixx is an enjoyable place to both work AND dine.5

Is it fair for the employee to get fired for this one time company communications

violation after a long and successful career with the organization? She could have

garnered support from the NLRB if she could prove that she was complaining in the

interest of bettering the workplace environment.

English Teacher in Georgia – August 2009. The pictures were exactly what

you'd expect from a European summer vacation: Cafes in Italy and Spain, the Guinness

brewery in Ireland. So 24-year-old Ashley Payne, a public high school English teacher in

Georgia, was not prepared for what happened when her principal asked to see her in

August 2009. "He just asked me, 'Do you have a Facebook page?'" Payne said. "And you

know, I'm confused as to why I am being asked this, but I said, 'Yes.' And he said, 'Do

you have any pictures of yourself up there with alcohol?'" In fact, the picture that

concerned the principal - showing Payne holding a glass of wine and a mug of beer - was

on her Facebook page. There was also a reference to a local trivia contest with a profanity

in its title. Payne was told a parent of one of her students called to complain. And then,

Payne says, she was given a choice: resign or be suspended. She resigned. Attorney

Richard Storrs is fighting to get Payne's job back. But here's the really troubling part: 5 Brixx news story here; Author, Title, Date, web site and date accessed. http://www.huffingtonpost.com/2010/05/17/brixx-pizza-fires-waitres_n_578847.html (accessed July 2012).

Payne had used the privacy settings incorrectly on Facebook. She thought that only her

closest friends could see her vacation photos or her use of the "B" word. What Ashley

Payne or anyone of us who uses the Internet has to realize is this: Today our private lives

are no longer so private. "When we talk about a right to privacy, what we are really

talking about is the right to control information we consider to be private," said Frederick

Lane, an attorney and author of "American Privacy."6 This scenario is a typical example

of how open our private lives are on the internet and how the responsibility of privacy is

falling on our shoulders to understand the limited rights that we have online and how to

secure our information. Issues like this will lead to a lot case law possibly, to be sorted

out in court as to whether or not it was fair the employer fired her.

NFL Eagles' worker Fired for Facebook Update - March 9, 2009. A Facebook

post criticizing his employer, the Philadelphia Eagles, cost a stadium operations worker

his job, according to a story in Monday's Philadelphia Inquirer. Dan Leone, a previous

West Gate Chief of Philadelphia Eagles, was unhappy about how the Eagles team let

Brian Patrick Dawkins (a former American football safety) signed with the Denver

Broncos in free agency. According to the newspaper, Leone posted the following on his

Facebook page: "Dan is [expletive] devastated about Dawkins signing with Denver ...

Dam Eagles R Retarted!!" Days later, despite Leone deleted his comment on his

Facebook; he was fired on the phone. Leone said, according to the Inquirer. "I was ticked

off, and I let my emotions go, but I didn't offend any one person or target a specific

individual. I was just upset that we lost such a great guy. Dawkins was one of my favorite

players. I made a mistake." Leone said he was shocked to lose his job of six years. "I 6 English teacher story here; Author, Title, Date, web site and date accessed. http://www.cbsnews.com/2100-3445_162-7323148.html (accessed July 2012).

apologized for it," Leone said, according to the paper. "I apologized 20 million times. I

never bad-mouthed the organization before. I made one mistake and they terminate me?

And they couldn't even bring me into the office to talk to me? They had to do it over the

phone? At least look me in the eye to get done dirty like this, I can't believe it. I'm

devastated."7 Many employees, when hired, must sign an “Employed At Will” clause

meaning the company can terminate employment for any reason at any time. Does this

employee have any recourse to save his job? This perhaps doesn’t seem ethical for the

organization to do this after this one time case. When can an employee share his/her

personal opinion about the employer without the threat of being terminated? Again, these

issues will probably have to be sorted out through case law and in the courts to debate

and arbitrate.

Virgin Atlantic Sacks 13 Staff - November 2008. Virgin Atlantic fired 13

members of its cabin crew after breaking staff policies due to totally inappropriate

behavior on a social networking for criticizing the airline's

flight safety standards and describing its passengers as "chavs".

According to Sir Richard Branson's company said their

behavior was "totally inappropriate" and had "brought the company into disrepute".

"Following a thorough investigation, it was found that all 13 staff participated in a

discussion on the networking site Facebook.8 The National Labor Relations Board

7 ESPN. Facebook Post Gets Employee Fired. March 2009. http://sports.espn.go.com/nfl/news/story?id=3965039 (accessed June 2012). 8 The Independent. Virgin Atlantic sacks 13 staff for calling its flyers ‘chavs’. November 2008. http://www.independent.co.uk/news/uk/home-news/virgin-atlantic-sacks-13-staff-for-calling-its-flyers-chavs-982192.html (accessed June 2012).

(NLRB) may be able to help the 13 terminated employees by proving that their overall

motivation was for the betterment of the airline or passengers?

AppliedEthicalPerspectivesandTheories

Applying Professional Ethics. Social Media Impact as a field of Professional

Ethics “…can best understood as identifying and analyzing issues of ethical

responsibility” for professionals (or employees) using Information Technology in issue(s)

related to their employment. Don Gotterbarn (1995) suggests that the principal focus of

computer ethics should be on issues of professional responsibility and not on the broader

moral and social implications of that technology. According to Gotterbarn, he argued that

certain technologies (like Facebook, Twitter, MySpace, etc.) have profoundly altered our

lives in which many of us conduct our daily affairs. Don Gotterbarn (1995) and Elizabeth

Buchanan (2004) suggest that ethical issues shall not limit to computer professionals or

“informational professional” alone but to other professions (i.e. “non-information

professionals”).9 It is cogent to identify and analyze Social Media impact on employment

by examine professional and moral responsibility, code of conduct, legal liability, and

accountability.

Let’s examine the incident with Tri-City Medical Center in Oceanside California

where a dozen of Registered Nurses were fired for sharing patient information on

Facebook. This incident can be analyzed from professional ethic perspective. The

American Nurses Association (ANA) has a professional ethical code nurses called “Code

of Ethics for Nurses” which “… was developed as a guide for carrying out nursing 9 Gotterbarn reference here; Author, Title, Date, web site and date accessed. http://www.cbsnews.com/2100-3445_162-7323148.html (accessed July 2012).

responsibilities in a manner consistent with quality in nursing care and the ethical

obligations of the profession”. American Nurses Association suggests that nurses are

expected to maintain professional responsibility and confidentiality of their patients. The

Tri-City nurses violated American Nurses Association Code of Ethics for Nurse” and also

broke “Tri-City Medical Center's Medical Information Privacy Policy” by socializing on

Facebook with patient personal data. I think it was inappropriate for those nurses to

discuss private information of patients on social media for whatever reason it could be

because inappropriate disclosure of patient’s information could jeopardized the

fundamental trust between patients, nurses, and the hospital. Should those nurses be

forgiving for their action maybe they don’t intentionally do what they did? Who should

be responsible and be accountable for the nurses’ negligence if the patient finds out that

hospital nurses violated privacy policy and sue the hospital? I think these are the

questions the management of Tri-City thought about before the decided to fire those

employees.

Consequence-Based Ethical Theories: Utilitarian. According to the utilitarian

theory, “An individual act (X) or a social policy (Y) is morally permissible if the

consequences that result from (X) or (Y) produce the greatest amount of good for the

greatest number of persons affected by the act or policy”. The American Nurses

Association Code (ANA) of Ethics for Nurse and Tri-City Medical Center's Medical

Information Privacy Policy are moral value policies established for medical professionals

to responsibly conduct their actions that “…produce the greatest amount of good for the

greatest number” of patients affected by the policies in the hospitals. The consequences

of ANA Ethics for Nurse and Tri-City Privacy Policy violated by a dozen of Tri-City

employees created to protect the privacy interest of millions patients is as majority but

un-favor to Tri-City employees whose got fired from their job due to their unethical

discussion on Facebook. However, Facebook or other social media usage provides

usefulness and happiness to the majority (millions of users). Since million users of

Facebook or other social media users are happy socializing online, is it ethical or morally

safe for hospital employees to discuss personal information of their patients on

Facebook? How would Tri-City employees feel toward the hospital or their employees if

they are the patients been talk about on the Facebook? Policy is ethical guide that needs

to be study, follow, and live by professional where their duties affect general public to

maintain consistency quality service.

Duty-Based Ethical Theories: Deontology. Immanuel Kant (1724 – 1804)

argued that morality must ultimately be grounded in the concept of duty and that morality

has nothing to do with the promotion of happiness which rejects utilitarianism theory.

Kant argued that performance of duties may result to either happiness or unhappiness

consequence. The American Nursing Association Policy, California Department of

Health policy, and Tri-City Medical Center's Medical Information Privacy Policy require

all nurses to protect patient confidentiality as part of their duties and responsibilities to

the patients. I think going to Facebook to mingle by posting patient confidential

information violated not only Tri-City Medical Center policy but caught the attention of

the California State which investigated the incident as well. Let examine how Tri-City

employees that was fired think their job are. Maybe the Tri-City employees think they

can ease off from the stress from their jobs by sharing how was their day was. Maybe

those employees didn’t have opportunity of time to chat with their friends, relative or

family once they get off work and they see Facebook as good technology to help them

cover those gaps of socializing with friends, relative or family. Also, maybe those

employees who got fired forgot about the policies and duty of keeping patient

information confidential at all time and got caught on social media. What if those

employees didn’t get caught and other Facebook users found that information that might

be useful for fraudulent act.

Contract-based Theories: Rights. Hobbes (1588 – 1679) argued that contract-

based ethical theory is an original “premoral” because there were no moral (or legal) in

existence. There was a contractual agreement between Tri-City Medical Center and it

employees to conduct their duties in ethical manner according to Tri-City policies agreed

and signed by Tri-City employees. Philosophers like Thomas Aquinas, Thomas Jefferson,

etc. declared that all humans are entitled to freedom of life, liberty, speech, etc. First

Amendment law is grounded law of human natural right in the United States.

A case of Ashley Johnson, a waitress at Broxx Restaurant blasted a couple on Facebook,

calling them cheap and mentioning the restaurant by name. Ashley exercised her first

amendment right that emphasis freedom of speech but she violated reputation of Broxx

Restaurant she represented as an employee. For the fact that Ashley has freedom of

speech, can she misrepresent and post negative comment about customers of company

she worked for? Tips supposed to be a given by choice not compulsory given to the

person been of service to you. We think every customer can't give the same tips. We

think Ashley Johnson theoretical to be aware of this instead of expressing her feeling in

words that included her company name.

A case of Ashley Payne, an English Teacher in Georgia who got fired for

enjoying herself on her European summer vacation by doing exactly what were expected

from Cafes in Italy and Spain, the Guinness brewery in Ireland. This was a way she

pursuit her happiness. Why she was fired because of some pictures find on Facebook

despite of privacy setting she has on Facebook? We think Ashley Payne employment

termination wasn’t reasonable 100%. We examine this case from the viewpoint of parent

accidently find their child’s teacher pictures drinking on social media. Should the parent

complaint about the action of Payne for doing what adult supposed to do on vacation?

This was her private life which is separated distinctly from professional life.

Character-Based Ethical Theories: Virtue. Philosophers like Plato and

Aristotle argued that this theory should focus on character development of individuals

and their acquisition of good character traits from the kinds of habits they develop.

Specifically, Aristotle believed ethics should not merely be study but something to live or

practiced i.e. through the proper training, acquisition of good habits, and character traits.

NFL Eagles' worker and 13 Virgin Atlantic staff scenarios can be observe using

Character-based. Those individuals Dan Leone and 13 Virgin Atlantic staff should have

try to practice or live ethics using self-control and wisdom to express their emotional

thought in formal or professional way that be reasonable to their employers instead using

Facebook. We want to believe that NFL Eagles club and Virgin Atlantic have some

training program that properly trains their employees’ good habits or virtue that can help

them make good decision to choice right communication tool to professional express

their how they feel or thought on any activities around their working environment.

What We Should Never Post on Facebook 1. Your Birth Date and Place: you

should think twice before posting your full birthday. Beth Givens, executive director of

the Privacy Rights Clearinghouse advises that revealing your exact birthday and your

place of birth is like handing over your financial security to thieves. Furthermore,

Carnegie Mellon researchers recently discovered that they could reconstruct social

security numbers using an individual's birthday and place of birth. Rather than remove

your birthday entirely, you could enter a date that's just a few days off from your real

birthday. 2. Your Mother's Maiden Name - "Your mother’s maiden name is an especially

valuable bit of information, not least since it’s often the answer to security questions on

many sites," writes the New York Times. Credit card companies, your wireless service

provider, and numerous other firms frequently rely on this tidbit to protect your personal

information. 3.Your Home Address Publicizing your home address enables everyone and

anyone with whom you've shared that information to see where you live, from exes to

employers. Opening up in this way could have negative repercussions: for example, there

have been instances in which burglars have used Facebook to target users who said they

were not at home. 4. Your Long Trip Away from Home - Don't post status updates that

mention when you will be away from home, advises New York Times columnist Ron

Lieber. When you broadcast your vacation dates, you might be telling untrustworthy

Facebook "friends" that your house is empty and unwatched. "[R]emind 'friends' that you

have an alarm or a guard dog," Lieber writes. 5. Your Short Trips Away From Home

Although new features like Facebook Places encourage you to check in during outings

and broadcast your location (be it at a restaurant, park, or store), you might think twice

even before sharing information about shorter departures from your home. "Don’t post

messages such as 'out for a run' or 'at the mall shopping for my sweetie,'" Identity Theft

911 cautions. "Thieves could use that information to physically break in your house."

6. Your Vacation Countdown - CBSMoneyWatch.com warns social network users that

counting down the days to a vacation can be as negligent as stating how many days the

vacation will last. "There may be a better way to say 'Rob me, please' than posting

something along the lines of: 'Count-down to Maui! Two days and Ritz Carlton, here we

come!' on [a social networking site]. But it's hard to think of one. Post the photos on

Facebook when you return, if you like. But don't invite criminals in by telling them

specifically when you'll be gone," MoneyWatch writes. 7. Your Child's Name

Identity thieves also target children. "Don't use a child's name in photo tags or captions,"

writes Consumer Reports. "If someone else does, delete it by clicking on Remove Tag. If

your child isn't on Facebook and someone includes his or her name in a caption, ask that

person to remove the name." 8. Your 'Risky' Behavior- There have been additional

reports that insurance companies may adjust users' premiums based what they post to

Facebook. Given that criminals are turning to high-tech tools like Google Street View

and Facebook to target victims, "I wouldn't be surprised if, as social media grow in

popularity and more location-based applications come to fore, insurance providers

consider these in their pricing of an individual's risk," says Darren Black, head of home

insurance for Confused.com. 9. The Layout of Your Home - Identity Theft 911 reminds

Facebook users never to post photos that reveal the layout of an apartment or home and

the valuables therein. 10.Your Profile On Public Search - Do you want your Facebook

profile--even bare-bones information like your gender, name, and profile picture--

appearing in a Google search? If not, you should block your profile from appearing in

search engine results. Consumer Reports advises that doing so will "help prevent

strangers from accessing your page." To change this privacy setting, go to Privacy

Settings under Account, then Sharing on Facebook. 11. How To Remove Yourself From

Facebook Ads.

CurrentLawsandGovernance Employment and Privacy Laws.

The Fair Credit Reporting Act & Social Media: What Businesses Should Know.

You finally have your short list of candidates for hire and now you’re ready for

background checks. Credit reports, criminal records, and employment and salary history

can all be included when employers prepare background checks on prospective new hires.

And now, social media can be included as well. But the rules are the same regardless of

the type of information that’s in a report being used to make hiring decisions.10

Employers using reports and companies providing reports to employers must comply

with the Fair Credit Reporting Act (FCRA). In one particular case, the FTC looked into a

company that was selling background check reports that included social media

information to see if they were complying with the FCRA. These companies, in

examples like this, must take appropriate steps to ensure the highest possible accuracy of

10 Lesley Fair, FTC Blog. The Fair Credit Repoting Act & Social Media. http://business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know (accessed July 2012).

what’s reported from social media networks and that the information relates to the correct

person. These companies also have to provide copies of reports to persons being

referenced and have a system in place to handle disputes in case the person being

referenced needs to challenge the validity of the information. The reporting firms

working with corporations to provide this service have to also provide materials to the

employees using the reports to make them aware of the FCRA guidelines and how to

handle the information. Lastly, employers must ensure that the reports won’t be used in a

manner that would violate federal or state equal employment opportunity laws or

regulations. Both parties also have a legal obligation to keep the information in the

reports secure and dispose of the reports properly.

Privacy and Security Responsibilities, Bureau of Consumer Protection Business

Center, Federal Trade Commission. We learned of this blog site and associate

governance reference pages at the FTC from interviewing Hillary Sloane Gebler,

Attorney Advisor, Office of Administrative Law Judges, Federal Trade Commission.

“Our office performs initial adjudicative fact-finding in Commission administrative

complaint proceedings. We’re independent decision makers and appointed by the Office

of Personnel Management. We’re guided by FTC Acts and statutes and the FTC Rules of

Practice. When I’m assigned to handle a complaint issued by the Commission, I hold

pre-hearing conferences, resolve disputes made in discovery and other disputes and

conduct the full adversarial evidentiary hearing on the record. The administrative law

judge issues an initial decision which sets the findings of fact with records, explains the

correct legality, applies the law to the facts, and when necessary, issues an order on the

remedy”.11

Equal Employment Opportunity Act and Whistleblower Rights. The Equal

Opportunity in employment laws were established as part of the landmark Civil Rights

Act of 1964 whereas a portion of the ACT was dedicated to fairness in employment and

broadened to apply to the individual level that which was previously restricted to the state

level. The Equal Employment Opportunity Commission (EEOC) was also established at

this time of ratification. EEOC policies include firing and employee protections from

acts of discrimination in the workplace on the basis of race, religion, color, sex or

national origin.12 Complaints can be files and the EEOC will determine if the case

warrants pursuit and resolvement. Strict time limits are in play for filing discrimination

charges so one should contact EEOC promptly to preserve the ability for EEOC to act on

your behalf and protect your right to file a private lawsuit. Remedies can include

reinstatement or compensatory and punitive damages or liquidated damages. The

employer will also be required to stop the said discriminatory practices and take steps to

prevent them in the future.

Whistleblower status is a person who reports to an authority about an alleged

dishonest or illegal activity. These are typically classified as a law, rule, regulation

violation or a direct threat to public interest. Allegations can be made internally with

your colleagues or management or external with the media and are motivated promises of

rewards like percentage of money recovered or damages won for example in the 186-

11 Interview: Hillary Sloane Gebler, Attorney Advisor, Office of Administrative Law Judges, Federal Trade Commission. Interviewed June 13th, 2012). 12 Equal Employment Opportunity Commission (EEOC). http://www.eeoc.gov/ (accessed July 2012)

revised False Claims Act. Another national law protecting Whistleblowers is the Lloyd-

LaFollette Act of 1912 and the US Clean Water Act of 1972. In general, Whistleblowers

are motivated and protected in a patchwork of local state and federal laws. Over 50

countries have adopted such protections and part of their anti-corruption campaigns for

example. Various states in the union have their own Whistleblower protection Acts as

well.

National Labor Relations Board (NLRB). The NLRB is an independent agency

of the federal government that runs elections and holds offices for labor union

representation as well as investigating unfair labor practices.13 The board encourages

collective bargaining and to stop private sector labor and management practices which

they deem harmful to the welfare of workers, businesses and the U.S. economy.

Stored Communications Act of 1986. This is a law having to do with the

disclosure of ‘stored wire and electronic communications and transactional records’ held

by a third party ISP. It was enacted in 1986 and helps to cover the gap left by the Fourth

Amendment that protects our right against unreasonable search and seizure but in this

case, “protection” isn’t considering online or digital assets.14

Social Networking Online Protection Act (SNOPA), Introduced April 2012.

SNOPA was introduced a few months ago by U.S. Representative Eliot Engel (D-NY)

and Representative Jan Schakowsky (D-ILL). If passed, the Act could prevent an

employer or potential employer from being able to ask an employee or new hire

candidate for their user name and password to social media network sites. The Senators

13 National Labor Relations Board (NLRB). https://nlrb.gov/ (accessed July 2012) 14 Internet Law Treaties. Privacy: Stored Communications Act. http://ilt.eff.org/index.php/Privacy:_Stored_Communications_Act (accessed July 2012)

have asked the Justice Department to inquire as to whether such practice violates two

existing Acts, the Stored Communications Act or the Computer Fraud and Abuse Act.

Maryland has already passed a similar bill that awaits their governor’s signature to make

it a law. Similar bills have been introduced in California and Illinois.15

Computer Fraud and Abuse Act. Passed in 1986 and amended many times,

particularly by the USA Patriot Act of 2002 and in 2008 by the Identity Theft

Enforcement and Restitution Act. The Act can punish anyone who’s attempted to

commit an offense or conspiring to do so in regards to breaching a computer and or the

materials on it as a personal asset. The crimes focused on are of federal or financial

institution in nature and interstate.

Pablo Molina Interview. On June 8th we had the pleasure of interviewing Mr.

Pablo G. Molina in his Georgetown Law School offices. Professor Molina is currently

the Executive Director at the International Applied Ethics and Technology Association

and Adjunct Professor at Georgetown University. Pablo reviewed with us some

interesting research prospects for social media in the workforce but he also stressed to

investigate what’s happening, at least briefly, on an international basis and so the next

section is dedicated to Pablo for his dedicated professionalism, subject matter expertise

and friendship.16

International – Fair Work Australia – Fair Work Australia (FWA) is the

Industrial Relations Institution operation formed in Australia in 2009 to dispute unfair job

terminations in addition to setting of the minimum wage and approval of enterprise

15 Interview with Attorney Levi McAllister, Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, NW, Washington, DC 20004 (202) 739.3000 (interviewed July 14 2012) 16 Interview with Mr. Pablo G. Molina, Exec. Dir at the International Applied Ethics and Technology Association. (interviewed June 8th, 2012)

agreements. The case of Stutsel versus Linfox Australia Pty Limited exposes the need

for social media policies in large organizations.17

Stutsel the employee said disparaging things against his company on facebook

and was terminated for breach employment contract promises like acting with good faith,

respecting the trust and confidence, not taking action to damage the employer and

promote the employer’s business interests. He filed for arbitration support from the FWA

claiming his wife and daughter set up the account and said the security was configured

and that he had no idea the content was open to the internet. The commission eventually

ruled in favor of Sutsel, referencing that his employer did not have a social media policy

in place at the time of the termination and even at the court proceedings to the end, had

still not had a social media policy in place. Most of these cases being referenced are a

good reminder that all employers need to put a social media policy in place as it’s a

unique issue to deal with and will not necessarily be covered by existing laws or policies

in place for the employer.

Germany puts restrictions on Use of Social Media in HR. Starting with a bill

approved in August of 2010 by Germany’s cabinet, the new law restricts employer from

using social media networks in the recruiting process. Social media content that is not

freely available and open online is not permissible for use in the hiring process in

Germany.18 Deemed as part of “social media 1.0”, the bill was pushed hard to handle the

17 Dundas Lawyers. Social Media Policies are a necessity for Large Companies – Fair Work Australia http://www.dundaslawyers.com.au/no-social-media-policy-insufficient-says-fair-work-australia/ (accessed July 2012) 18 Workplace Privacy Counsel. As Germany Considers Restrictions on Use of Social Media. http://privacyblog.littler.com/2010/09/articles/social-networking-1/as-germany-considers-restrictions-on-use-of-social-media-for-recruiting-multinational-employers-need-to-start-thinking-about-social-media-policy-20/ (accessed July 2012)

US employee hiring and now “social media 2.0” is being considered for wider use

throughout the EU.

Health Insurance Portability and Accountability Act (HIPAA). HIPAA, enacted

in 1996, protects the privacy of individually identifiable health information, the HIPAA

security rule and sets national standards for the security of electronically protected health

information as well as the confidentiality of individual health information.19

Re-shaping HR.

Talent Management Strategy requires that HR department start tapping into social

Media. Taking into consideration that the generation entering workforce grew up with the

internet and social media; employment code of conduct ends to evolve with times as well.

Social media provides significant rewards for companies that have built a formalized a

good strategy of tapping into these social media rewards; however, social media presents

a host of risks that companies need to be aware of and address these risks through their

employment code of conduct. The media is replete with stories about employers who

have fired employees for comments made on social media sites but this has been

countered by a number of employees fighting back alleging wrongful termination. “A

study by a law firm DLA Piper found that a third of employers have had to discipline a

worker for writing something inappropriate about their company on a social networking

site such as Facebook or Twitter”. 20 “A similar research also found that 21% companies

have had to give employees a warning for posting something inappropriate about work

19 U.S. Department of Health & Human Services. Health Information Privacy. http://www.hhs.gov/ocr/privacy/ (accessed July 2012) 20 Third of employers have disciplined workers over social media updates.

colleagues”. 21 Despite all these cases involving social media employee discipline the

same study reported that only a quarter of companies have a stand-alone dedicated social

media policy and less than half have a s social media policy which complement the

traditional HR standing code of conduct. Some employers do not have restrictive

covenants in senior employees’ contracts governing the post termination use of business

contacts on social media sites.

In implementing social media policy companies are starting to establish social

media teams within their HR departments just like they have payroll and Benefits

Administration teams. The purpose of the social media team is to keep their eyes and

ears on the way employees are talking about the company online using social media

monitoring software and ensure someone is responsible for occasionally auditing the

way company is listed on employee social network accounts. Social media policy once

written and adopted, everyone across the company is liberated to stop worrying about

accidentally embarrassing the company. Companies have now started setting a budget for

how they deal with social media through training employees and managing PR and image.

If you don’t have a social media policy, you are exposing your organization to tragic

publicity. If you have a social media policy you are in a good position to tap into

opportunities for employees to strengthen customer relationships, draw awareness to your

business services and products, and great opportunity to build good public relations.

Employers need to support and empower employees by arming them with the information

they need to successfully and appropriately engage on social media forums. Having

specific rules and guidelines means employees can be confident about engaging without

being afraid of damaging your brand so companies Human Resources departments will

need to evolve with changing times on social media use.

Social Media’s Future Use in HR.

Since social media is becoming a source of business for companies; it is

inevitable that every business would need to embrace the emergence of social media. In

as much as it may be a source of trouble for some brands, social media is becoming the

undisputable number one source of business for marketing departments; Marketing

executives and legal departments will have to team up with human resources executives

to build a business case for Human Resources funding on implementing social media

conscious employment policies and training the workforce to be ethically social media

savvy. Human capital management analytics from companies like Salesforce and Oracle

will need to adapt and interface with social media for social media usage analytics and

how its use by employees contributes to Revenue and image building.

Conclusions Productivity and Professional Responsibility.

The world is waking up to the fact that social media passwords are a gate to many

roads containing personal or sensitive information, similar to email and bank accounts.

These lines must be understood as similar and drawn to protect the privacy of individuals.

We have a professional, ethical and legal responsibility to update organization’s

workplace policies as well as the current Acts and Governance body laws that protect

individual’s privacy or write new ones. No one would want to go into a public place and

give out their username and password to total strangers. When employers invade the

privacy of an individual in the social media world, they are also invading the privacy of

their friends or member connections. Further, it’s also dangerous to a hiring manager to

potentially put him in contact with information that would normally be off-limits in the

hiring process such as ethnicity, nationality, sexuality, religion and pre-existing medical

conditions.

22 In general “social media sites are perceived as a distraction in workplace, an

interference with employee productivity, internal workforce culture and security”. As

employers are starting to understand opportunities presented by the emergence of social

media, many employers are starting to review and revise their social media policies to

balance between the distractions posed by the social media to productivity to the business

opportunities presented by social media. The main concern was business reputation but

along that risk comes the opportunity for revenue growth through tapping into new

markets. The pervasiveness of technology has forced employers to come face to face with

the reality that social media is here to deliver business benefits more than worry about

employee productivity. Many employers are findings ways to revise policies and train

employees on the positive use of social media.

Other business segments have implemented some code of conduct targeted at

controlling how their workforces express their frustrations about their work environment

unanimously similar to the old “Suggestion Box” style. Some employers use periodical

survey that they send to employees and have them unanimously submit their opinions.

They are other organizations that are a little complicated in the way run business for

employees to register their concerns about work environment; most of the obvious ones

22 Third of employers have disciplined workers over social media updates.

are the entertainment industry like sports (e.g. NBA, MLB, NFL, and media workforce).

The NBA has lately been actively fining athletes for complaining through twitter about

officiating and for making insensitive comments that are deemed controversial; a good

recent example would be that of Amare’ Stoudemire of the New York Knicks who made

some bad taste comments to a fan on twitter and he was fined $50000.00 by the NBA.

23“Stoudemire apologized Sunday to a fan for using the slur in response to a crude tweet

in which the fan admonished the All-Star to "make up for this past season."”. The

justification for this kind of fining by the Board is that young people look up to these

athletes and if they misbehave then they are sending wrong messages to the youth. They

are held to be great models for the youth so the professional is held in good standing by

the society on moral standards.

Analytical Review and Logical Arguments. 8 percent of companies with over 1,000

employees have laid off someone for their social media actions. Facebook firings are on

the rise. Social Media contribute to the national unemployment rate that rose slightly in

June, to 8.2 percent. High unemployment has forced many significant changes to the

American lifestyle. National Social Medial law shall be made to regulate employment

and social media ethical concerns to alleviate social media negative impact on the

national employment rate. A person's right to freedom of speech to comment, to express

emotion and thought is protected by the First Amendment of the U.S. Constitution.

23 Ganderson, LZ. ESPN. June 26, 2012. http://espn.go.com/new-york/nba/story/_/id/8098750/nba-fines-new-york-knicks-amare-stoudemire-50k-slur-twitter (accessed July 7, 2012). Macleod, Ishbel. The Drum. Edited by Ishbel Macleod. October 14, 2011. http://www.thedrum.co.uk/news/2011/10/14/third-employers-have-disciplined-workers-over-social-media-updates (accessed July 7, 2012).

Defamation (for slander or libel) is a statement that makes a claim (or comment) implied

to be factual, that may give an individual, business, product, group, government, or

nation a negative image. Employees got fired for negative comments (i.e. like Tri-City

Medical Center Employees, etc.). Some employers created social media policy that

protects the organization, customers, and employee interests. Employees are fired for

conflict of interest and violation of company policy on social media. There is limitation

to freedom of speech if employees constitute a defamation that can be proof with

evidence in the court of law.

Predictions. For employers or large organizations, to protect themselves from

defamation of character and other employee comment content that’s out of the office, off

premise, they need to see new policy as not a luxury to have but as a dire necessity. The

current flurry of case law should be a wakeup call for organizations to put in place good

solid policies covering social media network content. As for individuals or employees,

hopefully the explosion of social media case law issues will spawn new updates to

governance, laws or Acts and consolidation or the introduction of new ones that

specifically address social media, privacy and the workplace like SNOPA. For the many

shades of gray that currently exist related to “how disparaging” was the employee being

and “was it in the context of trying to improve the workplace”, etc., most of these will

wane as social media’s reach and acceptance matures.

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