social media: all risk and no reward?

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SOCIAL MEDIA : ALL RISK AND NO REWARD? The importance of developing sound policies and practices concerning use of social media as an employer and preventing employee misuse Presented By: Jon Harris Jennifer Rusie

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Page 1: Social Media: All Risk and No Reward?

SOCIAL MEDIA :ALL RISK AND NO REWARD?

The importance of developing sound policies and practices concerning use of social media as an employer and

preventing employee misuse  Presented By:

Jon Harris

Jennifer Rusie

Page 2: Social Media: All Risk and No Reward?

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Just How Big is Social Networking?

Facebook: over 500 million users; 50% log on to Facebook in any given day

500-700 billion minutes per month spent on Facebook Facebook users share more than 25 billion pieces of

content each month In December 2009, time spent on social media

increased by 82% over December 2008 190 million visitors to Twitter per month 75 million LinkedIn members in over

200 countries

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If Facebook were a country

it would be the 3rd largest—bigger than the USA!

Facebookistan

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Facebook Privacy Settings

Default information available to public: name, profile picture, gender, network, list of friends, list of publicly viewable “pages,” some photo albums now public

Can make private but must jump through hoops affirmatively do so

Page 5: Social Media: All Risk and No Reward?

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Topics of Discussion

Common Types of Social Media Use of Social Media in Hiring Social Media Danger Zones Litigation Use Best Practices for Company Policies

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Types of Social Media

Derived from “web log,” is website which contains regular entries on a particular subject matter

Can usually be viewed by anyone Generally, visitors are allowed to leave comments

regarding the contents of the blog Over 184,000,000 bloggers worldwide

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Types of Social Media (Cont’d)

Social Networking Sites Allow individuals to maintain a webpage which

includes status updates, pictures, video, and private e-mail messages

Can be made private or public Usually access is restricted to “friends” Facebook has over 500 million active users

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Types of Social Media (Cont’d)

Newest and latest “craze” Simplified version of other sites Allows users to post their “status updates”,

aka “tweets”, in 140 characters or less “Tweets” are similar to texts; as of June

2010, approximately 65 million tweets per day Can be set private or public Usually reserved for sending to “friends”

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Danger Zones Improper use in the hiring process

Employees identifying themselves with your company in communications

Comments re co-employees, management, or competitors

Disclosures of confidential and proprietary information, during and after employment

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Implications of “Cyber-Vetting”

in Hiring

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Social Media and Hiring

Why look at social media during the hiring process? Obtain information you would not receive in an

interview or resume See if an individual fits the “culture” of your

corporation Determine if the individual poses any specific risk to

your business

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Why View Applicants’ Social Networks? Discriminatory

comments Confidential information

from a former employer Lies about qualifications Disparaging comments

about a former employer Writing style and

communication skills Licenses and

certifications Candidate’s personality

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Why View Applicants’ Social Networks?

44% of applicants lied about work history

41% of applicants lied about education 20% of applicants lied about

credentials

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Impact On Hiring Practices

35% of companies have not hired candidates based on content of their social networking site

18% said they were encouraged to hire an applicant based on site

75 % of U.S. recruiters and HR professionals report that their companies require them to conduct online research about candidates

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Risks in Using Social Media in the Hiring Process

Invasion of Privacy Does the applicant have a

“reasonable expectation

of privacy”?

Likely determining factor Is the applicant’s profile accessible to the

public at large or only through friends? Do Not Deceptively Gain Access to Profile

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Risks in Using Social Media in Hiring (Cont’d)

DiscriminationAccess to profile provides information you

may not want imputed to your employment decision, e.g., race, pregnancy status, age, disability, religion, genetics, etc.

Allows applicant to argue that employer relied on improper characteristic

Could lead to both disparate impact and disparate treatment claims

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Risks in Using Social Media in Hiring (Cont’d)

Discrimination Avoidance Tip: Insulate decision maker – have different

individual look at the sites and gather specific, relevant information

Only look for specific things, e.g.: inappropriate photos ties to a competitor opposition to your business

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Risks in Using Social Media in Hiring (Cont’d)

Fair Credit Reporting Act Governs “employment background checks

for the purpose of hiring” Only applies if employer uses a third-party

screening company to conduct the check Do the checks internally, rather than using

an outside service?

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Recommendations:

1. Make informed decision on use of internet searches for applicants/employees

2. Include release/authorization in applications3. Check terms and conditions of website being

accessed4. Don’t be cute (do not falsify, impersonate, retrieve

keystrokes to get access)5. Retain information used for hire/no-hire decision6. Focus on job-relatedness of information7. Ensure right person is involved to search8. Evaluate use of third party to conduct searches9. Consistently apply search

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What’s the problem with using information found online?

Title VII, ADEA, ADA, FMLA, NLRA etc. preclude the use of this information Taint otherwise well-based decision Tempt decision-maker to use improper

information Inconsistency Concerted Activity/Union Issues

Off-duty conduct rules vary from state to state May make decision based on false information Increase likelihood of litigation

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Defamation & harassment

Does the employee’s job involve creating on-line content?

Are you unwittingly permitting this to occur? If the company authorizes or ratifies an

employee’s improper conduct, the company is liable

Page 22: Social Media: All Risk and No Reward?

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Employee privacy considerations

Pietrylo v. Hillstone Restaurant Group, (D.N.J., June 16, 2009) Company managers surreptitiously monitored two

employees’ postings containing complaints and sexual remarks about managers in a private, password protected MySpace account

Managers obtained the password from an employee and then terminated the two employees

Employer liable for violating the federal Stored Communications Act and the NJ Wiretapping and Electronic Surveillance Control Act, because they obtained the password by duress

Page 23: Social Media: All Risk and No Reward?

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Employee privacy considerations Stengart v. Loving Care Agency, Inc., (NJ App. Div.,

Jun. 26, 2009) Employee emails her attorney about potentially suing

Company using Company’s computer but her personal Yahoo email account

After employee resigns, Company accesses emails and tries to use them against her in the lawsuit

Court held e-mails protected by the attorney-client privilege

Company’s ambiguous computer monitoring policy did not make clear that personal emails are Company property

Court specifically rejected idea that Company’s ownership of the computer is the sole determinative factor in deciding whether an employee’s personal communications become Company property

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Corporate Liability for Employee Posts

FTC guidelines impose liability for failing to disclose “material connections.” 16 C.F.R. § 255.5

Employee posting opinion about employer’s product must notify reader that he/she is an employee

Potential violation even if information is true

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Corporate Liability for Employee Posts (Cont’d)

Harassment, Discrimination, and Defamation Is employee acting within scope of duties

when posting? To what extent does the employer have the

right/obligation to control or monitor?

Page 26: Social Media: All Risk and No Reward?

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Disclosure of Confidential Information

Employees may deliberately or negligently disclose confidential information

Page 27: Social Media: All Risk and No Reward?

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Social Media Post-Employment

Former employees may use social media to violate restrictive covenants Facebook posting in lieu of

sending solicitation letters Twitter instead of new job

announcements LinkedIn connections to solicit for

new company Discuss social media in exit

interviews Monitor social media of key

former employees

Page 28: Social Media: All Risk and No Reward?

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Social Media and LitigationUses of Social Media in Litigation

Investigating Plaintiff Incriminating status updates Helpful photographs Alliances with “discriminatory” groups “Friends” or other witnesses you may want to

speak with or depose Information concerning job search efforts (or

lack of)

Preparing For Trial and Investigating Jury Former employees may use to locate class

members

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Best Practices for Company Policies

Not a question of whether to deal with social media . . . rather how to deal with social media

Social media policies Even if no access to blogs/social networks at work, a

policy is helpful to describe acceptable after hours behavior

Page 30: Social Media: All Risk and No Reward?

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Best Practices for Company Policies (Cont’d)

Type of policy?

Negative/deterring or positive/empowering Prohibit employees from speaking about company Empower employees to become ambassadors of the

company

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Best Practices for Company Policies (Cont’d)

Must assess needs, nature and culture of the business

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Do You Need a Social Networking Policy? YES!

Read and sign policy at hire Require adherence to code of conduct/values No slurs, demeaning jokes, sexist terms, offensive

photos, etc. No disclosure of confidential information Remind employees of personal responsibility for posts No right to privacy

Page 33: Social Media: All Risk and No Reward?

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Policy Elements

Mandate strong, specific disclaimers: Opinions are employee’s NOT the company’s

Can limit blogging, Tweeting, Facebooking to business-related purposes

Violation can lead to discipline, up to and including termination

No anonymous posts Encourage positive use of blogs and sites if

appropriate for your business or organization For examples:

www.socialmediagovernance.com

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Best Practices for Company Policies (Cont’d) Social media policy should have links to other

policies Non-discrimination and harassment Electronic communications Confidentiality Conflicts of interest Data protection Antitrust Intellectual property *Some or all may be bundled in a corporate

code of conduct

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E-Mail Policy Checklist

____ E-mail system is property of the company.

____ E-mail system may be used only for

business purposes.

____ The e-mail system may be monitored for

legitimate purposes.

____ No offensive material or remarks.

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____ Prohibited communications.

____ E-mail system cannot be used to solicit for

other commercial ventures.

____ Each employee is responsible for

maintaining his or her e-mail station.

____ acknowledgment and consent form.

E-Mail Policy Checklist

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Internet Use PolicySpecify limits on Internet access, including strict prohibition on:

Connecting to, posting or downloading sexually oriented information;

Engaging in computer hacking or related activities;

Reproducing copyrighted information;

Posting confidential, sensitive and proprietary information on the Internet; and

Attempting to compromise the security of information contained on company computers.

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THANK YOU!

Questions?