social media: all risk and no reward?
TRANSCRIPT
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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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
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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
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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
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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?
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Disclosure of Confidential Information
Employees may deliberately or negligently disclose confidential information
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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
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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
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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
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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?