social networking brings new challenges for employers november 18, 2010 paul bittner schottenstein...
TRANSCRIPT
SOCIAL NETWORKING BRINGSNEW CHALLENGES FOR
EMPLOYERS
November 18, 2010
Paul Bittner Schottenstein Zox & Dunn Co., LPA
250 West StreetColumbus, Ohio 43215
614.462.2700www.szd.com
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HOW ENGAGED IN SOCIALNETWORKING IS YOUR COMPANY?
• Facebook Account, Twitter, LinkedIn, Corporate Blog
• Checked out employee or potential employee on LinkedIn, Facebook, MySpace?
• Does your company permit staff access to Social Media Sites?
• Any policies in place?
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HOW DO YOU COMPARE?
• 2009 – 89% of companies allowed access to Facebook
• 2010 – 49% of companies allow access to Facebook
• 72% of corporations are worried worker behavior on social networks is putting company at risk
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SOCIAL NETWORKINGEFFECTS ON BUSINESS
• HR / Management
– Performance: Wasted time browsing, chatting, games
– Disparaging comments about company
– IP / Trade Secrets
• IT
– Security: File Transfers, Phishing Attacks, Spear Phishing Attacks
• Marketing – Communication Channel: Press releases, Ads, etc.
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ISSUES NAVIGATINGSOCIAL NETWORKING SITES
• Team Effort
– IT – HR – Marketing – Management
– Policies
– IT Tools
– Oversight
– Management Support
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TOOLS
• Policies
– Acceptable Use Policy
– Sign on banners
• Transactional Logs
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WEB USAGE
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FACEBOOK USAGE BY USER
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FACEBOOK USAGE BY VISIT
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TRANSACTIONAL LOG – FACEBOOK HOURS
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DO EMPLOYEES HAVE AN EXPECTATION OF PRIVACY IN
THEIR PERSONALE-MAIL CORRESPONDENCE?
• New Jersey Supreme Court said YES!
– Stengart v. Loving Care Agency, Inc. (decided March 30, 2010)
– Employee has both an objectively and subjectively reasonable expectation of privacy in personal e-mail correspondence with her attorney (comes from Fourth Amendment analysis)
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DO EMPLOYEES HAVE AN EXPECTATION OF PRIVACY IN
THEIR PERSONALE-MAIL CORRESPONDENCE?
– Employee used company issued laptop computer to communicate with her attorney
• Ownership of the computer is not the determinative factor
• Societal interest in shielding communications with an attorney from disclosure outweighed company’s interest in upholding its policy
– Employee may have e-mailed her attorney during working hours; HOWEVER
– Employee used personal web-based e-mail account that was password protected
– Employee did not save her personal e-mail account password on her computer
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DO EMPLOYEES HAVE AN EXPECTATION OF PRIVACY IN
THEIR PERSONALE-MAIL CORRESPONDENCE?
• Court found employer’s e-mail usage policy was ambiguous
– Did not address personal e-mail accounts
– Employees had no warning that employer would be monitoring personal e-mail
– Policy was inconsistent
• Primarily for business use; BUT
• Occasional personal use was permitted
– Policy gave no warning that e-mails are stored on hard drive and can be forensically retrieved and read by the employer
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DO EMPLOYEES HAVE AN EXPECTATION OF PRIVACY IN
THEIR PERSONALE-MAIL CORRESPONDENCE?
• Employees have a lesser expectation of privacy when they communicate with an attorney using a company e-mail based system rather than a personal, web-based account
• Clear company policy banning personal e-mails can diminish the reasonableness of an employee’s claim to privacy in e-mail messages with his or her attorney
– However, NJ court said: “a zero tolerance policy can be unworkable and unwelcome in today’s dynamic mobile workforce and [we] do not seek to encourage that approach in any way.”
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U.S. SUPREME COURT CHIMES IN
• June 17, 2010:
• City of Ontario, Cal. v. Quon (130 S.Ct. 2619)
• City reviewed police officer’s text messages on City-issued pager, found inappropriate material
• Issued discipline
• Court said government employer who searches text messages must have legitimate work-related purpose for search to be reasonable
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NATIONAL LABOR RELATIONS BOARD
• October 27, 2010
• In re American Medical Response of Connecticut, Inc. v. International Brotherhood of Teamsters, Local 443
• An employee was terminated after she criticized her boss on her Facebook page. The employer had a policy prohibiting employees from using social media to make disparaging, discriminatory or defamatory comments about the company, supervisors, co-workers or competitors.
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NATIONAL LABOR RELATIONS BOARD
• The NLRB filed a complaint stating that the employer violated the National Labor Relations Act by firing an employee for making negative comments about her supervisor on Facebook.
• NLRB’s counsel told the New York Times, “This is a fairly straightforward case under the National Labor Relations Act – whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”
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WHAT CAN EMPLOYERS DO?
• Can adopt lawful policies related to computer use to protect assets, reputation and productivity of a business and to ensure compliance with legitimate corporate policies
– Policies need to be clear
• What use is permitted? What use is prohibited?
• Does it implicate personal e-mail using a web-based e-mail system?
• What can employer do with the e-mail?
• What are the penalties for violating the policy?
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WHAT CAN EMPLOYERS DO?
• Employers can enforce policies by disciplining and terminating employees for violating policies if done in a consistent, non-discriminatory manner
• Employers may want to block an employee’s access to personal e-mail accounts
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ARE EMPLOYERS PROTECTED WHEN THEY USE E-MAIL TO COMMUNICATE WITH LEGAL
COUNSEL?• Mississippi Federal Court said YES!
– Tate v. Sanderson Farms, Inc. (decided June 3, 2010)
• Employee’s supervisor sent e-mail correspondence to legal counsel for help in dealing with her FMLA requests
• Supervisor accidently carbon copied employee on the e-mails
• Was the attorney-client privilege waived as to these e-mails?
– Court said NO
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ELECTRONIC USE POLICIES - BASICS
Policy should state:
• Use of electronic equipment is primarily for company business
• Cannot use it for access to inappropriate sites, such as pornography, gambling and offensive sites
• Cannot use it for spamming or forwarding chain e-mails
• Cannot download unauthorized programs or copyrighted material
• Employer has right to monitor
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ELECTRONIC USE POLICIES – BASICS
• Personal use cannot interfere with work or violate work rules (harassment, etc.)
• Employee likely signs a paper copy of policy
• Policy may have a disclaimer at log-in
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CURRENT ISSUES WITH ELECTRONIC USE POLICIES
• Not regularly updated
• Don’t address social media
• Don't address “texting” or use of PDAs
• Don’t address unauthorized storage (e.g., videos, photos and music)
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ELECTRONIC USE POLICYMUST HAVES
• Updated disclaimer
• Address storage issues
• Address social media use
– “Official” social media use – who can speak on behalf of the employer
• Training about content
• Confidential information, trade secrets and intellectual property
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ELECTRONIC USE POLICYMUST HAVES
– Personal social media use – you are responsible for what you say
• Prohibit disclosure of confidential information, trade secrets and intellectual property
• Advise of the risks of engaging in off-duty conduct that could violate employer policies
• Limit (or prohibit) use during work hours
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SAMPLE DISCLAIMER
• Notice to Employees and Users:
– This computer system is the property of the Employer and it is to be used for [or primarily used for] Employer business only. Users (authorized or unauthorized) have no explicit or implicit expectation of privacy in the use of this system. Any personal communications that you may have regarding potentially confidential matters, including medical and/or legal matters, are not confidential or privileged and, by agreeing to the terms and conditions of use, you are waiving your right to assert any confidentiality or privilege over such personal communications, whether or not such communications are stored after transmission.
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SAMPLE DISCLAIMER
– Any or all uses of this system and all files and e-mail on this system may be intercepted, monitored, recorded, copied, audited and inspected by the Employer and law enforcement personnel. By using this system, the user consents to such interception, monitoring, recording, copying, auditing, inspection, and disclosure at the discretion of the Employer.
– Unauthorized or improper use of this system may result in disciplinary action, up to dismissal from employment, and civil and criminal penalties. By continuing to use this system you indicate your awareness of and consent to these terms and conditions of use.
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IMPORTANT FEDERAL LAW
• Stored Communications Act (SCA) – Federal Law
– Also known as the Electronic Communications Privacy Act of 1986
– The SCA sets forth a system of statutory privacy rights for customers and subscribers of computer network service providers
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IMPORTANT FEDERAL LAW
• The SCA does three things:
– It creates a code of criminal procedure that federal and state law enforcement officers must follow to compel disclosure of stored communications from network service providers;
– It regulates voluntary disclosure by network service providers of customer communications and records, both to government and non-government entities;
– It prohibits unlawful access to certain stored communications and anyone who obtains, alters or prevents authorized access to those communications is subject to civil and criminal penalties.
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IMPORTANT FEDERAL LAW
– According to the SCA, an offense is committed by anyone who:
(1) Intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) Intentionally exceeds an authorization to access that facility; and thereby obtains ... [an] electronic communication while it is in electronic storage in such system.
– Those who violate the SCA are subject to civil and criminal penalties.
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THE IMPACT OF SOCIAL MEDIAON EMPLOYMENT
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SHOULD I REVIEW SOCIAL MEDIA WHEN MAKING HIRING
DECISIONS?• In most cases, no obligation to conduct a background check
before hiring (exception is certain regulated businesses).
• May help you find a better "fit" for your organization.
• Knowledge comes with a price. Be ready to act on whatever information your search reveals.
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WHAT INFORMATION OBTAINED FROM SOCIAL MEDIA CAN I USE TO
MAKE A HIRING DECISION?
• Illegal drug use
• Poor work ethic
• Poor writing or communication skills
• Negative feelings about prior employers
• Racist or discriminatory tendencies
• General poor judgment in maintenance of on-line persona
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WHAT SOCIAL MEDIA INFORMATION SHOULD AN
EMPLOYER DISREGARD WHEN MAKING A HIRING DECISION?
• Information about the applicant's membership in a protected category
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WHAT SHOULD I DO IF I WANT TO USE SOCIAL MEDIA WHEN MAKING HIRING
DECISIONS?• Screen applicants in a uniform manner
• Designate a neutral company employee to conduct search and report only information that may be lawfully considered
• Employer representative should not "friend" an applicant to gain access to non-public information on social networking sites
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WHAT SHOULD I DO IF I WANT TO USE SOCIAL MEDIA WHEN MAKING HIRING
DECISIONS? • Make sure you can point to a legitimate, non-discriminatory
reason for the hiring decision with documentation to support
• Consult counsel when making hiring decision based upon social media search
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DO I FACE LIABILITY FOR USING SOCIAL MEDIA IN MY HIRING
DECISIONS?• Generally no privacy expectation in what one voluntarily posts on
the internet
– Difference between what the employer obtains through deception and what is freely and openly published on the Internet
• Do not circumvent access restrictions on social media sites
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DO I FACE LIABILITY FOR USING SOCIAL MEDIA IN MY HIRING
DECISIONS? • Negligent hiring/retention/supervision
– Can result if the employer has knowledge, or reason to know, of the employee's unfitness
– Duty varies depending upon employee's contact with third parties (e.g., may have no duty to investigate a landscape worker who would have limited contact with tenants but a duty to investigate if worker is given passkey and access to perform work inside a tenant's residence)
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CAN AN EMPLOYER MONITOR OR DISCIPLINE AN EMPLOYEE FOR THE EMPLOYEE’S OFF-DUTY ACTIVITIES?
• Several states have enacted statutes that limit an employer’s ability to subject an employee to an adverse employment action based on the employee’s lawful off-duty activities.
– In Ohio, there are no laws prohibiting an employer from terminating an employee for legal off-duty activities.
– However, an employer who terminates an employee for legal off-duty activities may have to pay unemployment claims where there is no clear written employment policy regarding off-duty conduct.
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WHAT CONCERNS SHOULD AN EMPLOYER HAVE WHEN VIEWING
AN EMPLOYEE’S SOCIAL MEDIA POSTINGS?
• Privacy Rights
• Discrimination, Harassment and Retaliation
• Potential Union Law Violations
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PRIVACY RIGHTS
• An employee does not have an expectation of privacy when the employee uses social media unless the social media site is password protected.
• Employers should not attempt to gain access to an employee’s social media site if that site is password protected.
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DISCRIMINATION, HARASSMENTAND RETALIATION
• Employers who discipline employees for information posted on the employee’s social media sites must discipline all employees in a consistent and non-discriminatory manner.
• Employers should consider whether to limit a supervisor’s ability to send “friend requests” to a subordinate employee on Facebook or MySpace.
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POTENTIAL UNION VIOLATIONS
• Employers should be cautious when monitoring or investigating employees’ online group postings where the topics of discussion include: organizing, unions, wages, benefits, and other terms or conditions of employment.
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FACT PATTERN #1
• The Good Care Company, which operates nursing homes and assisted living facilities in Ohio, has decided to begin screening job applicant's social media postings before making any hiring decisions. The Company wants to hire 1 new employee to work in its nursing home in Columbus, Ohio. Of the 10 individuals who have applied for this job, 5 are Caucasian, 2 are Hispanic, and 3 have Middle Eastern names.
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FACT PATTERN #1
• The Company has determined that they will only review Facebook, MySpace and Twitter when making this social media pre-employment inquiry. This review reveals that of the 10 candidates, only 3 have social media postings, which reveal the following information:
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FACT PATTERN #1
– Candidate #1 (Caucasian male) has posted on his Facebook page that he is a member of various White Supremacy organizations.
– Candidate #2 (Hispanic female) has posted on her MySpace page that she is looking forward to becoming pregnant with another child soon. Her postings reflect that she has 4 children under 4 years of age and her marital status is listed as "single."
– Candidate #3 (male with Middle Eastern name) has posted on his Facebook account that his hobbies involve guns and flying. His Twitter account also shows that he posted Tweets praising the Fort Hood gunman.
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QUESTIONS
• Can the HR Manager reject Candidate #1 based upon this information?
• Can the HR Manager reject Candidate #2 based upon this information?
• Can the HR Manager reject Candidate #3 based upon this information?
• Can the HR Manager explore further to see if the Middle Eastern male applicant has any blogs?
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FACT PATTERN #2
• The Good Care Company’s HR Manager has just been notified that 3 employees made online postings over the weekend:
– Posting #1 – “YEAH! Headed to Cancun on my two week break from work.”
– Posting #2 – “I am so psyched our new hire Susie reports to me. She makes me feel like I am working at Hooters.”
– Posting #3 – “This year we got a 4% raise, but with the 25% increase in health care premiums and the increase in prescription drug coverage we really got a pay-cut. Good Care sucks!”
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FACT PATTERN #2
– Posting #1 was made by a female employee on Twitter who was just granted two weeks of FMLA leave to care for her son who has a serious medical condition.
– Posting #2 was made by a male supervisor on Facebook who has been disciplined for making inappropriate sexual comments to female subordinates.
– Posting #3 was made by a union employee on a blog accessible only to other union employees through a password.
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QUESTIONS
• Can the HR Manager discipline the employee who made posting #1?
• Can the HR Manager discipline the employee who made posting #2?
• Can the HR Manager prohibit the employee who made posting #3 from further discussing terms and conditions of employment on the blog site?
QUESTIONS?
This presentation is not intended to be specific legal advice.
Please consult an attorney within an attorney/client relationship.
Paul Bittner Schottenstein Zox & Dunn Co., LPA
250 West StreetColumbus, Ohio 43215
614.462.2700www.szd.com
MANUFACTURERS ASSOCIATIONFOR PLASTICS PROCESSORS (MAPP)