Social Media Do s and Don ts: How Social Media Can Interfere with Investigations

Transcription

1 Social Media Do s and Don ts: How Social Media Can Interfere with Investigations October 17-18, 2017 Tim Walsh Pillsbury Winthrop Shaw Pittman LLP timothy.walsh@pillsburylaw.com Phone:

2 Today s Agenda Employment Law/Social Media Legal Refresher Discussion Scenarios 1 Social Media and Internal Investigations

3 Employment Law/Social Media Legal Refresher National Labor Relations Act (NLRA) Stored Communications Act (SCA) Intrusion Upon Seclusion State Laws on Access to Social Media Accounts 2 Social Media and Internal Investigations

4 Scenario #1 Nurse at a hospital has a private Facebook account. After the shootings at the Holocaust Museum, she comments on her Facebook wall that the paramedics should not have rendered aid to the shooter. Her Facebook friend and co-worker s screenshots of this post to their manager. The manager asks the co-worker for further reports, and friends the nurse through a fake Facebook profile. The nurse posts further inappropriate comments and is fired. 3 Social Media and Internal Investigations

5 Questions 1. Was it legal for the manager to review the screen shots of the nurse s initial post? 2. Could he have legally terminated her employment after that single post? 3. Was it legal for him to ask the co-worker to continue reporting to him regarding the nurse s further posts? 4. Was the nurse s termination legal? 5. What if the manager did not request the co-worker to report to him, but still friended the nurse (who accepted) and then saw her subsequent post? 6. Could the company have asked the nurse for her Facebook logon and password information? 4 Social Media and Internal Investigations

6 Federal Stored Communications Act (SCA) SCA provides that whoever (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, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system shall be liable for damages, unless the communications are readily accessible to the public. In other words, the SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. 5 Social Media and Internal Investigations

7 Federal Stored Communications Act (SCA) The SCA does not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user. 6 Social Media and Internal Investigations

8 Intrusion Upon Seclusion Intentional intrusion upon one s private affairs that would highly offend a reasonable person. Expectation of privacy in social media is constantly evolving. On one end is case law holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view On the other end is case law holding that a reasonable expectation of privacy exists for individual, password-protected, online communications. Case by case basis. 7 Social Media and Internal Investigations

9 State Laws & Access to Social Media Accounts Twenty-five states have laws restricting employer access to social media accounts AR, CA, CO, CT, DE, IL, LA, ME, MD, MI, MT, NE, NM, OK, OR, RI, TN, UT, VA, WA, WV, WI Can t force an employee (1) to disclose login information; (2) to log in to their social media accounts in front of employers so they can observe their posts; (3) to add employers as friends on personal social media accounts; or (4) to change their personal settings to make things more visible to third parties. Some limited exceptions for employers investigating potential employee misconduct, such as violations of company policy or the unauthorized disclosure of proprietary information. 8 Social Media and Internal Investigations

10 National Labor Relations Act Implemented by the National Labor Relations Board (NLRB) NLRA Section 7 (29 U.S.C. 157): Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... NLRA Section 8(a)(1) (29 U.S.C. 158): makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. 9 Social Media and Internal Investigations

11 National Labor Relations Act Concerted activity is when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee him/herself. Concerted activity is for mutual aid or protection where the activity directly implicates terms and conditions of employment and was initiated or intended to bring the matter to the attention of the employer. Low threshold to trigger applicability 10 Social Media and Internal Investigations

12 National Labor Relations Act Laurus Technical Institute and Henderson, 360 NLRB No. 133, Case 10-CA Policy Language: Gossip is not tolerated at Laurus Technical Institute. Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action... Gossip is defined as follows: (1) Talking about a person's personal life when they are not present; (2) Talking about a person's professional life without his/her supervisor present; (3) Negative, or untrue, or disparaging comments or criticisms of another person or persons; (4) Creating, sharing, or repeating information that can injure a person's credibility or reputation 11 Social Media and Internal Investigations

13 National Labor Relations Act Employee s activity can lose protection under the Act. Concerted activity can cross a line. Miklin Enterprises, Inc. v. NLRB, 861 F.3d 812 (8th Cir. 2017) o o NLRB held that Jimmy John s violated the NLRA when (among other reasons) it terminated employees who publicly distributed posters suggesting that Jimmy John s sandwiches posed a health risk to customers Poster pictured two identical sandwiches, stated that one was made by a healthy worker and one made by a sick worker, and CAN T TELL THE DIFFERENCE? JIMMY JOHN S WORKERS DON T GET PAID SICK DAYS. SHOOT, WE CAN T EVEN CALL IN SICK. WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU RE ABOUT TO TAKE THE SANDWICH TEST 12 Social Media and Internal Investigations

14 National Labor Relations Act Miklin Enterprises (Cont.) o NLRB held that the speech was protected unless employer could show that employees had a subjective intent to harm and a malicious motive. o Eighth Circuit reversed the NLRB: an employee s disloyal statements can lose protection even without actual malice. Protection can be lost where employee falsely and publicly disparages her employer or its products and services. o The critical question in the... disloyalty inquiry is whether employee public communications reasonably targeted the employer s labor practices, or indefensibly disparaged the quality of the employer s products or services. o Eight Circuit upheld other NLRB rulings in the case 13 Social Media and Internal Investigations

15 14 Social Media and Internal Investigations

16 Discussion Scenarios 15 Social Media and Internal Investigations

17 Scenario #2 ECP receives an anonymous tip that a laborer at Ohio River Nuclear Power Plant posted negative comments about the plant on twitter. ECP Manager pulls up the twitter post, which says: I don t know if nuclear is too cheap to meter but my paycheck is. ECP reported this information to the laborer s manager. The company requested that the laborer remove the tweet. The laborer did. 16 Social Media and Internal Investigations

18 Questions 1. Was it legal for ECP to review the twitter post? 2. Was it legal for the company to ask the employee to delete the tweet? 3. Would the answer be different if the tweet read: Nuclear is too cheap to meter and so are the paychecks of underpaid Westside laborers! 4. Could the company ask for the Twitter logon and password information? 17 Social Media and Internal Investigations

19 Scenario #3 A Mechanic at Ohio River Nuclear Power Plant posts a news article to the Facebook wall of a friend and co-worker in the RP Department. The article detailed the plant s recent discovery of a burst pipe in the condenser, a severely injured worker, and the immediate need to shut down the plant and go into outage months earlier than planned to conduct the repair. The Mechanic commented on the post, I told you! Months ago I said there was something wrong with the condenser and it needed to be fixed, but no one listened. All my supervisor does is push stuff under the rug. And this time someone got hurt. 18 Social Media and Internal Investigations

20 Scenario #3 An Administrative Assistant in the Engineering department is Facebook friends with the RP Technician and sees the wall post. She liked the wall post. The Engineering Director is Facebook friends with the administrative assistant. Her like of the wall post showed up in his Facebook feed. He calls the ECP Manager and requests a meeting. The ECP Manager and the Engineering Director review the article and the comment. They click on the Mechanic s Facebook profile and see that this is not the first time he has posted about safety concerns at the plant. 19 Social Media and Internal Investigations

21 Questions 1. What does ECP do here? 2. What if the Mechanic s Facebook page was private to nonfriends. Can the plant demand that the mechanic hand over his Facebook login and password? 3. What if you find out that the Mechanic stored his Facebook login and password on the company computer. Can you use that information now? 4. Can the Mechanic be disciplined for his post? 5. What about the Administrative Assistant for liking the post? 20 Social Media and Internal Investigations

22 Questions (Cont.) 6. Can the ECP Investigator send the Mechanic a friend request to gain access his Facebook page? 7. Should he? 21 Social Media and Internal Investigations

23 Scenario #4 Suzie Siren was feeling pretty good about herself after she blew the whistle on the shoddy work being performed by ACME Contracting during Ohio River Nuclear Plant s last outage. That is until she saw her Facebook page. Several of Suzie s union brothers and sisters have been repeatedly posting on her wall, including posting pictures of rats, and calling her derogatory names. This has been going on for weeks. ECP receives an anonymous concern stating that Suzie is being harassed online and identifying three union members alleged to have done the harassing. 22 Social Media and Internal Investigations

24 Questions 1. What kind of situation do we have (or potentially have) here? 2. What does the company need to do? 3. How does ECP proceed? 4. Can ECP ask Suzie and/or the alleged harassers for their Facebook login information to see what has been posted? 23 Social Media and Internal Investigations

25 Social Media Do s and Don ts: How Social Media Can Interfere with Investigations October 17-18, 2017 Tim Walsh timothy.walsh@pillsburylaw.com Phone: