Social Media: Employer Pitfalls

Transcription

1 Social Media: Employer Pitfalls Presented by - CoreHR Team Michelle Littlewood, Esq. William Ewy, CIPP/US Denise Wilson, SPHR, SHRM-SCP

2 2 Who is CoreHR Team? Our company was formed to help organizations recognize and identify workforce risks and opportunities. Four decades of HR and legal experience has taught us what to do and what not to do. Our practical knowledge allows us to apply best practices to help clients make the right choices and reduce the risk of employment lawsuits.

3 3 Meet the Founders Michelle Littlewood - Michelle s focus is on legal compliance and risk management. Michelle has over 16 years of experience representing employers in a wide variety of employment and labor law matters. Michelle has conducted training seminars for national franchise businesses, such as Subway and 7-Eleven and been a featured panel member for the Chicago chapter of Lloyds of London. She also taught Employment Law for the Craig School of Business, California State University, Fresno for 8 years. William Ewy - William specializes in operational process identification and improvement. William was certified as a Quality Maturity System (QMS) Reviewer at Hewlett Packard, responsible for evaluating and recommending improvements for entity performance in the areas of strategic business planning, operational excellence, and human resource development, among others. He is also certified by the International Association of Privacy Professionals (IAPP) as an Information Privacy Professional with emphasis on the United States (CIPP/US). Denise Wilson - With over 20 years of HR experience, clients rely on Denise to provide practical solutions to their HR needs. Denise is certified as a Senior Professional in Human Resources (SPHR) from the Human Resource Certification Institute (HRCI) and a Senior Certified Professional (SCP) with the Society for Human Resource Management (SHRM). Denise has performed all duties involved in the employment lifecycle from hiring to termination.

4 4 Today s Objectives Review federal and state social media laws and employer limitations Give you what you need to identify social media policy parameters for your specific business situation

5 5 Today s Agenda Social Media definition, types Examples of usage in the business environment Social Media Issues legal and otherwise Practical Guidance Questions?

6 6 What is Social Media NLRB Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication Examples Facebook, Google+, Twitter, Instagram, YouTube LinkedIn Mailing or Chat Lists or Groups (Yahoo, Facebook, etc.) Blogs, including reader comments Review sites Yelp, Amazon, etc. Forum sites photography, sports, politics, etc.

7 7 Common Business Usage Recruiting Job postings Investigating job candidates Sales and Marketing Investigating clients Marketing to clients Investigation competitors Communicating to employees Employees communicating with each other

8 8 Your Organization is Likely on Social Media Examples Individuals reviewing employers (e.g. Individuals reviewing businesses (e.g. Yelp, Angie s list, BBB, etc.) Your employees almost certainly use social media

9 9 General Legal Considerations Employees discussing work conditions Forcing access to personal social media Acquisition of protected class information

10 10 Related Laws/Regulations National Labor Relations Act (NLRA) State Social Media laws Genetic Information Nondiscrimination Act (GINA) Fair Credit Reporting Act (FCRA) Common law privacy principles

11 11 National Labor Relations Act (NLRA) Protects the rights of employees to act together to address conditions at work, with or without a union, including certain work-related conversations conducted on social media (concerted activity, Section 7 of the NLRA) The NLRB has found reasonable cause to believe that some policies and disciplinary actions violate federal labor law Released three memos in 2011 and 2012 detailing the results of investigations in dozens of social media cases Employees engage in protected concerted activity when using social media to discuss terms and conditions of employment with fellow employees Provisions of employers social media policies have been found to be overly-broad Some employee discharges found to be unlawful, flowing from unlawful policies

12 12 Main NLRB Points Regarding Social Media 1. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law. Policy provisions are found to be unlawful when they interfere with the rights of employees under the NLRA, such as the right to discuss wages and working conditions with co-workers. 2. An employee s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

13 13 Policy Wording Found Unlawful by the NLRB Inappropriate discussions about the company, management, and/or coworkers Publicly sharing information related to the company or any of its employees or customers Using personal computers in any manner that may adversely affect company business interests or reputation Undefined terms including insubordination, lack of respect, or cooperation Failing to distinguish between disclosing information about customers and company business, which the employer may be legally authorized to prohibit, and disclosing other information that employees should be free to share

14 14 A Fine Line Acceptable to the NLRB (Landry s Inc., June 26, 2014) the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company s business.

15 15 The Bottom Line Be precise in social media policies concerning what is and what is not allowed Ensure the policy does not interfere in any way with rights conferred by the NLRA Indicate precisely what kinds of unprotected social media activity will be subject to discipline

16 16 State Social Media Law - CA Labor Code Section 980 Social media means an electronic service or account, or electronic content. Includes but is not limited to - videos, still photographs, instant and text messages, and . An employer shall not require or request an employee or applicant for employment to do any of the following: 1. Disclose a username or password for the purpose of accessing personal social media. 2. Access personal social media in the presence of the employer. 3. Divulge any personal social media, except personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. Does not preclude an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

17 17 Genetic Information Nondiscrimination Act (GINA) An employer may never use genetic information to make an employment decision It is illegal to harass a person because of their genetic information It will usually be unlawful for a covered entity to get genetic information. Exceptions Inadvertent acquisitions such as a manager or supervisor overhears someone talking about a family member s illness. Genetic information may be acquired through commercially and publicly available documents as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).

18 18 Other Protected Classes Race Civil Rights Act of 1964 Color Civil Rights Act of 1964 Religion Civil Rights Act of 1964 National origin Civil Rights Act of 1964 Age (40 and over) Age Discrimination in Employment Act of 1967 Sex Equal Pay Act of 1963 and Civil Rights Act of 1964 Pregnancy Pregnancy Discrimination Act Citizenship Immigration Reform and Control Act Familial status Civil Rights Act of 1968 Title VIII: Housing cannot discriminate for having children, with an exception for senior housing Disability status Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990 Veteran status Vietnam Era Veterans' Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act

19 19 The Fair Credit Reporting Act (FCRA) When reports include information derived from social media, the same FCRA rules apply. For example, companies selling background reports must: Take reasonable steps to ensure the maximum possible accuracy of what is reported from social networks, and that it relates to the correct person Provide copies of reports to individuals and have a resolution process in place if individuals dispute what is said about them in a report Give employers who use their reports information about the employers responsibilities under FCRA including their obligation to provide employees or applicants with advance notice of any adverse action taken on the basis of the reports

20 20 Common Law Privacy Principles In common law, privacy is the legal right to be left alone There are various forms of this right, but the one most implicated by the use of social media is the intrusion upon seclusion One who intentionally intrudes physically or otherwise upon the solitude or seclusion of another or his or her private affairs or concerns is subject to liability to the other for invasion of privacy if the intrusion would be highly offensive to a reasonable person

21 21 Using Social Media as Evidence Sick Leave Workers Compensation Forbidden personal relationships

22 22 Other Issues for Another Time Legal consequences if employees use social media sites to view or distribute objectionable, illicit or offensive material Online bullying or other types of harassment by or of employees Ashley Madison-type issues Using work contact information for personal interactions Making character judgements based on social media usage Posting sensitive information e.g. insider information, patient information (HIPAA) Appropriate disclaimers (e.g. works for but does not represent) if the subject is companyrelated and the individual posting is not officially representing the company Requiring employees to have a profile e.g. on LinkedIn Who owns what related to work-related postings? What happens to the account/logon when an employee leaves? Security risks introduced by social media usage

23 23 Practical Guidance - What Organizations Should Do Apply solid, well-thought-out general employment practices to social media usage Acceptable Use Policy Define appropriate use Give notice of lack of privacy Social Media Policy Do not interfere in any way with rights conferred by the NLRA Indicate precisely what kinds of unprotected social media activity will be subject to discipline Restrict supervisors and managers from friending employees Do not Recommend employees via Social Media Consider blocking specific sites on work networks

24 24 QUESTIONS?

25 25 Contact CoreHR Team Michelle Littlewood William Ewy Denise Wilson

26 26 THANK YOU!