social media in DISCOVERY PRACTICE: PT. I: AVOIDING BAD EVIDENCE

Transcription

1 social media in DISCOVERY PRACTICE: PT. I: AVOIDING BAD EVIDENCE Susan Bassford Wilson, Esq. Connect with me on LinkedIn or follow The Electronic Age What is social media? Why should I care? What should I do about it? B--1 1

2 The Electronic Age In 2013, the number of people accessing the Internet via mobile phone is million an increase of 60.3 percent since % of people aged used social networking in the office, most of any age group. Of the younger generation, 1 in 10 has been rejected for a job because of online content. The Electronic Age Americans aged who use social networks report spending an average of 3.2 hours per day doing so. Six of ten employees report using social media at work. B--2 2

3 Avoiding Bad Evidence: Relevant e-laws Social media and potential employees Pitfalls of applicant screening Social media and current employees Protected social media posts E-harassment E-discipline Social media in handbooks The e-laws The Electronic Communications Privacy Act The Fair Credit Reporting Act Title VII and other discrimination statutes Whistleblower laws (federal and state) The National Labor Relations Act ( NLRA ) Stored Communications Act State statutes B--3 3

4 Pitfalls of Applicant Screening Pitfalls of Applicant Screening Searching social media provides a way for employers to learn helpful information they may not get during the typical hiring process. Resume inconsistencies Hobbies Attitude B--4 4

5 Pitfalls of Applicant Screening Searching social media provides a way for employers to learn problematic information they normally would not (and should not) get during the hiring process. Age Genetic disorders/predispositions Religious beliefs National origin Other protected characteristics Pitfalls of Applicant Screening Carnegie Mellon University Study (2013): Four fictitious applicants submitted nearly identical resumes for male applicants Fictitious Facebook accounts for each unique names were used to ensure these accounts would be located with search engines Facebook posts reflected one applicant was straight, one was gay, one was Christian, and one was Muslim Measured calls for interviews B--5 5

6 Pitfalls of Applicant Screening Carnegie Mellon University Study (2013): Between 10% - 25% of companies searched social media networks early in the hiring process Difference in call backs in politically conservative states: AL, AR, ID, KS, KY, NE, OK, UT, WV, WY Christian candidate got callbacks 17% of the time Muslim candidate got callbacks 2% of the time No statistical difference between gay and straight Difference in call backs were not statistically significant study-wide Pitfalls of Applicant Screening e-recommendations: Figure out the best strategy for your company/client. Create appropriate policies and procedures. Follow the policy. Document, document, document! Be consistent. If you can t do it in person, don t do it online. B--6 6

7 Protected Posts The National Labor Relations Act ( NLRA ): Section 7: Employees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1): It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of this Act. Protected Posts What are protected topics once someone is an employee? Treatment of employees by supervisors Workload Wages Staffing B--7 7

8 Protected Posts What are not protected topics? - Trade secrets - Proprietary information - Client information - Privileged information - Individual gripes Protected or Not? B--8 8

9 Protected or Not? Protected or Not? B--9 9

10 Protected or Not? Protected or Not? The Four Questions to Ask Before Disciplining a Current Employee for Social Media Activity: Did other employees join the conversation? Is the comment a continuation of an earlier group action? Does the comment relate to terms and conditions of work? Is the comment purely personal? B

11 A client calls. Bob the HR Director s friend - called in and said that he couldn t come in today because he s sick. While checking Facebook over lunch, the HR Director saw he was actually at Opening Day. What do you advise the company does? 1. Ignore it until another co-worker tattles. 2. Take disciplinary action. 3. Let it slide IF he gets you all tickets, too. Same client reports the following situation: Alice reported that Bob sends her sexually graphic texts every day after work (on his own phone). She s unfriended him on Facebook because he kept pressuring her for sex. She says she can t stand working with him because of this behavior. 1. Not at work? Not the company s problem! 2. It s just Bob. He doesn t mean it. 3. Investigate Alice s complaint. B

12 e-harassment One company recently paid $2.3 million to settle a lawsuit brought by the EEOC alleging sexual harassment and retaliation via text messages. Another court upheld a $1.6 million verdict in favor of an employee with a disability who was harassed by co-workers on a blog outside the workplace. e-harassment Some of the typical scenarios include: Virtual harassment Textual harassment Sexting Cyber stalking B

13 e-recommendations Don t friend subordinates. Check privacy settings. If you can t do it in person, don t do it online. Be consistent! e-recommendations Don t endorse employees online (LinkedIn, etc.) Take complaints about online activity seriously. Train management! No personal online activity on company time or equipment. B

14 e-handbook Review What does this mean for a handbook? Review the entire handbook with the NLRB in mind, not just the social media policy. Ensure the policy matches the (lawful) procedure. Questions? Susan Bassford Wilson, Esq. (314) swilson@constangy.com Connect with me on LinkedIn or follow B

15 Image Credits: Ubermarketing Dreamstime Flowtown.com Canstockphoto.com Planetpals.com laptopclipart.com Clker.com Apptism.com Fotosearch.com Constangy, Brooks & Smith 2014 B