Status Update: Developments On Social Media In The Workplace

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1 Status Update: Developments On Social Media In The Workplace League of California Cities City Attorney Track September 19, 2013 Traci I. Park Burke, Williams & Sorensen, LLP Los Angeles Inland Empire Silicon Valley Oakland Orange County Palm Desert Ventura County

2 Session Overview Prevalence Of Social Media Recent Litigation Involving Social Media Legislative Update On AB1844 And Cyber-Vetting Of Employees NLRB Trends Involving Social Media Practical Strategies For Cities And Public Agencies

3 Prevalence of Social Media

4 Social Media Statistics As of May 2013, Facebook claims to have more than 1.06 Billion active users 72% of online adults use social media 50% log in daily 22% log in several times per day 54% use mobile devices to access social media Facebook accounts for 1 out of 5 page views on the Internet worldwide Users average more than 700 billion minutes per month on Facebook

5 Social Media Statistics Links about sex are shared 90% more than any other kind of link The average Facebook user spends 30 minutes per visit on the site 25% of social media users have no privacy controls There are 92 billion views of YouTube every month There are 190 million tweets per day on Twitter Twitter has filed IPO paperwork with the SEC $600 million revenue in 2013

6 In Just One Minute on Facebook Links Shared 55,304 Photos Tagged 66,168 1,789,736 Actions Performed Comments 510,404 Posts liked 382,861 Pages Liked 72,816 Event invites received 74,204 Wall Posts 79,364 Messages Sent 231,605 Photos Added 135,849 Friendships Approved 98,604 Status Updates 82,557

7 The Blue Line Created by former LAPD Chief Bill Bratton, it will be the new social media for police Set to launch at the International Police Chief s Conference in October Held out as the on-line forum for police to exchange and share information, experience, expertise and has screen share and video conferencing capabilities Good idea or lawsuits in the making?

8 Recent Litigation Involving Social Media

9 Social Media & Litigation In the first half of 2012, there were over 320 published cases across the country involving social media evidence. There are currently over 800 such cases. Litigation involving social media and public entities continues to increase in California and across the country.

10 Litigation Issues Right of Privacy / First Amendment Equal Protection / Due Process Discrimination, Harassment and Retaliation / Whistleblower Protection Defamation Off Duty Conduct Law Labor Relations The Public Records Act

11 Social Media & Employment Litigation Bland v. Roberts 857 F. Supp. 2d 599 (E.D. Va. 2012) (Currently on appeal in the Fourth Circuit) -Employees were fired by the Sheriff for liking the campaign page of the Sheriff s opponent during a local election. -The District Court held that the act of liking a page on a social networking website was not constitutionally-protected speech.

12 Bland v. Roberts: Appellate Issues Is Liking something on Facebook speech protected by the First Amendment? Can public employees be terminated for engaging in such speech? Legal experts believe the U.S. Supreme Court will eventually decide these questions.

13 Social Media & The Public Records Act Smith v. City of San Jose et al Santa Clara County Superior Court (Currently on appeal in the Sixth Appellate District) Trial Court order effectively required the City to obtain and disclose personal communications created and received by City of San Jose Council members in their personal accounts and using their personal electronic devices.

14 Smith v. San Jose: Appellate Issue Are private communications of public officials subject to disclosure under the PRA? In June 2013, LOCC submitted amicus brief arguing Council member s text messages, s and voic s on privately owned devices should not be subject to disclosure under the PRA.

15 Other Uses During Litigation Social Media evidence is regularly being used in all aspects of litigation: 1) Impeachment of jurors on voir dire 2) Impeachment of key witnesses 3) Photos as evidence 4) Solicitation of class members

16 Social Media During Discovery Romano v. Steelcase, Inc. (2010) 907 N.Y.S. 2d 650 Defendant filed motion for access to personal injury plaintiff s social network accounts. Court held: Information was material and necessary to defense; Plaintiff did not have a reasonable expectation of privacy in information published on social networking site; Defendant s need outweighed privacy concerns raised by plaintiff.

17 Other Legal Concerns Discrimination/Equal Protection/Due Process Inconsistent enforcement of policy. Learning of protected information on social media. Harassment Obligation to protect employees from harassment. Retaliation/Whistleblower Potential to retaliate against an employee who acts as a whistleblower online. Defamation Internal online forums for employees.

18 Other Legal Concerns Lawful Off Duty Conduct Must Cause Actual Discredit to the Employer Rational Relationship Between Misconduct and Employment The Essential Test Is Whether the Conduct Harms the Public Service

19 Legislative Update: AB1844 And Cyber-Vetting Of Employees

20 Cyber-Vetting Of Employees Using social media as a background investigation tool is becoming increasingly common, but there are significant risks: Protected categories Web information is inherently risky AB 1844

21 Legislative Update: AB1844 On January 1, 2013 Labor Code Section 980 went into effect: Makes it unlawful for employer to require or request than an employee or applicant disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any social media content.

22 Legislative Update: AB1844 Prohibits an employer from disciplining, threatening to discipline or discharge, or otherwise retaliate against an employee or applicant for not complying with a demand by the employer that violates these provisions.

23 Legislative Update: AB1844 The new law defines social media very broadly to include: "an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, , online services or accounts, or Internet Web site profiles or locations."

24 Legislative Update: AB1844 There is an exception: Nothing in this section shall affect an employer s existing rights and obligations to request an employee to divulge 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.

25 Legislative Update: AB25 Passed on September 11, 2013 Amends new Labor Code Section 980 to expressly cover public employers as follows: Employer means a private employer or a public employer. For purposes of this chapter, public employer means the state, a city, a county, a city and county, or a district.

26 NLRB Trends Regarding Social Media

27 NLRB Administrative Case Update In , the NLRB issued three reports discussing about 150 cases involving social media in the workplace. 1. Concerted Activity/Employee Discipline Cases 2. Social Media Policy Cases

28 NLRB Concerted Activity Cases Concerted Activity under Section 7 of the NLRA: - Occurs when an employee acts with or on the authority of other employees, not on his own behalf; and - Where the subject of the discussion is wages, hours or working conditions.

29 Concerted Activity? Five employees discussing allegations of poor job performance by co-workers, staffing levels, and workload were unlawfully terminated for engaging in concerted activity, even though employees used sarcasm and swearing. Car sales employee who complained about his employer serving cheap hot dogs and soda at a luxury car sales event was engaged in concerted activity because he expressed sentiment of group related to commission issues.

30 Concerted Activity? Restaurant employees who complained on Facebook about employer s tax-withholding policy and co-workers who liked her posts were engaged in concerted activity. A newspaper employee who posted tweets critical of his employer was not engaged in protected activity because there was no evidence he discussed his concerns with his co-workers.

31 Concerted Activity? Bartender who complained on Facebook to a family member about his employer s sucky tipping policy and called the customers rednecks was not engaged in concerted activity because no co-workers responded to the post or were involved. A retail store employee who made profane comments about her store manager were individual gripes, not concerted activity.

32 Proper Social Media Policy? An employer violates the NLRA through the maintenance of any rule that would reasonably tend to chill employees in the exercise of their Section 7 rights. 1) Cannot expressly restrict those rights; 2) Cannot have effect of restricting those rights.

33 Proper Social Media Policy? Employees are instructed to be sure that their posts are completely accurate and not misleading and that they do not reveal non-public information on any public site. Held, overbroad because it would reasonably be interpreted to apply to discussions about or criticisms of the employer s labor policies and treatment of employees.

34 Proper Social Media Policy When in doubt about whether the information you are considering sharing falls into a prohibited category, DO NOT POST. Check with HR or Legal to see if it is a good idea first. Held, unlawful because the NLRB has long held that a rule requiring employees to secure permission before engaging in concerted activity is unlawful.

35 Proper Social Media Policy? Provision in handbook that prohibited any post that would embarrass, harass or defame an employee was overbroad because it could reasonably lead employees to believe they could not discuss their complaints about working conditions on-line. Policy provision precluding employees from pressuring co-workers to connect or communicate on social media was lawful. Anti-bullying provision was enforceable.

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37 Best Practices For Cities And Public Agencies

38 Best Practices Develop clear, comprehensive policies Revise policies when new laws, court decisions are issued or when new technologies emerge Obtain employee s signed acknowledgement of receipt and understanding of policy and the limitation on their reasonable expectation of privacy

39 Best Practices Consider blocking access to social media websites from employer equipment Personal cell phone vs. Employerowned cell phone Train employees

40 Best Practices Exercise good judgment in all written communications Avoid using personal devices and accounts for business purposes Be cautious about using private social media accounts for work-related issues

41 Social Media Policy

42 Questions???