Social Media in the Dealership - Developing Employee Policies

Transcription

1 Social Media in the Dealership - Developing Employee Policies Great marketing tool - Or gigantic time waster? With Penny Phillips Attorney with Felhaber, Larson, Fenlon & Vogt Moderated By Mike Bowers Executive Editor with DealersEdge

2 Penny Phillips - Attorney with Felhaber, Larson, Fenlon & Vogt After serving as Labor & Employment counsel for SUPERVALU INC., a national grocery and distribution chain, Penny Phillips rejoined Felhaber, Larson, Fenlon & Vogt in Sept. 2008, where she had formerly been a shareholder. Since 1990, Ms. Phillips has focused exclusively on counseling and representation of employers in all areas of employment law, including FMLA, wage and hour, employment discrimination claims (including gender, age, religion, disability, national origin, and race), defamation, whistleblower, breach of contract and wrongful discharge. Ms. Phillips also investigates complaints of employee misconduct (including harassment and offensive behavior). She has worked with and practiced before the state and federal courts, various state and federal agencies, including the Department of Labor, the Equal Employment Opportunity Commission, and state and local fair employment practices agencies. Ms. Phillips has a particular emphasis on wage and hour/flsa matters. While in-house at SUPERVALU INC., she defended wage and hour cases throughout the country. She frequently conducts FLSA audits for companies, and is the author of the 2007 Wage & Hour Answer Book, A Guide for Human Resource Professionals, published by Aspen Publishers (a leading information provider for attorneys, business professionals and law students). Ms. Phillips is also a frequent teacher and trainer on employment issues. She provides ongoing training to employers, managers, human resource personnel and other lawyers on matters such as the FMLA, ADA, wage and hour laws, hiring and firing, sexual and unlawful harassment, discrimination, conducting investigations, alcohol and drug testing, and reductions-in-force. Ms. Phillips has spoken to companies and organizations throughout Minnesota, the Midwest, and the United States.

3 Googling My Facebook Makes Me Twitter Penelope (Penny) Phillips Felhaber, Larson, Fenlon & Vogt, P.A. 220 South 6 th Street, Suite 2200 Minneapolis, Minnesota, pphillips@felhaber.com

4 Social Networking Sites What are SNS? Social networking Web sites enable individuals with common interests or backgrounds to connect and communicate online. Upon joining a social networking service, users can create personal profiles, create links to other members, and contact each other. Self managed administrative settings provide users with a limited degree of control over who is able to view their profile information and contact them.

5 Social Networking Sites Statistics Facebook claims 350 million active users (i.e., users who have returned to the site in the last 30 days). MySpace boasts over 260 million users

6 Myspace.com

7 Facebook.com

8 LinkedIn.com

9 Twitter.com

10 Employers need to know how to utilize these sites for: 1. Prospective Employees 2. Current Employees Employers need to know what information they may access. Employers need to know what information they may or must act upon.

11 Prospective Employees Googling an Applicant 77% of recruiters used Google or Yahoo to check background of candidates. 35% of those recruiters eliminated a candidate based on information discovered.

12 Networking and Working the Net 78% of companies surveyed use social networking sites to find and attract candidates. 68% of companies using these sites intend to do more in the coming year.

13 Networking and Working the Net Consider Reliability of Information How recent? Altered? Accurate? 1/3 of social network participants admit to posting false information about themselves. Alabama Lawyer, 69 Ala. Law. 131, 133 n.15 (2008) Trustworthy? Legally Protected? What if a photo showing member of protected class?

14 Current Employees Employers vs. Employees SNS cause loss of productivity. According to Nucleus Research, Facebook alone costs employers 1.5% of total productivity, and some employees use Facebook as much as 3 hours per day.

15 Employers v. Employees- Productivity What Should You Do? 1. Have a policy prohibiting (or limiting) the employees use of SNS at work. 2. Have IS block access to certain sites Ramifications if want to review Facebook postings. 3. Have a policy prohibiting (or limiting) use of computer for non-work related purposes. SNS s

16 Rights of the Employer To discipline or discharge employees for disloyalty To discipline or discharge for insubordination, harassment, violations of company policy To discipline or discharge for revealing confidential or trade secret information To protect company image

17 Rights of the Employee Right to engage in off-duty off-site conduct Right to freedom of speech (sometimes) Right to protest working conditions and report illegal conduct Right to be free from harassment on discrimination

18 Legal Issues for Employers Invasion of Privacy Whistleblower Laws Harassment, discrimination, and retaliation First Amendment (depends on employer) Harassment, discrimination, and retaliation Defamation National Labor Relations Act

19 Legal Issues for Employees Invasion of Privacy Discrimination and Harassment Defamation Non-Work Activities

20 What An Employer Can (Legally) Access Publically Available Information from SNS Facebook/Myspace/LinkedIn if the individual has low security settings, one can access the user s profile on the website, including Basic Personal Information, which may include the user s birthday, home town, family members, relationship status, and political views; Personal Information, which may include the user s activities, interests, favorite music, favorite TV shows, favorite movies, favorite books, favorite quotes, and other information about he user; Contact Information, which may include addresses, Twitter or other SNS site accounts, phone numbers, and addresses; and Education Information, which may include information on where and when the individual went to school.

21 What Can You (Legally) Access (cont.) Publically Available Information from SNS

22 What Can You (Legally) Access (cont.) Heightened Security Settings Most SNS sites permit the user to limit access to his or her profile page.

23 What Information Employers Should NOT Access Pretexting Accessing information on a profile set to private by friending the user. The attorney can either friend the user with his own account or set up a dummy account to friend the targeted user. In the absence of explicit direction from the Rules of Professional Conduct and the laws governing online behavior, flying a false flag in these uncharted waters may be hazardous.

24 Invasion of Privacy Discrimination (continued) Employee s Profile often reveals an employee s protected status(es), including: religious beliefs, age, sexual orientation (protected in MN, not in ND) Once employer learns the information, he or she can t unlearn it. Federal and state discrimination laws affected if adverse employment decision is based on information obtained from SNS. Harassment laws affected if SNS are used to harass employees.

25 Invasion of Privacy Does MySpace Really Mean My Space?! Pietrylo v. Houston s Restaurant (D.N.J. 2008). Pietrylo and co-worker Doreen Marino created a MySpace group page called Spec-Tator. According to the site, it was a place for Houston s employees to vent about any BS about what they dealt with at work. Spec-Tator was set as a private Group, so only users accepting an invitation could access the group s content. Pietrylo and Marino invited several past and present Houston s employees to join Spec-Tator.

26 Invasion of Privacy Does MySpace Really Mean My Space?! Pietrylo v. Houston s Restaurant (D.N.J. 2008). Several of Pietylo and Marino s posts on Spec-Tator included vulgar and sexually explicit comments, as well as references to violence and illegal drug use. A co-worker with access to the site (either voluntarily or through coercion) permitted a manager to view the MySpace postings. Pietrylo and Marino were fired for violating Houston s policies regarding professionalism and positivity. Pietrylo and Marino filed suit under the Stored Communications Act, a similar New Jersey statute, and for invasion of privacy.

27 Invasion of Privacy Pietrylo v. Houston s Restaurant (D.N.J. 2008). Holding District court denied Houston s motion for summary judgment. The jury found that the restaurant s managers violated state and federal laws that protect the privacy of web-based communications.

28 What May Employer s Act On? SNS and Employer Prerogatives Employees owe a duty of loyalty Employees are agents of the employers and under traditional rules of agency, owe a duty of loyalty to employers. Generally, employees must refrain from disparaging the employer or disclosing confidential data. E.g., 16-year-old Kimberley Swann called her marketing job boring on her Facebook profile and was fired when her employer saw her profile. E.g., Kevin Colvin, an intern at Anglo Irish Bank was fired after he told his manager that he d miss work because something came up at home, but the manager saw freshly-posted pictures of Colvin attending a Halloween party on his Facebook page. Employees may owe similar contractual obligations.

29 Employees owe a duty of loyalty SNS and Employer Prerogatives

30 What Must Employer s Act On? Sexual Harassment in Cyberspace Blakey v. Continental Airlines (N.J. 2000) Employer used a bulletin board on an intranet to post schedules and assignments for pilots. The site also had a chat area where employees could post info. In chat area, male pilots posted negative remarks about Tammy Blakey, a female pilot. Blakey sued the airline for sexual harassment and hostile work environment.

31 Vicarious Liability Blakey v. Continental Airlines (N.J. 2000) Employer s Duties. (1) Employers do not have a duty to monitor private communications of their employees (2) Employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace Issue on Remand Whether the employer had notice of employee s conduct.

32 Questions?

33 Social Networking Policy Many employees use social networking tools and sites. The company respects the right of employees to use social networking tools and sites ( social networking ) during nonwork time and does not want to discourage employees from self expression. The company also recognizes the value of making connections to advance the company s interests. This policy is designed to guide employees through the issues relating to activities that are appropriate and encouraged, and those that are prohibited. It is the right and duty of the company to protect itself from inappropriate use and unauthorized disclosure of information in regard to employee use of social media, blogs and other networking resources. This policy establishes rules and guidelines for companyauthorized social networking and personal social networking and applies to all Firm members. For purposes of this policy, the term social media refers to social networking sites (such as Facebook, LinkedIn, MySpace), web forums, blogs, discussion groups, chat rooms, picture swapping sites and all other internet sites designed for people to interact with each other such as You Tube, Wiki, chat rooms, etc. Guidelines for Using Social Media on Behalf of the Company Because the public can access what you have written or contributed, unless specifically instructed or authorized, employees should not speak on behalf of the company when using social media. Once authorized to speak on behalf of the company and once you identify yourself as being employed by the company in a social network, you are now connected with other Firm members and clients. Make sure that your content is professional and appropriate. Keep in mind that the company may have reason to review the content. Employees are permitted to participate in social networks and blogs provided that they observe the following: 1. You must identify yourself as an employee and representative of the company. 2. You must only engage in activity that serves the legitimate interests of the company. 3. You must not allow the use of social media at work to interfere with or negatively affect your job performance. 1

34 4. You must observe all terms of service requirements and other requirements of any site or service that you use for networking on behalf of the company. 5. You may not publicly discuss clients, products, services, or vendors, whether confidential or not, outside firm-authorized communications. If you have questions about whether a particular subject or issue is confidential or proprietary, speak with your. 6. Employees are expected to protect the privacy of the company, its employees and clients and are prohibited from disclosing personal employee information as well as any information about the identity of clients or about a client s case or circumstances. Confidential information about a client cannot be disclosed even when the client s name is not used. 7. You must act in an ethical manner and must at all times provide only truthful statements and accurate information. 8. You may not act in any manner that would violate any policy of. 9. You must behave respectfully and not use the internet to harass, threaten, disparage, defame or ridicule any other person or business. 10. You may not violate anyone s privacy or use their copyrighted or protected information, while using social media on behalf of the company. 11. You may not offer references, recommendations or referrals of any sort on behalf of others. All such requests must be referred to Human Resources. Personal Use of Social Media The company recognizes the rights of employees to engage in the use of social media in their personal lives. However, employees often fail to appreciate the impact that such use can have upon their employer. As a general rule, because you are to be spending your working time on work-related activities, you should not spend work time on social networking for personal reasons during working time. If you do spend time on social networking during non-working time you must not allow the use to interfere with or negatively affect your job performance. The company has established the following rules of the use of social media during nonworking time. The sole purpose of this policy is to insure that such activity does not adversely affect the company or its clients. 1. For non-work related topics, use a personal address, not your firm e- mail address as your primary means of identification. 2

35 2. You must identify yourself as an employee of the company in any social networking activity that relates in any way to the company, client/customers, or anyone affiliated with the company or the company s business. 3. Even though you may be using social media for personal reasons, because the public may view you as a spokesperson for the company, write in the first person and don t represent that you are speaking for the company. You must inform all others with whom you have contact that any opinions expressed in regard to the company, anyone affiliated with the company, or the company s business are personal and do not represent the views of the company. You should state: The views expressed are my own and do not reflect the views of my employer. 4. You may not publicly discuss clients, products, services, or vendors, whether confidential or not, outside firm-authorized communications. If you have questions about whether a particular subject or issue is confidential or proprietary, speak with your supervisor, the Executive Director or President of the company. 5. You must act in an ethical manner and must at all times provide only truthful statements and accurate information. You should not engage in any personal activity that could hold the company up to ridicule or embarrassment. 6. You may not use the company logo, trademark or any other symbol associated with the company. 7. You may not publish or post any pictures of anything related to the company or anyone affiliated with the company without explicit permission in writing from the company. 8. You may not comment or address anything related to the following matters: a. Company financial information; b. Matters relating to competitors and/or their capabilities; 9. You may not sell any product or service that would compete with any of the company's products or services without permission in writing from the company. This includes, but is not limited to training, books, products, and freelance writing. If in doubt, talk with your manager and the president. 3