Liking Social Media in the Workplace

Transcription

1 Liking Social Media in the Workplace Brought to you by Winston & Strawn s Labor & Employment Practice Group 2013 Winston & Strawn LLP

2 Today s elunch Presenters Jennifer Rappoport Labor & Employment Houston & Los Angeles JRappoport@winston.com Jason Campbell Labor & Employment Los Angeles JsCampbell@winston.com 2013 Winston & Strawn LLP 2

3 What Is the Connection? Employers use of social media to research employees Employers own social media Facebook pages, Twitter feeds Employees use of social media at work Employees use of social media outside of work 2013 Winston & Strawn LLP 3

4 Objectives of a Social Media Policy Define acceptable uses of social media Managers Employees On duty Off duty Educate employees Protect employer s interests 2013 Winston & Strawn LLP 4

5 2013 Winston & Strawn LLP Legal Framework

6 Concerted Activity NLRB: Online commenting can be protected as concerted activity if it concerns working conditions, wages or other employer policies 2013 Winston & Strawn LLP 6

7 Password Protection At least six states including CA, IL, MI, MD have passed laws prohibiting employers from demanding employee passwords to social media sites Most laws include exceptions for valid investigations of allegations of employee misconduct or illegal conduct 2013 Winston & Strawn LLP 7

8 Off-duty Activity Many state statutes protect lawful off-duty conduct Laws differ from state to state but generally bar disciplining an employee for anything off-duty and off-premises that is otherwise legal 2013 Winston & Strawn LLP 8

9 Stored Communications Act Employer cannot access employee s private electronic information without authorization Managers unauthorized access to an employee s invitationonly MySpace chat group on which employees posted complaints about their workplace violated the SCA. Pietrylo v. Hillstone Rest. Group, No , 2009 WL (D.N.J. Sept. 25, 2009). Public information and information stored on company computers can still be accessed Winston & Strawn LLP 9

10 Federal Trade Commission FTC guidance requires bloggers to disclose any material connections they share with the seller of a product or service Could mean that any like or endorsement requires disclosure of employment relationship possible employer liability 2013 Winston & Strawn LLP 10

11 Social Media Policies and the NLRB 2013 Winston & Strawn LLP

12 NLRB Decisions in Question NLRB must have quorum of three members to act Several recess appointments to the NLRB have been held invalid Decisions from January 2012 are in question, and the Supreme Court will ultimately decide 2013 Winston & Strawn LLP 12

13 Costco Costco social media policy statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment Is this policy lawful or unlawful? 2013 Winston & Strawn LLP 13

14 Costco NLRB held this policy was overbroad and violated the NLRA Employees would reasonably construe this policy as one that prohibits protected concerted activity, protected by Section 7 of the NLRA Costco s policy covers concerted communications protesting the employer s treatment of employees Costco s policy did not suggest that protected communications are excluded 2013 Winston & Strawn LLP 14

15 Example Lawful or Unlawful? A provision prohibiting employees from releas[ing] confidential guest, team member or company information Unlawful, because it would reasonably be interpreted as prohibiting employees from discussing information regarding the conditions of employment, which is protected under the Act 2013 Winston & Strawn LLP 15

16 Example Lawful or Unlawful? A provision requiring that employees post only completely accurate and not misleading information on any public site Unlawful, because it would reasonably be interpreted to apply to discussions about the employer s labor policies and treatment of employees, which is protected activity as long as not maliciously false 2013 Winston & Strawn LLP 16

17 Example Lawful or Unlawful? A provision prohibiting harassment, bullying, discrimination, or retaliation Lawful, because it included a list of clearly unprotected and egregious activities 2013 Winston & Strawn LLP 17

18 Example Lawful or Unlawful? A provision prohibiting employees from using the employer s logo and trademarks Unlawful, because it could be interpreted as prohibiting employee use of the employer s logo while engaged in protected activity, such as using picket signs containing the employer s logo 2013 Winston & Strawn LLP 18

19 Example Lawful or Unlawful? A provision prohibiting offensive, demeaning, abusive, or inappropriate remarks Unlawful, as it would include protected criticisms of the employer s labor policies or treatment of employees 2013 Winston & Strawn LLP 19

20 Example Lawful or Unlawful? A provision prohibiting employees from discussing information related to the safety of the employer s products and secret, confidential, or attorney-client privileged information Lawful, as it would not reasonably be interpreted to prohibit protected activity 2013 Winston & Strawn LLP 20

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22 2013 Winston & Strawn LLP Social Media and Discipline

23 Examples from Real Cases NLRB issued its first Facebook firing decision in October 2012 Two posts at issue: One criticizing the hot dogs served at a BMW promotional event One mocking an accident at a dealer owned by same owner. This is your car. This is your car on drugs. Held: Mocking the accident was not protected concerted activity, and that was the sole basis for the termination 2013 Winston & Strawn LLP 23

24 Examples from Real Cases Another Facebook firing elicits opinion from NLRB Employee posts to a group message, using foul and insulting language, including saying that she told a supervisor to back the freak off. The employee also wrote FIRE ME and Make my day. Was the termination lawful? 2013 Winston & Strawn LLP 24

25 Examples from Real Cases Bartender posts online that he doesn t get enough tips, that his employer s customers are rednecks, and that he hopes they choke on glass and get into accidents driving drunk. Employer sees the post and terminates the bartender. Bartender files a complaint Was the termination lawful? 2013 Winston & Strawn LLP 25

26 Examples from Real Cases One employee complains that her co-workers are not working hard enough Co-workers respond online with comments like WTH? We don t have a life as is, Tell her to come do my job, this is dum, and WT-... Try doing my job I have 5 programs. The responding employees are terminated for being insulting and harassing toward the first employee Were the terminations lawful? 2013 Winston & Strawn LLP 26

27 Examples from Real Cases Reporter covering the police beat tweets that he s bored. Later tweets: What?!?!?! No overnight homicide you re slacking Tucson and You stay homicidal, Tucson." Employer terminates him Was the termination lawful? 2013 Winston & Strawn LLP 27

28 Drafting a Social Media Policy 2013 Winston & Strawn LLP

29 Drafting a Social Media Policy Define acceptable uses of social media Managers Employees On duty Off duty Educate employees Protect employer s interests 2013 Winston & Strawn LLP 29

30 Drafting a Social Media Policy Acceptable Uses Employees Company-provided social media sites Who has access Who can post External social media sites Access to social media during working hours 2013 Winston & Strawn LLP 30

31 Drafting a Social Media Policy Educate Employees on Permissible Statements Incorporate your anti-harassment and discrimination policies Be specific about types of statements prohibited (discriminatory statements, bullying, profanity) 2013 Winston & Strawn LLP 31

32 Drafting a Social Media Policy Protect Employer s Interests Require employees to identify themselves as an employee of company Require disclaimer that opinions are those of employee Identify specific information that cannot be disclosed 2013 Winston & Strawn LLP 32

33 Drafting Social Media Policy Protect Employer s Interests Minimize Risk of Liability for Discrimination Reaffirm that only job-related information gained from social media will be used in making employment decisions Friending subordinates? 2013 Winston & Strawn LLP 33

34 Social Media Policy Practical Tips Be specific describe the type of conduct prohibited and why Provide specific disclaimer language Confirm compliance with laws Will not ask for password Will not infringe on non-supervisory employees rights to engage in protected concerted activity 2013 Winston & Strawn LLP 34

35 Social Media Policy Option One: Employees are prohibited from posting in the name of Employer or in a manner that could be reasonably be attributed to Employer. If discussing matters relating to your employment, you must clearly state, The views expressed herein are my own, and not those of my employer. Option Two: Employees are prohibited from speaking to the media, commenting on any legal matters, or using Employer s logo and/or trademarks 2013 Winston & Strawn LLP 35

36 Social Media Policy Option One: Employees are prohibited from engaging in any disrespectful, disparaging, offensive, demeaning, abusive or inappropriate remarks Option Two: Employees are prohibited from engaging in unlawful discrimination, harassment or retaliation through the use of social media 2013 Winston & Strawn LLP 36

37 Social Media Policy Option One: Employees are prohibited from discussing any confidential information through social media Option Two: Employees are prohibited from discussing or disclosing any information relating to Employer s processes, methods of production, customers, vendors, and/or marketing 2013 Winston & Strawn LLP 37

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39 2013 Winston & Strawn LLP Questions?

40 2013 Winston & Strawn LLP Thank You.

41 Contact Information Jennifer Rappoport Labor & Employment Los Angeles (213) Jason Campbell Labor & Employment Los Angeles (213) Winston & Strawn LLP 41