GETTING THE NET TO WORK. What is a Social Networking Site (SNS)? Top 20 Social Networking Sites. December 2, 2009

Transcription

1 Kirstin Story GETTING THE NET TO WORK How Social Networking Impacts the Workplace What is a Social Networking Site (SNS)? A web-based service that allows users to: Construct a public or semi-public profile within a closed system; Create a list of other users with whom they share a connection; View and traverse their own list of connections, as well as those made by others in the system. boyd, d. m., & Ellison, N. B. (2007). Social network sites: Definition, history, and scholarship. Journal of Computer-Mediated Communication, 13(1), article Top 20 Social Networking Sites Facebook.com Myspace.com Twitter.com Flixter.com Linkedin.com Tagged.com Classmates.com Myyearbook.com Livejournal.com Imeem.com Reunion.com Ning.com Blackplanet.com Bebo.com Hi5.com Yuku.com Cafemom.com Friendster.com Xanga.com 360.yahoo.com Top Twenty Five Social Networking Sites February 2009 Social Media Optimization 2009 Lewis and Roca LLP

2 Kirstin Story Broadening Usage of SNS s In September The Nielsen Company reported that time spent on social network and blogging sites accounted for 17 percent of all time spent on the Internet in August 2009, nearly triple the percentage of time spent on the sector a year ago. Nearly 65% of respondents in a recent Business.com study reported using social media as part of their normal work routine, including reading blogs, visiting business profiles on sites like Facebook or LinkedIn or using Twitter to find information and/or communicate about business-related matters. Legal Tricks and Treats of SNS s in the Workplace Boo! At-Will Employment A non-contractual employment relationship is terminable for good cause or no cause Exceptions: Violation of state statute Retaliation Refusal to violate state law Reporting a violation of state law 2009 Lewis and Roca LLP

3 Kirstin Story The First Amendment Termination and discipline Government employees: qualified protection Private employees: no protection Anonymous blogs and posts Right to speak anonymously Enhanced protections against compelled disclosure Libel, defamation, and slander Statements made on the internet could be interpreted as opinion rather than fact Privacy Is there a reasonable expectation of privacy? usage Internet usage Blackberry usage Conduct outside the workplace The more open the communication, the less reasonable the expectation of privacy Tort of Invasion of Privacy Trade Secrets Any formula, pattern, device, or compilation Derives value by not being known or readily ascertainable to competitors Efforts to maintain secrecy Once a trade secret is posted on the Internet, it is effectively part of the public domain, impossible to retrieve Publisher may be liable Subsequent downloaders may not be liable 2009 Lewis and Roca LLP

4 Kirstin Story Trademarks, Trade Dress, Etc. Delta Air Lines Case Queen of the Sky blog Termination for inappropriate photographs of employee posted on blog Photo featured employee in DAL uniform Violation of uniform policy Infringement: consumer confusion as to the origin, sponsorship, or approval of the usage Usage occurs with respect to related goods or services Harassment and Retaliation Harassment: explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. Retaliation: may include any action that is likely to deter reasonable people from pursuing their rights. Doesn t have to occur at the worksite or during work hours. A few suggestions 2009 Lewis and Roca LLP

5 Kirstin Story Written Policies Privacy Use of company equipment, , and networks Confidential, sensitive, trade secret, or personnel information Conduct during (and after*) work hours Use of company name, logos, affiliation, and uniforms EEO Policies Document Document Document Policy Distribution Policy Acknowledgment Performance Counseling and Discipline Screen Shots Print-outs Termination and Separation Agreements Non-disparagement clauses Avoid Sticky Situations DO NOT hack into websites, web pages, or accounts Consider what information you DON T want to know Supervisees and co-workers are still supervisees and co-workers outside the workplace 2009 Lewis and Roca LLP

6 Kirstin Story Please don t do this. That s all, Folks! Q&A will follow the presentation on 2009 Lewis and Roca LLP

7 Christy Hubbard Our New Best Friend Beyond Genetic Testing What You Need to Know To Stay Compliant Genetic Information Non-Discrimination Act of U.S.C. 2000ff, et. seq. Title II prohibits employment discrimination on the basis of genetic information Goals to Prohibit discrimination Encourage genetic testing and research Seems very sci-fi, but it s s more than genetic testing 2009 Lewis and Roca

8 Christy Hubbard Genetic information is Genetic tests of the Employee Genetic tests of the Employee s s family members Manifestation of a disease or disorder in a family member So Knowing that an employee s mother/sister has Cystic Fibrosis Down Syndrome Hemophilia Sickle-cell cell disease Alzheimer s s disease Aggressive onset breast cancer Congenital heart disease Huntington s s disease Means having Protected Genetic Information Genetic information is NOT A manifested (existing) disease, disorder or condition in the employee EE s s with manifested diseases may be protected by ADA, FMLA, state laws Information about gender Information about age 2009 Lewis and Roca

9 Christy Hubbard Unlawful to Refuse to hire Discharge Discriminate in Compensation Terms, Conditions or Privileges of Employment Limit, segregate or classify in a way that limits opportunities Because of genetic information related to the employee Unlawful to Request Require Purchase Genetic information in relation to an employee A family member of the employee Family member Dependent Relative of first through fourth degree Genetic information of a fetus or embryo 2009 Lewis and Roca

10 Christy Hubbard Unlawful to retaliate for Opposing unlawful act or practice Filing a charge Testifying Participating in Investigation Proceeding Hearing Exceptions Inadvertent requests water cooler conversations Information gathered in relation to FMLA certification As part of a wellness program where only EE and HCP receive individualized results General newspapers, magazines, books Monitoring of toxic substances Forensic labs Be careful what you ask for EEOC Draft Guidelines include Water Cooler exception How s s your mom doing? not illegal if good faith question, information kept confidential and not used to discriminate BUT EEs can still claim this is the source of information used for discriminatory purpose 2009 Lewis and Roca

11 Christy Hubbard Water cooler exception Unsolicited s or volunteered information How are you doing today? How s s your son feeling? Overhearing information incidentally Be careful what you ask for Post offer medical exams EEOC considers it a violation of to ask about family medical history ADA can still require a medical exam of all EE s to whom a particular job is offered but cannot get family medical history. Test must focus on EE s CURRENT ability to perform job Same for Fitness for Duty exams Important to ensure your testing facilities are complying FMLA and ADA certifications EEOC: Best practice is to ask HCP not to provide family medical history except where EE took leave to care for a family member with a serious health condition 2009 Lewis and Roca

12 Christy Hubbard Protection of Genetic Information Maintained as a confidential medical record Similar to how ADA records are treated Cannot disclose information unless Employee written request Court order Gov t t officials investigating compliance FMLA compliance Specified health agencies Remedies incorporates the remedies of Title VII protections Compensatory and punitive damages back pay and front pay Emotional pain and suffering hiring, promotion, reinstatement other actions that will make an individual "whole" attorneys' fees, expert witness fees, court costs Poster requirement EEOC: Must post notices in conspicuous places describing S S applicable provisions 2009 Lewis and Roca

13 Christy Hubbard To Do Verify Medical Exam and Fitness for Duty examiners are not taking family medical history Train supervisors and managers that knowledge about EE s s family diseases can be protected genetic information Ensure medical records are separate from employment records Put up appropriate poster Questions? We re available 24/7 Christy Hubbard Lewis and Roca 40 N. Central Avenue Phoenix, AZ (O) (C) Arizona Law Arizona law protects the confidentiality of genetic testing results A.R.S Primarily applies to the health care industry s handling of genetic tests and information 2009 Lewis and Roca

14