Social Media Policy Update The Rules Have Changed Again!

Transcription

1 Social Media Policy Update The Rules Have Changed Again! With Penelope Phillips, J.D. of Felhaber, Larson, Fenlon & Vogt Moderated by Mike Bowers, Executive Editor of DealersEdge

2 Penelope J. Phillips, Attorney, 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 September 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 DEALERSEDGE Penelope J. Phillips, Esq. Felhaber, Larson, Fenlon & Vogt, P.A. 220 South Sixth Street, Suite 2200 Minneapolis, MN (612)

4 THE RULES HAVE CHANGED AGAIN

5 WHAT IS SOCIAL MEDIA? Facebook Twitter LinkedIn Tumblr

6 2012 STATISTICS Facebook is still king. 901 million active users. 500 million mobile users. 1 in 7.7 people in the world has a Facebook account. Twitter continues to grow. 140 million active users. > 50% of its active users log on every day. 340 million daily tweets.

7 2012 STATISTICS Pinterest Now #3 in traffic after Twitter and Facebook million users. Top demographic: Women ages 25 to 34. LinkedIn 161 million active users in over 200 countries. User stats: avg. age of 41; 80.1% have at least college degree; avg. household income of $109,703.

8 2012 TRENDS The average US internet users spends 32 hours online every month. More than 3/4 of the total population will be online in Time spent social networking now exceeds time spent on % of time on social networks. 8.3% of time on . Mobile Social Networking Explodes Mobile internet users will reach million in 2012, up 17.1% from 2011.

9 2012 TRENDS Social Media and Fortune 500 Companies 23% have a public-facing corporate blog. 58% have corporate Facebook account. 62% have Twitter account. Social Media and Small Businesses 53% of small businesses are using social media.

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11 SOCIAL MEDIA BUSINESS APPLICATIONS What are business applications of Social Media for Your Business? Marketing, brand awareness Keep in touch with customers and potential customers Updating inventory, specials Free and effective advertising

12 SOCIAL MEDIA LEGAL IMPLICATIONS What are the potential legal implications arising out of Social Media for your Business? Business and legal risks stemming directly from employee use of social media. Legal risks stemming from firing or taking other adverse action due to use of social media. Legal risks for relying on social media to make hiring decisions.

13 EMPLOYER POLICIES Tend to be overbroad Restrict statements that are protected by the National Labor Relations Act. Section 7 protects right of employees to engage in concerted activities for mutual aid or protection.

14 EMPLOYER POLICIES What is the trend? Seemingly well-intentioned appropriate policy statements and disciplinary actions may be in violation of the law. Board is closely eyeing social media policies and disciplinary actions. Distinction between protected social media posts, in which employees discuss shared concerns over terms and conditions of employment, and those that amount to mere individual gripes.

15 EMPLOYER POLICIES Prohibiting disparaging of company, management, or coworkers: Costco Wholesale Corp, 358 NLRB No. 106 (2012) 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. Board said was too broad as it could be interpreted to prohibit protected Section 7 speech under the National Labor Relations Act.

16 EMPLOYER POLICIES American Medical Response of Connecticut, Case No. 34-CA (October 5, 2010) (Advice Memorandum) employees are prohibited from making disparaging, discriminatory, or defamatory comments when discussing the company, or the employee s superiors, co-workers, and/or competitors. The NLRB General Counsel found that this could easily be construed to infringe on Section 7 rights because it did not exclude them.

17 EMPLOYER POLICIES American Medical Response of Connecticut, continued In settlement, the employer agreed to revise its overly broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

18 EMPLOYER POLICIES G4S Secure Solutions (USA) Inc., 2012 WL (NLRB Div. of Judges Mar. 29, 2012) Social media policy provided that employees were not permitted to comment on work related legal matters without express permission of the Legal Department. The policy included a disclaimer that it should not be interpreted to interfere with employees Section 7 rights. Because the term legal matters was not defined in the social media policy, employees could interpret the prohibition to chill protected activity.

19 EMPLOYER POLICIES But no protection for disloyal behavior or disparaging customers or business activities. Endicott Interconnect Techs. V. NLRB, 453 F.3d 532 (D.C. Cir. 2006) Employee post to newspaper forum that layoff of 200 employees was causing the business to be tanked and was going to put it into the dirt. Found to be so detrimentally disloyal that constituted a sharp, public, disparaging attack upon the quality of the company s product and its business policies at a critical time for the company and was unprotected by the NLRA.

20 EMPLOYER POLICIES Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) Employee at car dealership fired for posting two sets of photos: 1) 13 y/o behind wheel and subsequent crashed car in showroom; 2) bottled water, hot dogs and chips at luxury car promotional event. Board said that sarcastic comments about inexpensive food and beverage were protected concerted activity because were about improving working conditions. But comments about and photos of car crash were not because they were posted without any connection to the terms and conditions of employment.

21 ITEMS TO CONSIDER IN YOUR BUSINESS SOCIAL MEDIA POLICY Walmart s social media policy stamped approved by the Board. Board found it included sufficient examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity.

22 ITEMS TO CONSIDER IN YOUR BUSINESS SOCIAL MEDIA POLICY For example the policy advises employees to be respectful and fair and courteous when posting comments, complaints, photos or videos online and specifically identifies types of prohibited posts, such as offensive posts meant to intentionally harm someone s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

23 ITEMS TO CONSIDER IN YOUR BUSINESS SOCIAL MEDIA POLICY Savings clauses are recommended, but may not totally cure. A disclaimer that the policy is not meant to interfere with Section 7 rights will not always save a defective policy.

24 ITEMS TO CONSIDER IN YOUR BUSINESS SOCIAL MEDIA POLICY Generic or overly broad courtesy clauses should be avoided. Use Examples: personal insults about staff members vulgar language

25 ITEMS TO CONSIDER IN YOUR BUSINESS SOCIAL MEDIA POLICY Rants may be prohibited So long as it s an individual employee rant, and not dialogue with other employees.

26 EMPLOYER POLICIES How to distinguish? An individual gripe is one where an employee: 1) Has no particular audience in mind when making a post; 2) The post contains no language suggesting that the employee sought to initiate or induce coworkers to engage in group action; and 3) The post did not grow out of a prior discussion about terms and conditions of employment with coworkers.

27 STATISTICS Screening Applicants (Reppler, 2011) 91% of ERs use SNS (Twitter, Facebook, LinkedIn) to screen job applicants. 69% of those recruiters eliminated a candidate based on information discovered. 13% because applicant lied about their qualifications. 11% because of inappropriate comments, photos, ect.

28 STATISTICS Using SNS to Screen Applicants (Reppler, 2011) 68% employed someone because of what was said about them on a SNS. 39% because of a positive perception of the candidate s personality or the individual is an organizational fit.

29 HIRING IMPLICATIONS Viewing a Facebook page to get an estimate of an individual s personality traits: whether they would be a good fit; are they outgoing; what are their interests; what are the comments by their friends like Sites may allow potential employers to discover protected information (e.g. age, marital status, familial status, religious affiliation, political views, etc.)

30 RISKS ASSOCIATED WITH Protected Classes SCREENING Employer may discover race, gender, age, marital status, medical condition, religion, sexual orientation, disability and political affiliation. Lawful Off-Duty Conduct Includes food, alcoholic or nonalcoholic beverages, and tobacco.

31 RISKS ASSOCIATED WITH Fair Credit Reporting Act SCREENING Governs employment background checks for the purpose of hiring. Requires an applicant s/employee s consent before an employer may engage a third party consumer reporting agency to produce a consumer report on that individual.

32 RISKS ASSOCIATED WITH SCREENING Accuracy/Reliability Are you looking at the right person?

33 ASKING FOR EMPLOYEE PASSWORDS New SNS Password Laws Maryland (2012 Md. Laws 233) in May 2012, MD became the 1 st state to prohibit employers from requiring or requesting employees or job applicants to disclose their user names or passwords. Applies to public employers. Illinois in August 2012, passed a similar law.

34 ASKING FOR EMPLOYEE PASSWORDS More Legislation to Come? Federal (H.R / S. 3074) proposed legislation would prohibit current or potential employers from requiring a username, password, or other access to online content. House version would extend prohibition to colleges, universities, and K-12 schools. Bills have stalled in committee.

35 HIRING IMPLICATIONS Potential solution: Have non-decision maker conduct search and filter out information related to personal characteristics before passing along to hiring manager. Have searches run by employer and not third party to avoid potential issues under Fair Credit Reporting Act. Carefully consider criteria in determining how and when to use social media in evaluating applicants.

36 FORMER EMPLOYEES LinkedIn Recommendations Recommending an individual on LinkedIn may become problematic if they are terminated. Only provide reviews to the same extent you would provide written references.

37 FORMER EMPLOYEES Departing Employees Restrictive covenants and non-solicitation agreements. Social Media has added a layer of complexity to the determination of whether an employee violates a restrictive covenant.

38 FORMER EMPLOYEES Departing Employees, continued Pre-Paid Legal Services, Inc. v. Cahill, 12-cv-346 (E.D. Okla. Feb 12, 2013) Former employee s public posts on personal Facebook page did not constitute solicitation under terms of non-solicitation agreement because invitations did not request the coworkers to follow the former employee, did not contain any information about the new employer and they were sent by Twitter instead of as targeted s.

39 PRIVACY LAWS Electronic Communications Privacy Act The Wiretap Act Prohibits the intentional interception of electronic communications, including , while in transit. Stored Communications Act Make it illegal for any person to intentionally access stored communications without authorization. *Exception for consent* *Exception for owners of system*

40 IMPORTANCE OF POLICIES City of Ontario v. Quon, 130 S.Ct (2010) Officers texts on City-issued pagers exceeded phone provider limits over several months. Chief ordered review of whether existing limits were too low and provider submitted transcripts of Quon s texts, which included many non-work related messages and some sexually explicit ones to his girlfriend.

41 IMPORTANCE OF POLICIES City of Ontario v. Quon, 130 S.Ct (2010) Employer s reason for search of employee s text messages (to determine whether employer s contractual character limit was sufficient to meet the employer s needs) was reasonable because it had a non-investigatory, workrelated purpose. Employer s search was not excessively intrusive. It was limited in scope (two-month sampling, redaction of texts sent before or after work hours).

42 IMPORTANCE OF POLICIES Reasonable Expectation of Privacy? Employee was told that his messages were subject to audit. The City s Computer Usage, Internet and Policy stated that [u]sers should have no expectation of privacy or confidentiality when using City computers. But, the Court essentially avoided the question. Nevertheless, employer policies will be key component. Employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

43 SEXUAL HARASSMENT IN CYBERSPACE Blakey v. Continental Airlines (N.J. 2000) Intranet bulletin board used for scheduling pilots. In chat area, male pilots posted negative remarks about a female pilot who sued for sexual harassment. Court held that the ER may have duty to stop off-site harassment. Held ER has certain duties: ER has no duty to monitor private communications of its employees. But, ER must take effective measures to stop coemployee harassment when the employer knows or has reason to know of the harassment.

44 Questions?