Social Media in the Workplace Pitfalls and Best Practices for Employers David Van Pelt Michael L. Gallion June 11, 2014 Sheppard, Mullin, Richter & Hampton LLP 2014
When Can You Use Social Media in Recruiting, Investigating, and Disciplining Employees?
What is Social Media? Websites and other online methods of communication used by large groups of people to share information and develop social and professional connections.
QUIZ: Lawful or Unlawful? 1. An employee posts the following on Facebook: OMG I hate my job! My boss is a jerk and hasn t paid me decently since I started. Plus, I get all the crappy shifts. If a co-worker reports it, can you fire the employee who posted it? YES or NO?
ANSWER: No, according to the National Labor Relations Board ( NLRB ). The post includes complaints about the terms and conditions of the employee s job.
NLRB s Guidance on Social Media NLRB has issued three reports on social media in the workplace: Social media postings may constitute protected employee activity. Social media policies prohibiting employees from posting about work matters are unlawful. Social media policies in employee handbooks will be closely scrutinized for any chilling effect. This NLRB policy applies to all employers, not just unionized workplaces! The NLRB reports suggested that most social media policies could be considered overbroad, and violate the National Labor Relations Act.
QUIZ: Lawful or Unlawful? 2. You are close to hiring an employee for a key position that will deal with the public, but you want to check the applicant s online profile to see what kind of image they portray online. Can you ask them for their password to view their social media posts as a condition of hire? YES or NO?
ANSWER: Not in California California Labor Code 980 Employers cannot ask (or require) applicants or employees to: Disclose user names or passwords for the purpose of accessing personal social media; Access personal social media in the presence of the employer; or Divulge personal social media. The law took effect in 2013.
What Labor Code 980 Does Not Prohibit: It does not prohibit requiring employees to disclose social media relevant to an investigation into employee misconduct or violation of law. Does this permit employers to divulge username/passwords, or just the types of their social media accounts? Unclear. It does not prohibit requiring employees to disclose username/passwords of employerissued electronic devices.
QUIZ: Lawful or Unlawful? 3. Instead of asking the employee for access to social media accounts, you log onto Facebook and view the employee s public wall. You see that the person has posted racially-offensive photographs. Can you disqualify an applicant on that basis? YES or NO?
ANSWER: Yes (probably) Follow-up question: What if the applicant s Facebook post features pictures of the employee and his same sex partner. If the applicant is denied the job, could he use this as evidence of sexual orientation discrimination?
ANSWER: Possibly The Lesson: Be careful about the information you try to uncover about applicants and employees from social media. BE CAREFUL
QUIZ: Lawful or Unlawful? An employee on workers compensation leave for a back injury posts on Twitter the following: Your Employee @Your_Employee Waterskiing in Havasu luv it! Can you use this information to pursue workers compensation fraud?
ANSWER: Yes What the employee has made public can usually be used against him/her.
QUIZ: Lawful or Unlawful? Are these social media policies permissible? 1) A policy asking employees to be completely accurate and not misleading in their posts. 2) Asking employees to think carefully about friending co-workers. 3) A policy that encouraged employees to resolve concerns about work by speaking with co-workers, supervisors, or managers instead of online. 4) Asking employees to obtain permission to publicly communicate about the company.
ANSWER: No. They are all prohibited at least according to NLRB.
What is Permitted? Prohibiting posting of an employer s trade secrets or attorney-client privileged information. A policy stating harassment, bullying, discrimination, or retaliation that is impermissible at work is also impermissible online, even if done after hours from home. Asking employees to clarify that their postings are their own, and not those of their employer.
Why have a Social Media Policy? Ownership Protect Proprietary Information Protect Trade Secrets Set expectations regarding acceptable conduct
Most Recent Social Media Decisions Kroger Co. v. Granger, NLRB Case No.: 07-CA-098566 (April 2014) The NLRB held that Kroger s social media policy was too broad and unlawful: The policy required workers to issue a disclaimer anytime they discussed work-related information; The policy restricted discussion of confidential or proprietary information, including the Company s business plans; The policy required employees to obtain permission before using the Company s trademarks (including logos); The policy prohibited any online behavior that reflected negatively on the Company.
Most Recent Social Media Decisions Richmond District Neighborhood Center, NLRB Case No.: 20-CA-091748 (Nov. 2013) After-school and summer programs for children. Employees who worked at one of the employer s teen centers were asked to evaluate the supervisor s job performance and listed various complaints. Two of the employees shared these complaints on Facebook. They also discussed their plans to return to work and engage in unpermitted activities, such as having crazy events, playing loud music, and taking field trips. Employees were not hired the next summer. Not protected activity under the NLRA.
Most Recent Social Media Settlement Valero Energy Rescinds Social Media Policy to Settle Suit (April 2014) Settlement requires Valero to: Notify all employees will rescind unlawful social media policy. Post NLRB notices in its 52 facilities. Mail notices to employees advising them that they will not be prohibited from using social media to discuss their terms and conditions of employment.
Social Media Policy Questions Do you have a social media policy? What does it say? Does it define ownership? Does it restrict employee posts? Does it define trade secrets or confidential information?
Sheppard Mullin Richter & Hampton LLP 2014 QUESTIONS?
David Van Pelt Special Counsel Labor & Employment (310) 228-3734 DVanPelt@sheppardmullin.com Michael Gallion Partner Labor & Employment (310) 228-3706 MGallion@sheppardmullin.com Thank you! Sheppard Mullin Richter & Hampton LLP 2014 424912788_1.ppt