SOCIAL MEDIA IN THE WORKPLACE: WHAT YOU NEED TO KNOW

SOCIAL MEDIA IN THE WORKPLACE: WHAT YOU NEED TO KNOW Region II Conference April 24, 2013 Michael D. Billok, Esq. Bond, Schoeneck & King, PLLC 1 Attorneys at Law Since 1897

Agenda What is social media and why does it matter? What are the workplace concerns? What can be done to address these concerns? 2

WHAT IS SOCIAL MEDIA AND WHY DOES IT MATTER? 3

Social Media an umbrella term that defines the various activities that integrate technology, social interaction, and the construction of words, pictures, videos, and audio 4

Relating to Social Networking 7 Social Networking Tool Real World Corollary LinkedIn The Office Facebook Backyard Barbeque Twitter Street Corner

Your Brand 8

WHAT ARE THE WORKPLACE CONCERNS? 9

Social Media in the Workplace According to a recent SHRM survey of HR professionals: 68% are using social media to reach potential customers, current customers, potential employees or others outside the organization 73% said they do not provide any social media training to employees who engage in social media activities on behalf of the organization. 10

Where to begin Can an employer search social media content as part of the hiring process? Can/should an employer access/monitor employee social media posts? Can an employer discipline/terminate employees for what they say/do on social media? 11

Can an employer use search social media content as part of the hiring process? Yes. However, there are some legal concerns to be aware of. Namely: 12 Title VII ADEA ADA NLRA FMLA GINA NYHRL

Use of Social Media in Hiring 56% of employers use social media to screen potential job candidates* Up from 34% in 2008 20% plan to use social media in the future What is being searched? Facebook 58% Twitter 42% LinkedIn 95% Other 6% MySpace 3% * 2011 Society for Human Resource Management Survey 13

What Caused Employers to NOT Hire a Candidate Inappropriate photos/information 49% References to drug/alcohol abuse 45% Negative comments about previous employers/clients/ coworkers 33% Poor communication skills 35% Discriminatory comments 28% Misrepresentations about qualifications 22% * April 2012 CareerBuilder Survey 14

Case Study Bob, a hiring manager at ABC Company, interviews Steve, a candidate for an open position. Steve s resume made him a borderline candidate and Steve did not perform well in the interview. Nonetheless, after the interview, Bob Googles Steve s name and discovers Steve s public Facebook page. The Facebook page reveals Steve is 55, gay, Jewish and immigrated from Poland. Bob also sees that Steve is a fan of a union that has been attempting to organize ABC Company. (cont d) 15

Case Study The next candidate interviewed for the position, Sally, has a much stronger educational background and work experience. She is also under 40, U.S. born, and heterosexual and has never belonged to or supported a union. Sally interviews very well and Bob decides to offer her the job. Steve files a failure to hire claim alleging discrimination based on his age, national origin, sexual orientation and former union affiliation. 16

Should Social Media Be Part of The Screening Process? Pros Important decision, need best information available May give you insight into the applicant s character Easier to avoid a bad hire than to get rid of a bad hire Failure to hire cases are less common than termination lawsuits May help to avoid a negligent hiring case Cons Sites contain lots of information that you cannot consider in the hiring process Possession of this information could taint an otherwise wellbased decision Possible to make a decision based on incorrect information Litigation may result 17

What can employer do to address these concerns? Determine if social media background checks will be conducted If they will, for what job categories/positions? scope of search? internally or by a third party? (by mindful of FCRA concerns) Either way, prepare/modify and implement policy 18

Screening/Hiring Policy At a Minimum Adopt a policy that clearly states that information regarding protected status obtained through social media (or any other source) shall not be considered in hiring decisions. (cont d) 19

If Social Media Background Checks Will Be Conducted Develop a social media in hiring policy Define search criteria Address when search will occur ideally later in the process, if not post-offer Pros avoids tainting otherwise clear-cut decisions Cons focuses the applicant on the reason for the decision List information you will not look at or use Identify information from search that should be reported to those involved in hiring 20

Implementation Have non-decision maker conduct search and report only relevant, nonprotected information to decision maker Instruct individual conducting search not to dig into inadmissable information 21

Screening / Hiring Dos Use the right people to conduct searches Consider use of a third-party (FCRA concerns) Insure impermissible information (e.g., protected status) is not used in decision making Attempt to verify information before relying on it Retain information obtained in search Information relied on Search criteria 22

Screening / Hiring Don ts Access any site to which the employer has not been provided access Falsify information or impersonate in order to obtain access 23

Can/should an employer access/monitor employee social media posts? Yes. However, there are legal concerns that to be aware of. Namely: 24 Electronic Communications Privacy Act New York Wiretapping Law Stored Communications Act Anti-discrimination laws

Electronic Communications Privacy Laws Electronic Communications Privacy Act Prohibits intentional, unauthorized, interception and access of wire, oral or electronic communications (including e-mail) New York Penal Law Section 250 Wiretapping Law (Class E felony) Prohibits monitoring, intercepting or accessing electronic communications without consent of one of the parties New Jersey, Section 2A:156A-4 25 Crime to intercept or endeavor to intercept electronic communication without consent.

Consent is Key Consent to Intercept, monitor, access, disclose Voice mail, telephone, e-mail, Internet, computer files May be express and/or implied 26

Stored Communications Act Prohibits intentional and unauthorized access of wire or electronic communications while in electronic storage Does not apply to: Provider of wire or electronic communications service User of that service Employee may have privacy claim where an employer accesses a restricted social network 27

Case Study Employee creates and maintains Facebook group to talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in Access by invitation only and given to select coworkers Manager hears of Facebook group and asks coworker with access to provide his login information Manager uses coworkers access information to access forum After viewing the forum and its discussion of sexual and criminal acts and fantasies pertaining to coworkers and customers, employee was fired (cont d) 28

Legal Concerns Did the manager have the right to gain access in this manner? Did the coworker freely share the login information? Did the coworker have the authority to share his/her access to the managers? 29

What can be done to address these concerns? Develop, implement and educate employees on your Technology Use Policy When appropriate, access/monitor Limit who may authorize/conduct monitoring, access and disclosure Insure private matters are not disclosed unnecessarily 30

Technology Use Policy Define technologic resources (computer systems, internet access, email and voicemail owned or loaned by Employer, or used on or accessed from employer s premises or on employer business). Define acceptable and unacceptable uses. Lower expectation of privacy Employer s technologic resources are primarily for business use. Employer receives the right to access, intercept and monitor all information accessed, sent, or terminated through employer s system. Use = Consent. Obtain written acknowledgment/consent. 31

Can an employer discipline/terminate employees for what they say/do on social media? Yes. However, there are some legal concerns you should be aware of. Namely, the National Labor Relations Act s protection of protected, concerted activity. 32

Employee Discipline for Social Media Conduct 24% of employers have disciplined an employee for violating social media policies Up from 17% in 2009 *2011 Proofpoint Outbound/DLP Study for E-mail Security 33

Social Media and the NLRB The NLRB Office of the General Counsel has produced three reports summarizing cases before the NLRB related to: The lawfulness of an employer s social media policies and rules The protected and/or concerted nature of employees social media posts (i.e., employee discipline related to social media use). 34

NLRA Section 7 provides that employees shall have the right... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... Section 8 makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]... or to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter.... 35

Lawful or Unlawful? On Facebook, two employees at a sports bar complain about the bar s tax withholding policies. One of the employees said something obscene about the fact that she now owed back taxes for 2010. Employer fired the employees for not being loyal enough 36

Lawful or Unlawful? A reporter at a newspaper opens a Twitter account at his employer s urging and identifies himself as a reporter with the newspaper in his bio. Reporter tweets about how bad his paper s copy editors were and his employer issued him a warning as a result. Reporter later posted insensitive things about are homicides and criticized a local television station. Newspaper terminated reporter s employment. 37

Lawful or Unlawful? A bartender was upset about that waitresses did not have to share tips with him even though he helped serve food. Bartender complained about this policy to another bartender, who agreed it sucked. Neither bartender raised this issue with management. The bartender then vented on his Facebook wall to a relative, complaining that he hadn t had a raise in five years and that he was doing the waitresses work without tips. (cont d) 38

Lawful or Unlawful? He also referred to the employer s customers as rednecks and stated that he hoped they choked on glass as they drove home drunk. No coworkers commented on Facebook. The employer saw the Facebook post and terminated the bartender. 39

When is a social media post protected? When it is posted by a nonsupervisory employee; and Constitutes protected, concerted activity. 40

Protected Activity Protected activity includes a broad range of conduct that relates to wages, hours, working conditions, and other terms and conditions of employment, or banding together for mutual aid or protection. 41

Concerted Activity Activity is concerted when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee himself. Considerations: Did the employee appeal to co-workers for assistance? Did employees discuss the issue before or contemporaneous with the online posting? Did employees raise the concern with management (online or off)? Was there an online discussion with coworkers? 42

Does protected, concerted activity ever lose its protection? Yes. Activity may lose its protection if it is opprobrious or disloyal, reckless, or maliciously untrue. Considerations: 43 where the discussion occurred (i.e., in the workplace) subject matter of the discussion nature of the outburst whether the outburst was provoked by a ULP by the employer

Protected Concerted Activity on Social Media In a Nutshell Social media posts by supervisory employees not protected. Purely personal gripes or posts directed at nonemployee relatives/friends, even about workrelated issues -- may not be protected. Disparaging comments and profane, rude or vulgar language -- may be protected. (cont d) 44

Protected Concerted Activity on Social Media In a Nutshell Social media posts by nonsupervisory employees concerning a workplace concern that generate comments by other employees most likely protected. Even if no other employees respond, the post is likely to be found protected if: the post is on a site designed to be seen by fellow employees, there is a clear intent to initiate or further group action, and/or the issues has been presented to management and/or discussed with fellow employees. 45

What do you need to do to address these concerns? Exercise extreme caution when disciplining/ terminating an employee for social media conduct. Consult with counsel to insure compliance with applicable law. 46

Supervisory Personnel Friending Subordinates Benefits Builds stronger connections Stronger team results Drawbacks May learn information you never wanted to know (and vice versa) 47

What do you need to do to address these concerns? Educate supervisory personnel Recommend personal/professional dichotomy Personal Facebook Professional - LinkedIn 48

Publicity Concerns Group of employees at Domino s Pizza filmed themselves doing unspeakable things in the kitchen and uploaded the video to YouTube. Video went viral Battle Creek, Michigan Mayor accidentally tweeted city employees confidential information, including social security numbers High profile PR executive landed in Memphis and tweeted I would die if I had to live here. Problem Memphis is home to FedEx, one of the Exec s largest clients 49

WHAT CAN BE DONE TO ADDRESS THESE CONCERNS? 50

Why So Complicated? Organizational Level No generally accepted standard for technology usage and behavior Varying degrees of employer tolerance (cont d) 51

Why So Complicated? Individual Level Informality of social media/email Elimination of wall between personal and private lives Perception disparity 53% of employees believe social networking pages are none of their employers business 51% of employees believe employers do not have the right to monitor employee email use 52

Why So Complicated? The essential conflict Employers are searching for the best information available to make decisions Employees expect their private information will not be used 53

Social Media Policies Employers enforcing workplace bans on social-media sites 20% Employers with a social-network policy instead of a ban 52% Employers with no policy concerning employees online activity outside of work 45% Employers not monitoring employees online activity outside of work 21% Employers taking action when apprised of an issue 48% * 2011 Society for Corporate Compliance and Ethics Survey 54

What Should Employers Do Now? At a minimum, modify existing policies to address concerns arising from social media Screening/hiring Anti-harassment/retaliation References educate supervisory personnel on issues arising from social media use train, train, train 55

Developing a Social Media Policy Avoid temptation to outright ban social media use Brainstorm with constituent groups What social media tools are currently being used and why? Access/Use at Work Block or prohibit use of? Currently 55% of employers surveyed block at least some social media access at work (down from 66% in 2009) Who? And for what purpose? Legal limitations Monitoring/Enforcement 56

Social Media Policies Guiding Principles Be specific Give examples Include a savings clause Nothing in this policy will be interpreted to limit or interfere with your rights under Section 7 of the National Labor Relations Act or other applicable labor laws or regulations. 57

Social Media Policy - Dos Define social media & why a policy is necessary Address employers overall philosophy Identify scope (e.g., contractors, interns) Include latest technologies with flexibility to cover new technologies Address limits on use outside of work on working time (define working time) on employer s technological resources (cont d) 58

Social Media Policy - Dos Address use of company name, logo, product photos, & other trademarked materials (except out Section 7 activities) If employees are permitted to post about employer s products/services require disclosure of relationship to employer. (Reference FTC Guidelines) Prohibit employees from providing references/ recommendations of other current/former employees (e.g., LinkedIn) Address expectations regarding: business use personal use 59 (cont d)

Social Media Policy - Dos Prohibit: Speaking on behalf of the employer (consult with counsel) Disclosure of proprietary/confidential information (define) Disparagement of customers/competitors Communication with the media on behalf of the employer Obscene and harassing language/images Unlawful harassment, bullying, and other wrongful workplace behavior Exempt Section 7 conduct from prohibitions (cont d) 60

Social Media Policy - Dos Address consequences of violating policy address Section 7 rights Identify central source, such as HR, for reporting alleged violations Put employees on notice of employer monitoring Integrate with other corporate policies (e.g., discrimination, ethics, code of conduct) 61

Social Media Policy Don ts Do not prohibit: disparaging remarks about the company or supervisory personnel inappropriate discussions about the company comments that might damage the reputation of the employer or cause embarrassment to it disclosure of confidential information or confidential personnel information (cont d) 62

Social Media Policy Don ts Do not prohibit: offensive, demeaning, abusive or inappropriate remarks friending other employees use of social media on personal devices during nonworking time 63

Using Social Media on Behalf of the Employer Ownership of Accounts An employer may own an employee s social media account where they encourage employees to create social media accounts for professional networking and promoting. To avoid confusion/litigation, take pro-active steps to insure ownership is clear. 64

Takeaways If employees utilize social media in the course of performing their job, insure your social media policy specifies control and ownership of accounts used in the course of employment by requiring: accounts be set up using an employer-email address and identify the employer as the account holder/subscriber; account holders to disclose password to employer when established/changed, upon request, and upon termination; and employees to relinquish all right to access such accounts upon termination of employment or transfer from position (cont d) 65

Takeaways Retain right of the employer to unilaterally change password(s) and block access to such accounts. 66

Implementation Have policy reviewed by counsel Announce/distribute policies - anticipate pushback Include as a part of your handbook/policy manual Obtain employee acknowledgment of receipt Educate workforce 67

Social Media Training All personnel What is social media Employer s expectations regarding social media use on employer s technical resources at work outside of work Employer s use of social media Bad customer experiences and social media Employer s policy 68

Social Media Training Supervisory personnel Use in hiring NLRA protections Lower expectations Friending subordinates Personnel engaged in social media on employer s behalf Goals/objectives of social media use Expectations regarding use Periodically remind all employees of policy 69

SOCIAL MEDIA IN THE WORKPLACE: WHAT YOU NEED TO KNOW Region II Conference April 24, 2013 Michael D. Billok, Esq. Bond, Schoeneck & King, PLLC 71 Attorneys at Law Since 1897