The Evolution of Social Networking in the Workplace: How to Keep Your Social Media Policy Relevant in the Face of Constant Change

Transcription

1 The Evolution of Social Networking in the Workplace: How to Keep Your Social Media Policy Relevant in the Face of Constant Change Rebecca Brazzano Joëlle E. Quilla

2 Overview Social Media In The Workplace New Jersey Legislation Regulating Social Media By Employers Federal Regulations and Guidance on Social Media Employer Considerations In Creating Social Media Policies Application of Legal and Regulatory Framework Sample Social Media Policies

3 Social Media Use On Company Time 64% 64% of employees visit non-work related websites every day during work hours (down nearly 10% from 2008) 3% 79% do not care whether their employers block access to certain websites, and that it would not affect their decision to work there. 18% said the restrictions would make them look unfavorably on the company, 3% percent said the company's no-nonsense approach actually makes it a more attractive place to work 18% 79% SOURCE: Salary.com surveyed 3,200 people from February to March

4 Recent Statistics 50% 40% 30% 20% 10% 0% Most Frequented Websites While At Work Facebook LinkedIn Yahoo Google+ Amazon.com SOURCE: Salary.com surveyed 3,200 people from February to March

5 Recent Statistics 24% 16% 43% of employees work in organizations in which social media access is completely open. 24% 43% reported that their access was monitored. Only 16% of companies completely block their employees access to social media at work 31% of respondents described the policy as being part of general guidelines for use technology, 23% report having a specific social media policy, 23% report having no policy at all, 17% report informal guidelines 23% 17% 23% 31% SOURCE:

6 Results Of Pre-webinar Survey Does your employer currently have a social media policy? If, so are terms of the policy generally accessible/communicated to employees? 31% 69% 9% 9% 82% YES NO YES NO DON'T KNOW

7 Results Of Pre-webinar Survey Does your organization (including you in your professional role) use social media to advertise the business or its products? 13% 31% 56% YES NO DON'T KNOW Does your organization encourage employees to engage with your business social media profiles? Does your organization limit employee access to personal social media profiles during business hours? 38% 31% 31% 25% YES 50% 25% NO DON'T KNOW YES NO DON'T KNOW

8 Results Of Pre-webinar Survey Has your organization (including you in your professional role) dealt with any employee disputes arising out of social media profiles or policies? 33% 34% 33% YES NO DON'T KNOW

9 Recent Statistics Employees top three purposes for using social sites at work were: 49% connect with co-workers 47% fun social platform to connect with others 44% using social media to connect with customers 50% 40% SOURCE:

10 Company s Approach To Social Media In Workplace 33% of employers responding reported having been involved in some sort of employee discipline involving social media Nearly half of all companies still do not have a formal, written, social media policy Source: IAPP Global Privacy Summit, March

11 Social Media As A Hiring Tool - Benefits BENEFIT Social Networking Can Be An Effective Recruiting and Hiring Tool RISK You May Learn More About The Candidate Than You Are Entitled To Know

12 BENEFIT

13 Pitfalls Potential Failure to Hire Discrimination Claims (Disparate Treatment) Profiles may reveal information regarding protected classifications, making it difficult to demonstrate that information did not factor into the hiring process Potential Disparate Impact Claims Relying too heavily on information available through social networking sites may impact hiring practices -- some groups may be more likely to have profile pages than others

14 Social Media As A Hiring Tool - Pitfalls Potential Violations of State and Federal Law Potential for discrimination (disparate treatment or adverse impact) claims Potential for violation of state privacy laws Potential for bad publicity Potential to rule out qualified candidates based on their social media presence Contact counsel for guidance when conducting a workplace investigation that involves social media. Social media can be important evidence when investigating various workplace allegations, but it is an ever changing area of the law that requires skill to navigate

15 Government Regulation of Social Media In The Workplace New Jersey Legislation Regulating Social Media By Employers Federal Regulations and Guidance on Social Media

16 New Jersey Bill A2878 May 2012 Introduced to New Jersey General Assembly June 2012 Passed the Assembly, sent to the Senate October 2012 March 21, 2013 Senate passed an amended version of the bill Assembly passed amended version 75-2 March 2013 Sent to Governor Chris Christie for signing

17 New Jersey Bill A2878 Assemblyman Ruben Ramos reportedly argued that this law is necessary to prevent invasions of privacy If we don t draw this line in the sand now, who knows how far this invasion of privacy might be taken. In an economy where employers clearly have the upper hand, we need to protect the rights of job seekers from being trampled

18 New Jersey Bill A2878 DEFINITIONS Electronic Communications Device Employer Includes computer, telephone, personal digital assistant, or similar device Includes any employer, agent, representative, or designee. Excludes Department of Corrections, State Parole Board, county corrections departments, or any State or local law enforcement agency Personal Account Account, service, or profile on a social networking website used exclusively for personal communications unrelated to any business purposes of employer Social Networking Website Means an Internet-based service that allows individuals to construct a public or semi-public profile within a bounded system created by the service, create a list of other users with whom they share a connection within the system, and view and navigate their list of connections and those made by others within the system

19 New Jersey Bill A2878 Requiring or requesting applicant or employee usernames, passwords, or any access to personal account or service Prohibits Employers From Require or request that applicant or employee disclose whether they have a personal account Requiring an applicant to waive these protections as a condition of applying for or receiving an offer of employment, any such agreement is void and unenforceable

20 New Jersey Bill A2878 Retaliating or discriminating against an employee or candidate for: Prohibits Employers From Refusing to disclose a user name or password or to provide access to a personal account or service Filing a civil complaint for an employer s violation of this law Testifying, assisting or participating in an investigation or proceeding arising from this law Or otherwise opposing a violation of this law

21 Implications of Violation Upon violation of the statue, if enacted as drafted, an aggrieved individual may sue within one year from the date of the alleged violation TO AN APPLICANT injunctive relief compensatory and consequential damages incurred, taking into consideration failure to hire attorney s fees TO AN EMPLOYEE injunctive relief, including reinstatement compensatory and consequential damages incurred attorney s fees An employer who violates this statute shall be subject to a civil penalty of $1,000 for the first offense and up to $2,500 for every subsequent offense

22 New Jersey Bill A2878 New Jersey Governor Chris Christie has yet to decide whether to sign the legislation. According to a spokesperson of the governor: We ll have to see the bill in its final form and consider it, and the Governor will act within the allotted time allowed Governor Christie did sign a similar law in December 2012, prohibiting public and private colleges and universities from requiring applicants and students to disclose their social media accounts and passwords (2012, N.J. Laws c. 75)

23 The New Jersey Law Does Not Prohibit Employers from: accessing employee or candidate public social media page restricting employees access to their social media pages while at work

24 Other States Social Networking Laws According to the National Conference of State Legislatures, as of April 22, social media protection bills directed to educational institutions or employers, or both, were pending in a number of other states: AZ, CO, CT, GA, HI, IA, KS, LA, ME, MA, MN, MS, MO, MT, ND, NH, NY, NC, OH, OR, PA, RI, TX, VT and WA. These legislative proposals prohibit employers from requesting employee or applicant social media usernames or passwords

25 Other States Social Networking Laws Several other states have social media protection bills pending that are different than New Jersey s, including Nebraska and Nevada. Nebraska prohibits employees from downloading employer proprietary information to their social networking pages. Nevada also allows employers to view a candidates consumer reports in evaluating them for hiring purposes A number of states have recently passed social media protection laws, including: Arkansas, California, Delaware, Illinois, Maryland, Michigan, New Mexico and Utah

26 Other States Social Networking Laws Arkansas, Ark. Code Ann (2013): Comprehensive legislation recently enacted, defines Social media account" to include accounts established with Facebook, Twitter, LinkedIn, MySpace, or Instagram; employer cannot require applicants or employees to add an employee, supervisor, or administrator to the list or contacts associated with a social media account; employer cannot request and change to the privacy settings associated with social media account California, Cal. Lab. Code 980 (2012): Statute prohibits employers from requiring employees or applicant to provide username or password for the purpose of accessing personal social media, access personal social media in the presence of the employer or to divulge any personal social media. However, it offers a broad....

27 Other States Social Networking Laws (California continued)... exception, providing that nothing shall affect an employer's existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding Delaware, Del. Code. Ann. Tit (2012): Only applies to students applying for higher education programs. Another bill restricting employers use of an employee s or applicant s social networking site, profile or account is currently pending in the legislature and if passed will amend Del. Code Ann. Tit

28 Other States Social Networking Laws Illinois, 820 Ill. Comp. Stat. 55/10 (2013): unlawful to require employee or applicant to provide password or other related account information in order to gain access to social media account or profile Maryland, Md. Code Ann., Lab. & Empl (2012): Employer is prohibited from requesting that an employee or applicant to grant access to, allow observation of, or disclose information that allows access or observation of personal internet account Michigan, Mich. Comp. Laws (2012): similar prohibition as New Jersey, but provides an exception for employer to require user name or password for accessing nonpersonal accounts or services that provide access to the employer's internal computer or information systems

29 Other States Social Networking Laws New Mexico, S.B. 371, 2013 Reg. Sess. (N.M. 2013): prohibits employers from requesting or demanding access to employee or prospective employee social networking web site or profile Utah, Utah Code Ann (2013): similar prohibition to New Jersey, defines "Personal Internet account" as not including an account created, maintained, used, or accessed by an employee or applicant for business related communications or for a business purpose of the employer. Permits requesting login information to business related electronic communication devices

30 New Jersey Case Law Ehling v. Mounmouth-Ocean Hospital Service, 872 F. Supp.2d 369 (D.N.J. 2012) Nurse and Union President sued for violation of New Jersey Wiretap Act and Common Law Invasion of Privacy when management accessed her Facebook page using her co-worker s username and password and, printed screenshots of her Facebook posts, and sent the screenshots to the New Jersey Department of Health, Office of Emergency Medical Services, and the New Jersey Board of Nursing New Jersey Wiretapping Law: dismissed. Act only protects electronic communications which are in the course of transmission or are backup to that course of transmission. Court found that this definition does not include a Facebook post The co-worker would likely have a cause of action against management for requesting her username and password

31 New Jersey Case Law Pietrylo v. Hillstone Restaurant Group, 2008 US Dist. LEXIS (D.N.J. 2008); 2009 US Dist. LEXIS (D.N.J. 2009) Restaurant employees created a private group on MySpace to discuss work-related issues in private. Management asked an employee to log in to the private group to access the employee conversations, then terminated two employees based on their comments on the private group Court denied employer s Motion for summary judgment on federal and stated Stored Communications Acts, invasion of privacy, and wrongful termination in violation of public privacy Jury returned verdict in favor of employees on Stored Communications Acts claims, finding that the management had accessed the private chat group (which required an invitation) without authorization The district court denied employer s motion for judgment as a matter of law after the jury issued its verdict Employee would likely have an additional cause of action under the new statute

32 The National Labor Relations Board (NLRB) Administrative Board that enforces the National Labor Relations Act (NLRA) Applies to ALL Employers Not Just Unionized Workplaces The term employer includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof 45 U.S.C. 152(2) The term employee shall include any employee but shall not include.any individual having the status of an independent contractor, or any individual employed as a supervisor 45 U.S.C. 152(3) Employees who believe their employer has violated Section 7 of the NLRA may file an unfair labor practice charge with the NLRB

33 Section 7 Rights Brief Overview Section 7 of the NLRA grants ALL employees the right to self-organization, to form join or assist labor organizations... and to engage in other concerted activities for the purpose of collective bargaining or mutual aid and protection Moreover, employers may not interfere with, restrain, or coerce employees in the exercise of those rights A single employee making a Facebook posting or tweeting (if other employees have access) may constitute protected concerted activity, the restriction of which, may be deemed an unfair labor practice in violation of Section 7

34 The NLRB s Evolving Position of Social Media The world of social media policies changed on May 30, 2012 when the NLRB issued its third report on social media in which it analyzed seven different social media policies and provided its views on the restrictions imposed by those policies Many of the tried-and-true best practices are now called into question The NLRB creates rules and enforces the National Labor Relations Act, but is not a court and does not create laws. The issues discussed by the NLRB in this report are suggestions, but have not yet been challenged in court

35 What can and cannot be included in a social media policy according to the NLRB?

36 Protection of Confidential Information The NLRB agrees that an employer s social media policy can prohibit its employees from disclosing Secret, Confidential or Attorney-Client Privileged Information, as employers have a right to safeguard their confidential proprietary and privileged information On the other hand, this stands in contrast to another provision in the third report which states that a provision prohibiting employees from releasing confidential guest, team member or company information is unlawful because it would reasonably be interpreted as prohibiting employees from disclosing information regarding their own conditions of employment or those of other employees (e.g., wages, etc.) Note: Some companies include employee compensation and other conditions of employment within their definition of Confidential Information

37 NLRB Decision Regarding Confidential Information Policy at issue: Respect all copyright and other intellectual property laws. For [Employer s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer s] own copyrights, trademarks and brands Get permission before reusing others content or images NLRB RULING However, the portion of the rule that requires employees to [g]et permission before reusing others content or images is unlawful, as it would interfere with employees protected right to take and post photos of, for instance, employees on a picket line, or employees working in unsafe conditions

38 The BIG ONE The provision which tends to cause the most headaches and draws lots of attention from the NLRB is the following: Employees may not make statements that are detrimental or disparaging with respect to the Company and/or its employees The guidance suggests that employers are wise to add examples and tie any prohibition to other existing policies that have nothing to do with protected activity

39 Protection of Statements Disparaging Management NLRB on April 24, 2013 ruled on appeal that Bettie Paige Clothing company committed an unfair labor practice for firing employees based on their Facebook statements Tomorrow I m bringing a California workers rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that s going on that s in violation -- Facebook post Board held: The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management s refusal to address the employees concerns, the board's decision said. Such conversations for mutual aid and protection are classic concerted protected activity, even absent prior action

40 Identification of Employer/Disclaimer The NLRB has signed off on the employer practice of requiring employees to include a disclaimer when making postings that are not authorized on behalf of the Company Employees can be restricted from stating that they are speaking on behalf of the company or that they represent the company DON T FORGET!! Federal Trade Commission (FTC) regulations require individuals who endorse a product to identify themselves and their affiliation where their connection could impact the weight and credibility given to the endorsement 15 U.S.C. 45

41 FLSA or State Equivalents Potential Exposure Under Wage and Hour Laws Checking or using remotely, or utilizing social networking on behalf of the company during non-work hours may lead to overtime obligations for non-exempt employees When employers use social media either in hiring or during employment, many states have off duty conduct laws that preclude an employer from taking action against an employee for off duty conduct that is legal (e.g., drinking alcohol, affiliations with groups, etc) An employer who monitors social media may become aware of such conduct and attempt to take employment action against the applicant/employee, but need to be cognizant of these laws

42 Securities and Exchange Commission Concerns SEC Regulation Fair Disclosure (FD) provides that when an issuer, or person acting on its behalf, discloses material nonpublic information to certain enumerated persons, it must make public disclosure of that information intended to ensure that all investors have the ability to gain access to material information at the same time 2008 Guidance to companies concerning use of web sites to disseminate information in compliance with Regulation FD Central focus to this inquiry is whether the company has made investors, the market and media aware of its channels of distribution of material information

43 SEC Case and Report Netflix CEO Reed Hastings posted on his personal Facebook page about the company s streamlining milestone This post was not otherwise made to the public SEC investigated the issue because while Facebook members could have subscribed to Mr. Hastings Facebook page, neither Hastings nor Netflix had previously used his personal Facebook page to announce company metrics Not sanctionable conduct, but resulted in an SEC report issued on April 2, 2013, available here:

44 Creating Effective and Legal Social Media Policies Company s must be ever vigilant to keep pace with social media legislation that impacts the organizational footprint, both federal and state Active and ongoing evaluation of social media by employees, as a hiring tool, and to interact with customers, to gauge Company policy impact, effectiveness and compliance Be sure the policy is fully compliant, but also that it fits with the corporate environment in which your business operates

45 Drafting a Social Media Policy: Possible Considerations/Checklist Define what is covered by the policy Emphasize professionalism Prohibit disclosure of trade secrets, trademark, copyright or other confidential, proprietary non-public information, even if on a secure site, but exclude information related to employees or compensation Refer to current policies on confidential information, harassment, and discrimination, and determine whether policies need to be updated to address new media Prohibit the use of the company s name, logo, trademarks or slogans for commercial purposes Prohibit employees from making comments about vendors, clients and competitors

46 Drafting a Social Medial Policy: Possible Considerations/Checklist Consider whether you want to block or limit employee access to social media sites, prohibit social media use on company time, or provide for reasonable use Prohibit blogging, using company equipment and company electronic systems Clearly indicate that the equipment and electronic systems are the property of the company, that there is no such right of privacy with respect to any electronic communication sent using company systems, and that the company may monitor electronic communications at any time for any reason

47 Drafting a Social Medial Policy: Possible Considerations/Checklist Clearly indicate that violation of the policy may subject the employee to immediate disciplinary action, including termination Warn employees that they may be held legally responsible for the content of online communications, including a blog, if it violates the law, i.e., trade secret or copyright laws Prohibit recommendations or referrals on social media sites Enforce the policy consistently

48 Some Don ts... (according to the NLRB) Don t prohibit employees from identifying themselves as employees of your company or organization THIS IS A NEW ONE you cannot have a blanket prohibition on employees regarding the use of company trademarks or logos. Employees are permitted to use trademarks and logos in signage when they are striking or complaining about an employer s practices (i.e., non-commercially) Don t prohibit employees from talking about legal matters (non-privileged) Discouraging employees from friending co-workers

49 What Can You Do? Apparently, it is usually acceptable to tell employees to be respectful and honest and accurate You can advise employees to respect copyright or intellectual property laws You can tell employees to use their best judgment and exercise personal responsibility Employers can prohibit employees from posting on the internet in the name of their employers without authorization

50 Employer Block Of Websites Currently, no laws prevent employers from blocking access to certain websites via a company internet connection Writing a policy that prevents employees from accessing social networking sites may be considered preventing concerted activity and an unfair labor practice

51 Sample Social Media Policies

52 Portion of Walmart s Social Media Policy If you are a Walmart associate, please follow these additional guidelines: Remember that we have a dedicated FB team tasked with responding to customer inquiries or criticism. Our Official Walmart Facebook team is responsible for engaging customers through our page. To avoid confusion, we ask that you not attempt to respond to customer inquiries or comments directed specifically to the Company or asking for an official Company response on this site Consider using company established channels for job-specific issues. While we encourage associates to join our Facebook community and participate in conversations with our customers and other users, we encourage you to direct your complaints or concerns about your job or working environment to your store management team using the established Open Door Process or MyWalmart.com For Walmart managers: If you are a manager, please make sure you are familiar with our Social Media Management Guidelines, available on the Walmart Wire

53 Portion of adidas Social Media Policy First, please familiarize yourself with and follow the adidas Group Code of Conduct and the Global Policy Manuals. When you discuss adidas Group- or brand-related matters on the internet, you must identify yourself with your name and, when relevant, your role at the adidas Group. Only very few people in this company are official spokesperson for the Group or its brands, so if you are not one of them you must make clear that you are speaking for yourself and not for the Group. You can use a disclaimer like "The postings on this site are my own and do not necessarily represent the position, strategy or opinions of the adidas Group and its brands". Please always write in the first person and don't use your company address for private communications. And please consider that even anonymous postings on Wikipedia can be traced back to the company SOURCE:

54 Portion of Astonish Results Social Media Policy Employer Monitoring Employees are cautioned that they should have no expectation of privacy while using the Internet. Your postings can be reviewed by anyone, including AGENCY AGENCY reserves the right to monitor comments or discussions about AGENCY, its employees and clients and the industry, including products and competitors, posted by anyone. AGENCY reserves the right to use content management tools to monitor, review or block content on sites that violate AGENCY rules and guidelines Reporting Violations AGENCY requests and strongly urges employees to report any violations or possible or perceived violations to their manager or Human Resources Discipline for Violations AGENCY investigates and responds to all reports of violations of the social media rules and guidelines and other related policies. Violation of this policy will result in disciplinary action up to and including immediate termination. AGENCY reserves the right to take legal action where necessary against employees who engage in prohibited or unlawful conduct

55 For More Publicly Available Company Social Media Policies Note: Each company has its own issues and workforce demographics that could affect the terms and conditions of a social media policy

56 THANK YOU Rebecca Brazzano Thompson Hine LLP T: E: Joëlle E. Quilla Cognizant Technology Solutions T: E: