Social Media and the Workplace: What Every Employer Should Know

Transcription

1 Place image here in this top corner Size: 2.58 x 2.58 Position: horizontal 0, vertical 0 Presented by: Renee M. Jackson, Labor and Employment Joshua M. Henderson, Labor and Employment Jonathan M. Redgrave, Information Law Social Media and the Workplace: What Every Employer Should Know January 27, 2010 This document is intended as an information source for the clients and friends of Nixon Peabody LLP. The content should not be construed as legal advice, and readers should not act upon information in this publication without professional counsel. Copyright 2010 Nixon Peabody LLP. All rights reserved.

2 About Nixon Peabody Nixon Peabody LLP is an international law firm providing practical solutions for today s real world business challenges. With more than 800 attorneys in 17 office locations, including Boston, Chicago, London, Los Angeles, New York City, Paris, Rochester, San Francisco, Shanghai, Silicon Valley, and Washington, D.C., the firm is one of the largest in the United States and has been recognized by American Lawyer Media as a Global 100 firm. San Francisco Chicago Rochester Buffalo Albany Manchester Boston New York Providence Long Island Nationally recognized employer FORTUNE magazine named Nixon Peabody as one of the 100 Best Companies to Work For in 2006, 2007, and Palo Alto Los Angeles Washington, DC Palm Beach Gardens London Paris Shanghai 2

3 Our Speakers Renee Jackson, Labor and Employment Renee Jackson represents employers in all areas of labor and employment law, focusing primarily on employment counseling and litigation. She defends employers against allegations of discrimination and harassment in both state and federal courts, and at agencies such as the Massachusetts Commission Against Discrimination and the EEOC. She also counsels both domestic and international employers on the various employment law issues they face in the United States, including restrictive covenants, wage and hour issues, workplace policies, discrimination, reductions in force, employee discipline, all aspects of hiring, and the use of social media in the workplace. Renee also has experience with traditional labor relations, employee benefits, and general civil litigation. Joshua Henderson, Labor and Employment Joshua Henderson represents employers in state and federal courts in all areas of labor and employment law, including discrimination, wrongful termination, wage hour class actions, whistleblower, and sexual harassment, and in hearings before administrative agencies involving OSHA and labor management issues. He also advises employers with respect to employment policies and contracts, employee handbooks, union organizing campaigns and collective bargaining, and investigations of alleged employee misconduct. In January 2009, he received, on behalf of Nixon Peabody, the U.S. Department of Labor s Certificate of Appreciation for excellence in promoting workplace flexibility. Jonathan Redgrave, Information Law Jonathan Redgrave focuses his practice on Information Law matters and leads the firm s initiative in this area. He regularly addresses issues involved in the discovery of electronically stored information, as well as issues concerning records retention and privacy policies and practices for clients. Jonathan is internationally recognized for his work in this area, and has spoken around the world on these issues. Notably, he helped found, was the first Chair of, and is currently Chair Emeritus of the highly successful Sedona Conference Working Group on Electronic Document Retention and Production. He is also a co chair of the acclaimed Georgetown University Law School CLE Advanced E Discovery Institute and serves on the National Archives Advisory Committee on the Electronic Records Archive. 3

4 Introduction

5 What Are Social Media? Internet based media created through social interaction, where individuals primarily produce (rather than consume) the content. Social networking websites: communities for social interaction Facebook: connect with family and friends MySpace: connect with family and friends, share music LinkedIn: build professional networks Blogs: journals or commentaries with public comment feature Twitter is considered a micro blog Virtual worlds: communities where individuals interact via avatars Second Life: interact through a virtual economy World of Warcraft: interact through virtual gaming Video sharing websites: communities where users upload videos You Tube: upload, view, and comment on videos 5

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7 Relevant Statistics (2009) Deloitte LLP 2009 Ethics and Workplace Survey: Social networking and reputational risk in the workplace National probability telephone survey of 2,008 employed adults, 18 years or older, living in private households in the US: 74% believe it is easy to damage brand reputation via social media 61% won t change what they do online, even if employer is monitoring 53% believe social networking pages are none of employer s business Online survey (invitation only) of 500 business executives: 60% think they have right to know how employees portray themselves online 7

8 Relevant Statistics (2009) Russell Herder and Ethos Business Law: Social Media: Embracing the Opportunities, Averting the Risks Online survey of 438 randomly selected management, marketing, and HR executives from US companies: 36% use social media to see what current employees are sharing online 25% use social media to check background of prospective employees 40% block employee access to social media 26% encourage employees to use social media for business purposes 69% indicated that their company does not have a written social media policy 8

9 Major Issues For Consideration Pre Employment: Search for applicant information in social media? During Employment: Allow/encourage employees to use social media? Address use with social media policy? Post Employment: Recommend a former employee using social media? Document retention, discovery, and litigation: How are social media dealt with in these areas? 9

10 Pre-Employment

11 Pre-Employment: Applicant Screening Opportunities: Access more information typically not available in traditional hiring process New Facebook privacy settings made name, profile picture, current city, gender, networks, friends, Pages, and some photos public Make hiring decision based on lawful information found: illegal drug use poor work ethic poor writing/communications skills negative feelings about previous employers racist or discriminatory tendencies 11

12 Pre-Employment: Applicant Screening Risks: Lawsuit for unlawful use (in a hiring decision) of information obtained about applicant's protected class status Evidence of search may be revealed in later discovery Cannot unring the bell difficult to prove non use of information Lawsuit under state privacy laws prohibiting employment decisions based on applicant s lawful, off duty activities 12

13 Pre-Employment: Applicant Screening Creating a policy: Screen applicants in a uniform manner Create list of social media sites that will be searched for each applicant Create list of lawful information about applicants desired from every search Screen all applicants (or a non discriminatory subset) using that lawful criteria Have non decisionmaker conduct search, filtering out protected class information Don t friend applicants to gain access to non public social networking profiles Hiring decision must be supported by: legitimate, non discriminatory reason(s) and documentation Consult with employment counsel before making an employment decision 13

14 During Employment

15 During Employment: Employee (Mis)use Opportunities: More collegial atmosphere Shared experiences and stronger working relationships Listen to employees, customers, and competitors Respond to legitimate criticisms Business development 15

16 During Employment: Employee (Mis)use Internal Risks: Awkward and potentially harassing situations Supervisor/subordinate awkwardness Co worker or supervisor sexual harassment Cyber stalking Hostile work environment Potential liability for defamation of co workers/supervisors Time spent using social media during working hours may cause efficiency/productivity to decrease Associated Chambers of Commerce and Industry (India), survey of 4,000 employees: Average employee spends 1 hour per day at work on social media sites 16

17 During Employment: Employee (Mis)use External Risks: Unauthorized disclosure of company information (confidential, proprietary, and/or trade secret), especially anonymously Corporate embarrassment, public relations issues Brand destruction/erosion Unauthorized disclosure regarding mass layoffs, settlement agreements, severance packages, etc. Potential liability for trade libel: factual misrepresentations made by employees about a competitor Potential liability for violation of federal securities laws (fraud): employee blogs/posts which contain material misrepresentations about the company Violation of FTC endorsement guides 17

18 During Employment: Employee (Mis)use Federal Trade Commission Endorsement Guides New Guides addressing FTC s concerns about deceptive practices through consumer generated media and endorsements became effective December 1, 2009 Professional bloggers are the target Any material connection between endorser and seller of product or service must be fully disclosed Material connection includes employment relationship b/w endorser and seller Substance and frequency of disclosures not specified Employee/endorser and employer face potential fines of $11,000 per violation Example: Employee gives favorable review of employer s product on employee s blog, Facebook page, or Twitter account. Employee is considered an endorser and must disclose relationship. Anonymous employee postings blog comments, Yelp reviews pose problems 18

19 During Employment: Employee (Mis)use Washington Wizards/Gilbert Arenas: indefinitely suspended after joking on Twitter about bringing guns into the Wizards locker room Kansas City Chiefs/Larry Johnson: released after using Twitter to insult fans, head coach, and gay people Virgin Atlantic: terminated 13 cabin crew members who posted disparaging comments about airline and customers on Facebook Domino s Pizza: terminated employee who posted video of himself on YouTube making sandwiches while violating health code standards Kentucky Fried Chicken: terminated 3 employees who turned restaurant sink into personal hot tub and posted photos on MySpace Delta Airlines: terminated flight attendant for posting inappropriate pictures of herself in uniform and inside plane on anonymous personal blog 19

20 During Employment: Creating A Policy Address employee use of social media for personal and business purposes Inform employees that misuse of social media can be grounds for discipline, up to and including termination Prohibit disclosure of the employer s confidential, trade secret, or proprietary information Prohibit posting false information about the company or its employees, customers, or affiliates Request that employees: keep company logos/trademarks off personal social media, unless for business purposes not mention company in posts/comments, unless for business purposes not post/blog during business hours, unless for business purposes bring work related complaints to HR before blogging/posting about it 20

21 During Employment: Creating A Policy List name of someone within organization to contact with questions about social media use or policy Instruct employees to use good judgment and take personal and professional responsibility for content Prohibit use of company e mail address to register for social media Describe type of disclosure employees must include when they blog or otherwise speak about the employer on line Example: I am an employee of [ABC company]. I am not a company spokesperson. This [blog/comment/posting/tweet] is my opinion only. Employers who become aware of employee blogging should remind employee of FTC endorsement rules, and monitor as necessary/appropriate 21

22 During Employment: Creating A Policy Train all supervisors and HR professionals on policy Instruct supervisors to not friend subordinates, and vice versa Instruct employees to keep their profile private to work related contacts or to create appropriate filters for work related contacts Use broad language and update frequently At a minimum, insert language encompassing social media into current IT, code of conduct, harassment, and confidentiality policies Monitor/enforce in uniform and non discriminatory manner, BUT: Unlawful surveillance of protected, concerted activity (NLRA) Privacy claims Pietrylo v. Hillstone Restaurant Group dba Houston's (D.N.J. 2006) Konop v. Hawaiian Airlines, Inc. (9 th Cir. 2002) 22

23 Post-Employment

24 Post-Employment: References Supervisor/co worker asked to recommend former employee on LinkedIn Positive recommendation on LinkedIn could conflict with company position regarding performance Positive recommendation on LinkedIn could harm employer in employment discrimination litigation Should be treated the same as an employment reference Post employment reference policy should either: Specifically address appropriate info for social media reference, or Prohibit social media references unless authorized by HR 24

25 Post-Employment: Miscellaneous Separation and settlement agreements: confidentiality non disparagement references Agency issues: On or before your separation date, you agree to remove from your personal social media any designation or indication that you are a current employee of the Company. Continuing harassment of current employees 25

26 Records Management and Discovery

27 Records Management and Legal Discovery What? I may need to keep this stuff? Understand what/how to manage information and best record defensible and good practices How do we use it for business? Who uses it? Where is the information stored? How does the information fit into the existing records policy and schedule? Think about both internal and external issues and content Understand how to audit and monitor enforcement of records management policies 27

28 Records Management and Legal Discovery Legal Discovery all ESI is in play Courts expect that companies be able to identify, locate, collect and preserve relevant ESI Zubulake line of cases (S.D.N.Y.) Montreal Pension Plan (S.D.N.Y. 2010) Consider discovery plan if you use social media in business How do you locate? How you capture, preserve, and produce? Don t forget discovery against your opponents Don t forget discovery from non parties 28

29 Conclusion Emerging workplace issues with little case law Rapidly changing media Understand the issues Don t ignore the risks Be cautious Craft appropriate policies and procedures Apply and enforce policies in consistent and non discriminatory way 29

30 What Can We Do For You?

31 What Can We Do For You? Identify potential issues and vulnerabilities Review and revise existing policies, agreements, and forms Provide sample policies, agreements, and forms Provide training of HR staff, supervisors, employees Counsel as issues arise, explaining applicable laws Assist in decision making (hiring, discipline, termination, etc.) and drafting supporting documentation Provide full range of litigation services 31

32 Contact Information

33 Thank You! Questions? Renee Jackson Labor and Employment 100 Summer Street Boston, MA Phone: Joshua M. Henderson Labor and Employment One Embarcadero Center, Suite 1800 San Francisco, CA Phone: Jonathan M. Redgrave Information Law 401 Ninth Street NW, Suite 900 Washington, DC Phone:

34 This presentation contains images used under license from Jupiterimages.com. These images may not be re-distributed or re-used for other purposes. This presentation may be considered advertising under certain rules of professional conduct. The content should not be construed as legal advice, and readers should not act upon information in this publication without professional counsel. Copyright 2010 Nixon Peabody LLP. All rights reserved.