Social Networking: Issues in Employment Law

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1 Social Networking: Issues in Employment Law

2 What is Social Media? Web-based technologies that enable people to interact with each other Journalist Broadcaster Expert

3 Users become content producers, or media networks

4 In 2009: 350 million people on Facebook 133 million blogs worldwide 27 million tweets each day 1.2 billion YouTube views every 24 hours Unfriend was the Oxford Dictionary s word of the year

5 Potential areas of legal risk associated with the use of social media Traditional laws usually apply to online content, but there are special considerations: DMCA CDA privacy FTC/advertising antitrust securities employment (libel, hiring, termination, productivity, security)

6 Social Media Issues in the Workplace: Entity Use Defamation Harm to reputation of another by false statements to a third party comments made by employees can be attributed to the employer, e.g. Cisco Systems CDA 30 Disclaimers and TOU Take-down policy No comments on third party posts

7 Social Media Issues in the Workplace: Entity Use Avoid TM Misuse seek permission to use marks commercial use can create liability avoid use of other s trademarks in domain names, user names, search terms Copyright Ownership Who owns work on social media? Work-made-for-hire doctrine, written assignment of rights Licenses: express, click-wrap, implied

8 Entity Use of Social Media: Advertising New FTC Endorsement Rules revisions to Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255 net impression approach to determine whether an ad is deceptive personal recommendation? compensation? consumers expectations?

9 FTC (cont.) new media truthfulness material connections covers messages that consumers are likely to believe reflect the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser duty to disclose relationship to employer, even if not on the employer s site atypical results no longer sufficient to say results not typical; rather, must disclaim by discussion or disclaimer of the typical results that a consumer can expect if employees are talking about company s services or products, presumption that company supports and benefits, leading to liability for false statements made by employees online comprehensive social media policy and employee training on online social media usage is critical

10 Employee Use of Social Media Platforms Use is inevitable, so embrace it Develop social media policy Risks: employee s expectation of privacy hiring OK to verify information, not OK to discriminate respondeat superior/vicarious liability OK to look for harassing content termination regulation of social media/stored Communications Act (Konop v. Hawaiian Airlines; Pietrylo v. Hillstone Restaurant Group)

11 Employee Use of Social Media Platforms Hiring/Background screen review sns in a systematic manner privacy use of information unnecessary to hiring process could lead to discrimination claim

12 Social Media Policy tell employees they are not permitted to discuss work-related issues counsel employees on appropriate content, using good judgment and consulting a manager if content is questionable designate a gatekeeper to review posts on the employer s web site or blog exit interview

13 Employee Policy Manual update regularly explain what is acceptable and not acceptable ramifications for misuse (probation, termination) use blockers and filters to control access

14 Examples of Social Media Policy Provisions Internet Postings: Define social media communications in common parlance This Internet Postings Policy applies to employees who communicate on multi-media and social networking websites such as MySpace, Facebook, Yahoo! Groups, YouTube, blogs, and wikis. Prohibited Content of Internet Postings Do not disclose any information that is confidential or proprietary to the company of to any third party that has disclosed information to the company. If you comment on the company or it s business or policies, you must identify yourself as a company employee and include a statement that the views expressed on this post are mine and do not necessarily reflect the views of the company. Do not circulate or attach postings that are not your own as these may violate the rights of others. Do not include the company logos or trademarks or the logos, trademarks, artwork, or content of third parties. Your Internet Postings shall not violate any company policy, including the Employee Manual, and Computer Use Policy, etc. You are legally responsible for your postings, so use common sense about the content of your Internet Postings.

15 Examples of Social Media Policy Provisions Company Rights The company reserves the right to limit the subject matter from Internet Postings on its site and to remove any posted comment. The company may modify, suspend or withdraw this Internet Postings Policy, and you are responsible to Ramifications of violation of policy Violation of this policy may result in disciplinary action including probation and termination. You agree that the company shall not be liable under any circumstances for any mistakes, omissions, loss or damages claimed or incurred in connection with any of your Internet Postings.

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