Social Media Policy Dos and Don ts: Employees, Networking Sites and the Law

Transcription

1 Social Media Policy Dos and Don ts: Employees, Networking Sites and the Law FEATURED FACULTY: Amy Melican, Labor & Employment Law Department, Proskauer Nausheen Rokerya, Labor & Employment Law Department, Proskauer

2 Speaker Info Amy Melican, Labor & Employment Law Department, Proskauer Amy F. Melican is an Associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Employment Law Counseling & Training Groups. Amy s practice concentrates on employment litigation in state and federal courts and before administrative agencies and arbitration panels. In addition to litigation, she conducts internal investigations and trainings for clients. Amy regularly counsels clients, providing advice to employers on issues involving personnel policies, hiring, terminations, discipline, disability accommodations, leaves of absences and wage and hour laws. Before joining Proskauer, Amy was an Assistant Corporation Counsel for the City of New York. She has served as an adjunct professor at Cardozo Law School. Nausheen Rokerya, Labor & Employment Law Department, Proskauer Nausheen Rokerya is an Associate in the Labor & Employment Law Department and a member of the Class/Collective Action Group, as well as the Employment Law Counseling & Training Group. Her litigation experience includes singleplaintiff discrimination and retaliation lawsuits, as well as complex collective actions. Nausheen represents employers in a wide variety of employment-related disputes, including discrimination, harassment, and retaliation lawsuits brought in state and federal courts and administrative charges filed with the U.S. Equal Employment Opportunity Commission and analogous state agencies. In addition, she counsels employers in classification audits under federal and state wagehour laws, and represents employers in the defense of actions alleging misclassification and overtime, regular rate, and record-keeping violations. In 2008, Nausheen won the award for Best Brief at the Wechsler School of Law's First Amendment Moot Court Competition, and advanced to the semi-finals as one of the competition's top oralists. In 2009, her student note on U.S. caffeine regulation was selected for publication in The Brooklyn Law Review. In 2010, she was invited to join The Order of Barristers, a national honorary organization that encourages oral advocacy and brief writing skills through effective law school oral advocacy programs. Nausheen is a member of the Proskauer Newark Diversity Committee.

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4 Social Media Policy Dos and Don ts: Employees, Networking Sites and the Law Amy Melican Proskauer Rose LLP Nausheen Rokerya Proskauer Rose LLP 1 Overview Social Media Issues at Work Policies - /Internet Monitoring - Social Media/Internet Activity - Company-Owned Property - Social Media as a Recruiting Tool Best Practices for Implementing Social Media Policies 2 1

5 Social Media Benefits vs. Risks Benefits - Cost Effective Marketing - Efficient Recruiting Tool Risks - On-Line Identity Management - Decreased Productivity - Dissemination of Confidential Information (trade secret, proprietary information, securities law violations) - Damage to Company Property (viruses, clogging system) 3 Proliferation of Social Media Technologies Social Networking Sites - Facebook, MySpace Business Networking Sites - LinkedIn, Plaxo Online media - YouTube Blogs - PerezHilton, Gizmodo Social News Sites - Digg, Mixx Twitter 4 2

6 Did You Know? 22% of employees visit social networking sites 5 or more times per week; 23% visit social networking sites 1-4 times per week - Source: Deloitte Survey, available at, (July 2009) 85.6% of employees use office for personal reasons - Source: Survey by NFO Worldwide (May 2007) 27% of employees surveyed said they don t consider the ethical consequences of posting comments, photos, or videos online - Source: Deloitte Survey, available at, (July 2009) 64% of employees have received politically incorrect or offensive s at work - Source: Business Week 5 Did You Know? (cont d.) 38% of companies said they employ staff to read or otherwise analyze the content of outgoing - Source: Ponemon Institute (2009) One out of 4 HR professionals said their organization uses networking sites to look up candidates before inviting them for an interview - Source: SHRM Poll, available at, (2009). Over 85% of employers said they would be at least somewhat less likely to hire a candidate if the candidate s social networking profile or tweets showed evidence of unprofessional behavior - Source: SHRM: Interviewing Dos and Don ts for Job Seekers (November 2009) 34% of respondents said their businesses had been affected by the exposure of sensitive or embarrassing information via the internet - Source: Ponemon Institute (2009) 6 3

7 Considerations When Deciding Which Social Media Policies to Implement Gather and Review the Company s Current Policies Consider Company s Needs - Nature of Business/Industry - Employee Access to Social Media During and After Work - Breadth of Limitations Desired - Reality of Usage Ensure Consistent Process for Monitoring and Enforcement 7 /Internet Monitoring Policies: Overview Reasons for /Internet Monitoring Policies - Prevent loss of intellectual property - Maintain productivity and dissuade personal use - Reduce clogging of company networks - Prevent and discourage sexual or other workplace harassment - Maintain the company s professional reputation and image Overcoming an Employee s Reasonable Expectation of Privacy - Password protection by employee - Placing items in personal folder 8 4

8 /Internet Monitoring Policies: Overview (cont d) Employers can implement policies that prohibit or limit personal use of company computers, monitor employees' computer use and to discipline i employees whose use violate company policy. Courts have found limits - Employee found to have a reasonable expectation of privacy in communications with her attorney conducted through a personal, passwordprotected, web-based account accessed on her company-owned laptop. See Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010) - Employer installed monitoring software without notifying the employee. - Employer s policy found to be ambiguous on the subject of personal use. 9 /Internet Monitoring Policies: Policy Elements Clearly inform employees: - That they have no privacy rights when using company computers, and internet networks. - Employer has right to monitor, intercept, record and review all communications sent over company s /internet system. - and internet systems are the company s property. - and internet searches may not actually be deleted. - Violations of policy may result in disciplinary action up to and including termination. 10 5

9 Monitoring Policies: Policy Elements (cont d) The [or Communication] system is the property of Company. All communications and information transmitted by, received from, or stored in this system are company records and property of Company. Employees have no right of personal privacy in any matter stored in, created, received, or sent over the Company [or Communication] system. Company, in its discretion as owner of the [or Communication] system, reserves and may exercise the right to monitor, access, retrieve, and delete any matter stored in, created, received, or sent over the [or Communication] system, for any reason and without the permission of any employee, and without notice. Use of passwords or other security measures does not in any way diminish Company s right to access materials on its system, or create any privacy right by an employee in the messages and files on the system. Employees should be aware that deletion of any [and/or Voice mail] messages or files may not truly eliminate the messages from the system. 11 Monitoring Policies: Additional Considerations Be sure to review all applicable laws and rules that may be implicated by your company s operations/policy. - If your company operates internationally, verify that you are in compliance with privacy requirements overseas, as they may be more stringent. - Federal courts are split on the protections provided by the Electronic Communications Privacy Act prohibits an employer s search for s already on their internal systems. An employer that monitors and/or internet use may have an affirmative obligation to monitor for and curtail illegal online conduct. 12 6

10 Social Media/Internet Activity: Developing Area of the Law While social media and internet law continues to develop, recent decisions have illustrated tension between competing concerns. - Legal prohibitions against discrimination and harassment/hostile work environment - Potential for vicarious liability for defamation and copyright infringement by employees - Legitimate business interest in preserving company s reputation vs. - Employee privacy rights - Protection of employees Section 7 rights under the National Labor Relations Act - Off duty conduct statutes 13 Social Media/Internet Activity: Potential Liability for Employee Comments Employers may face liability for discrimination and/or harassment occurring as a result of employee postings on social media sites - Complaint alleged that employer created a racially hostile work environment by allowing white police officers to operate a racist web site while on- and off-duty. Guardian Civic League v. Philadelphia Police Dept., No. 09 Civ (E.D. Pa. filed July 15, 2009) - Pilot filed a hostile-work-environment claim against her employer based upon comments posted by her co-workers on a pilots' electronic bulletin board operated by a third-party service provider. Court found the bulletin board amounted to a workplace related setting. Blakely v. Continental Airlines, Civ. No (WGB), 1997 U.S. Dist. LEXIS (D.N.J. March 24, 1997) 14 7

11 Social Media/Internet Activity Policies: Potential Liability for Employee Comments Employers may face liability for defamation as a result of employee postings on social media sites - Employer may be liable if the employee had apparent authority from the company to speak on its behalf (e.g., under theories of ratification, respondeat superior, negligent supervision/retention) 15 Social Media/Internet Activity Policies: Limiting Potential Liability for Harassment & Discrimination Ensure that company s non-discrimination and anti-harassment policies are broad enough to cover social media postings that may be found to be work-related -... Employer s equal employment opportunity policy and its policies against sexual or other harassment apply fully to the use of the Internet, including blogging or posting of comments. Promptly and thoroughly investigate alleged violations of the company s non-discrimination and anti-harassment policies and take disciplinary action where appropriate. 16 8

12 Social Networking as Protected Activity Anti-Retaliation provision of federal and state statutes may protect employees who complain on blogs - Title VII s opposition clause protects informal protests of discriminatory employment practices - The Sarbanes-Oxley Act of 2002 protects an employee of a publicly traded company who reports employer conduct that the employee believes violates federal securities law 17 Social Networking as Protected Activity Under the NLRA The National Labor Relations Act ( NLRA ) - Protects concerted activities for the purpose of collective bargaining or other mutual aid or protection.... (Section 7); - Employers cannot interfere with, restrain or coerce employees in the exercise of the rights guaranteed in [S]ection 7 (Section 8(a)(1)) Note: Union or union-related activity is not required. These protections apply whether or not the employee is represented by a union. 18 9

13 Social Networking as Protected Activity Under the NLRA (cont d) For an employee s activity (including negative comments) to be protected, it must be concerted. Conduct that may appear to be individual action can, in fact, be concerted activity if the goal is to enlist the support of other employees and encourage them to engage in group action. It is generally unlawful to discipline employees for making negative comments about working conditions, including comments about supervisors. It is a violation of the NLRA to issue and maintain general policies that broadly restrict such discussions. 19 Social Networking as Protected Activity Under the NLRA (cont d) General policies that prohibit employees from engaging in negative conversations about management have been found to discourage or chill employees from engaging in protected activity. BUT, an individual s statements can lose protection if they go too far. - The NLRB has found that insulting, obscene personal attacks against supervisor are not protected concerted activity. Caterpillar Tractor Co., 276 NLRB 1323, 1326 (1985). - There is a very thin line between statements that will be considered protected and language age that is so profane and uncalled for that the speaker loses the protection of the Act. Tampa Tribune, 2007 NLRB LEXIS 527, **

14 Social Networking as Protected Activity Under the NLRA Current Legal Landscape Recently, the Board has filed several Unfair Labor Practice charges alleging social media policies impinge on employee rights. - In re American Medical Response of Connecticut, Inc.: NLRB required employer to revise its overly-broad rules to ensure employees are not improperly restricted in discussions regarding wages, hours, and other terms and conditions of employment. - Thomson Reuters: In April 2011, the NLRB s Manhattan Regional Director confirmed that it intends to file against the company for allegedly reprimanding an employee who had criticized management on Twitter. - Hispanics i United of Buffalo, Inc.: Complaint filed in May 2011 concerning termination of 5 non-union employees who used Facebook to complain about working conditions. Employer discharged the participants, claiming that their comments constituted harassment of an employee mentioned in the posting. 21 Social Networking as Protected Activity Under the NLRA Current Legal Landscape Board has applied the same test it has used when looking at the legality of other work rules. - Does the rule directly interfere with or restrain protected activity? - If not: - Was the rule enforced to interfere with or restrain protected activity? - Was the rule issued in response to protected activity? - Can the rule be reasonably read to interfere with or restrain protected activity? In connection with its analysis, the Board has considered: - Text of the rule/policy - Context - Past enforcement - Reasons rule/policy was adopted - Examples included in handbook or policy 22 11

15 Social Media Policies: Off-Duty Conduct Statutes May Provide Additional Protections State Specific: - California: Protects employees who engage in lawful conduct during non-working hours, away from employer s premises. (Cal. Lab Code 96(k), 98.6). - New York: Protects employees who, under certain circumstances, engage in political activities, legally use consumable products, and/or participate in recreational activities, outside of work hours. (N.Y. Lab. Law 201(d)(2)). But - New York: Employer may discharge an employee whose conduct creates a material conflict of interest related to trade secrets, proprietary information, or business interests. (N.Y. Lab. Law 201(d)(3)). 23 Social Media Policies: Best Practices When Drafting Policy Ensure that your policy s tone focuses on using good judgment and common sense. Consider prohibiting the use of social media during the workday and/or through company equipment. - Blogging not permitted on work time. All blogging and other Internet activity during work hours and/or using Employer equipment or connections is subject to the Employer s Internet and Computer Use Policies. Unless specifically authorized by a Employer official, blogging and other public Internet communications are not permitted during an employee s working time. Define social media broadly to include websites, like Facebook and Twitter, as well as blogging activity, texting, posting comments/videos, etc

16 Social Media/Internet Use Policy: Best Practices When Drafting Policy (cont d.) Include prefatory language indicating the policy s purpose. - [t]he intent t of this policy is not to restrict t the flow of useful and appropriate information, but to minimize the risk to the Company and its associates. NLRB Advice Memoranda: Sears Holdings (Roebucks), 12/10, No. 18-CA Establish requirements with respect to non-working time postings that do not interfere with employee protected activity. Inform employees they may be disciplined for social media commentary indicating an intent to engage in conduct that may compromise workplace safety or violate law. Instruct employees to always identify themselves and be honest in their posts about who they are and what they do. Prohibit the use of the company s logo or slogans. 25 Social Media/Internet Use Policy: Best Practices When Drafting Policy (cont d.) Clearly identify the information that the company considers confidential company information and inform employees that such information should not be disseminated. - Posting of certain protected information prohibited. Employees may not disclose trade secrets, confidential business or member information (e.g., business plans, strategies, customer information, etc.) or other proprietary information belonging to Employer to individuals outside Employer, including through blogs and other Internet postings. In addition, employees must not disclose certain Employer financial information in violation of securities laws or regulations

17 Social Media/Internet Use Policy: Best Practices When Drafting Policy (cont d.) Do NOT include a blanket prohibition on critical comments. - NLRB has found the following policy provisions to be too broad: - making disparaging, discriminatory or defamatory comments when discussing the Company or the employer s superiors, co-workers and/or competitors - depicting the company in any way over the internet without company permission Remember - Protected activity may include comments disparaging, criticizing, or critiquing an employer and/or supervisors if there is a nexus between the remarks and employee interests or working conditions, and the comments are not egregious in nature 27 Social Media/Internet Use Policy: Best Practices When Drafting Policy (cont d.) Let employees know they may be disciplined for social media commentary indicating an intention to engage in conduct that may compromise workplace safety or violate law. - See NLRB Advice Memoranda: U.S. NLRB, 5/5/2010, No. 22-CA et al. Employees should be aware that they may be disciplined for online conduct amounting to copyright infringement Posting of certain protected information prohibited Employees wishing to post blogs or other public Internet communications should be aware that copyright and trademark law may restrict the use and copying of material belonging to Employer and others. Employees may not violate the intellectual property or privacy rights of others Employees should be advised to use a disclaimer clearly stating that any comments posted are attributable to the employee Disclaimer required. Any reference to Employer or an employee of Employer publicly posted on the Internet must contain a disclaimer indicating that the thoughts and opinions expressed belong to the author and do not necessarily reflect those of Employer. Notify employees that prohibited conduct may trigger disciplinary consequences up to and including termination. Consistently enforce all policies, being sure to document any disciplinary action

18 Internet Use Policy: Sample Policy Language If you abuse your right to use the Internet you may be subject to disciplinary action, including possible termination, and civil and criminal liability. - Use Limited to Business Purposes- Use of the Internet has been provided for, and should be limited to, Company purposes. Use of the Internet through the Company s or personal computer systems for personal purposes is prohibited. Employees may not engage in random Internet use ( surfing the net, playing games, shopping, blogging or accessing or downloading entertainment software) during work time. - No Expectation of Privacy- Employees have no reasonable expectation of personal privacy with respect to Internet use through the Company s computer systems. The Company may monitor or review any and all aspects of its computer systems and all files, documents or other information contained or accessible through the computer systems for any reason and without the permission of any employee. - Other guidelines- Employees are reminded that they are personally responsible for material they post on a blog or website. In addition, employees wishing to maintain blogs or websites should be aware that they could be held responsible for content t posted by third parties, such as comments. Employees are encouraged to monitor and/or restrict such third party content on any websites or blogs they maintain. 29 Policy Coverage: Company-Owned Property Why have a policy that covers company-owned property? - The lines between home and work are blurred. - Company may be liable for unlawful activities conducted via property it owns, even if conducted outside of business hours. - Sexual harassment via text messages - Reserving the right of inspection of such property will enable a search

19 Ensuring Coverage of Company-Owned Property Policy Elements Clearly indicate that the equipment and electronic systems are the property of the company and there is no right of privacy with respect to any electronic communication sent using company systems. When dealing with company-owned laptops, consider conditioning access on acknowledgment of policy at start up screen. When conducting a review of data on company-owned property make sure: - There is a legitimate work-related purpose behind the search - The search is not excessive in scope 31 Social Media as a Hiring Tool Searching social media in connection with hiring is not prohibited However, there are several reasons employers should limit searches and/or adopt internal guidelines before using social media in connection with hiring 32 16

20 Social Media as a Hiring Tool: Potential Pitfalls Inconsistency in checking sites for applicants (i.e., checking for some applicants but not others) may leave employers vulnerable to claims of disparate treatment. Search may reveal information that employer would never request: - Race, sex, ethnicity or national origin - Religion, spiritual beliefs or lack thereof - Birth date or years of graduation, allowing estimation of age - Marital/parental status - Sexual orientation or gender identity - Medical information - Recreational activities, political leanings, etc 33 Social Media as a Hiring Tool: Potential Pitfalls (cont d) Questions about accuracy (outdated, intentionally inaccurate) Difficulty confirming that information relates to applicant Inability to legally consider the information - Discrimination claims (race, gender, national origin, disability, age) - Risk of retaliation claims - Genetic Information & Non-Disclosure Act ( GINA ) claims - Criminal conviction issues (vary by state) - Additional Protections under state law Increased potential for claims and extended litigation 34 17

21 Social Medical as a Hiring Tool: Best Practices Develop internal guidelines for information gathering. Disseminate guidelines to managers, supervisors, interviewers and hiring personnel. Ensure consistency if searches are to be conducted. Ensure decision-maker does not conduct the search. 35 Social Medical as a Hiring Tool: Best Practices (cont d) Ensure the individual conducting the search is knowledgeable about pertinent t laws and information that t may be protected. t Keep documentation (i.e., sites searched and information learned and considered). Cross-reference any information gleaned online with the candidate s submitted application materials. Do not attempt to gain access to non-public information. Consider seeking candidate s written consent, and ensure compliance with the FCRA if third party will search

22 Risk: Other Potential Forms of Social Media Misuse Employers may be liable for other not-so-obvious violations of the law related to social media usage, such as: - texting/ ing while driving - Publicly endorsing an employer s goods/services without disclosing the existence of the employment relationship 37 Potential Wage and Hour Violations More and more employees are checking work by Blackberry or have at-home access to log onto the company computer system to continue work - sometimes without authorization. In the case of non-exempt employees, this may lead to overtime obligations

23 Implementing Social Media Policies Best Practices EEO policies should apply to all electronic communications policies. When distributing policies, be sure to include employees, temps, contract employees, independent contractors, and others who regularly interact with the company. Obtain and retain signed acknowledgments for all policies. Issue periodic reminders. Consistently apply and enforce policies. Document violations and disciplinary actions. 39 Questions 40 20

24 Social Media Policy Dos and Don ts: Employees, Networking Sites and the Law Amy Melican Proskauer Rose LLP Nausheen Rokerya Proskauer Rose LLP 41 C4CM Upcoming Events For more Human Resources, visit: For more Human Resources CD Recording, visit: