Social Networking Websites: Employment Law Pitfalls Avoiding Discrimination, Violation of Privacy, and Fair Credit Reporting Act Claims

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1 presents Social Networking Websites: Employment Law Pitfalls Avoiding Discrimination, Violation of Privacy, and Fair Credit Reporting Act Claims A Live 90-Minute Audio Conference with Interactive Q&A Today's panel features: Christopher J. Murphy, Partner, Saul Ewing, Philadelphia Marcia N. Jackson, Counsel, Akin Gump Strauss Hauer & Feld, Dallas Wayne E. Pinkstone, Partner, Fisher & Phillips, Radnor, Pa. Tuesday, August 18, 2009 The conference begins at: 1 pm Eastern 12 pm Central 11 am Mountain 10 am Pacific The audio portion of this conference will be accessible by telephone only. Please refer to the dial in instructions ed to registrants to access the audio portion of the conference. CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click View, select Navigational Panels, and chose either Bookmarks or Pages. If you need assistance or to register for the audio portion, please call Strafford customer service at ext. 10

2 Social Networking Websites: Employment Law Pitfalls August 18, 2009 Presented by: Christopher J. Murphy, Esquire 1

3 Avoiding the Pitfalls Current Trends - - Blurring the Lines Between Professional and Private Lives Potential Labor and Employment Law Implications of Social Networking ( SN ): Twitter, Facebook, MySpace, LinkedIn And Whatever Tomorrow Will Bring.... 2

4 Avoiding the Pitfalls Statistics Regarding Utilization of SN Sites*: Management 74% believe such sites put firm/brand reputation at risk 15% consider these risks at the Board level 17% have risk mitigation policy/program * Social Networking and reputational risk in the work place Deloitte LLP 2009 Ethics & Workplace Survey results: Available at 3

5 Avoiding the Pitfalls Employer v. Employee 60% of managers say they have the right to know 53% of employees say SN content is none of the company s business 33% of employees don t consider the business implications of postings 4

6 Avoiding the Pitfalls Employee Utilization: 55% visit SN sites at least once a week 20% admit visiting SN sites during work hours 5

7 Avoiding the Pitfalls Executive Utilization: 31% of CEOs are on Facebook 30% use SN as part of business/operations strategy 23% use SN for recruiting purposes 6

8 Avoiding the Pitfalls Current Legal Trends Claims involving Private Sector Employers Claims involving Public Sector Employers 7

9 Avoiding the Pitfalls Private Sector Claims Pietrylo v. Hillstone Restaurant Group, C.A. No (D.N.J.) after being terminated for posting derogatory statements on a password protected MySpace account, several employees of the Houston s restaurant chain sued their employer for violating the Stored Communications Act, 18 U.S.C , for improperly accessing those restricted postings. After a five-day jury trial, the company was found liable for violating the SCA. Although the damages awarded were nominal, plaintiffs counsel has sought $125,000 in attorney s fees. 8

10 Avoiding the Pitfalls Private Sector Claims NLRA Issues -- Section 7 protects employees' right to form, join and assist labor organizations, engage in collective bargaining, and to engage in other concerted activities for mutual aid or protection. This protection typically extends to comments/complaints regarding terms and conditions of employment. For example, a rule broadly prohibiting discussion of wages is facially violative of the NLRA and an unfair labor practice. See Guardsmark v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007). Disciplining an employee for violating such a rule is also an unfair labor practice. The Labor Board and the Courts are just beginning to grapple with how fits into the federal labor paradigm. See Guard Publishing Company v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). Employees posting workplace-related commentary on SNs is the next frontier in this evolving landscape and it fill unfold under a pro-union/pro-employee Labor Board. 9

11 Avoiding the Pitfalls Private Sector Claims Doe v. XYZ Corp., 382 N.J. Super. 122 (App. Div. 2005) negligence-based cause of action recognized against employer for failing to exercise reasonable care to prevent harm to non-employee third-parties (employee s wife and minor daughter) arising from employee s improper use of computer systems to post child pornography on the Internet. 10

12 Avoiding the Pitfalls Private Sector Claims Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) notwithstanding comprehensive electronic communications policy, an employee s s to her counsel, sent using employer s computer systems and a personal account, were covered by the attorney/client privilege. These s were discovered after employee resigned and sued the Company for discriminating against her. Case remanded for, inter alia, consideration of sanctions against counsel. 11

13 Avoiding the Pitfalls Public Sector Claims Domelights.com Case (The Guardian Civic League v. Philadelphia Police Department, Civil Action No ) class action suit by organization representing black police officers against police department and others alleging hostile work environment and other civil rights violations relating to the maintenance of a web site, allegedly containing racially offensive material. The website allegedly was maintained by white police officers, including at least one supervisor. The suit further alleges that police department management was aware of the website and its content. 12

14 Avoiding the Pitfalls Public Sector Claims Claims Against Public Schools/Colleges Yoder v. University of Louisville, 2009 WL (W.D.Ky. 2009) nursing student reinstated after being dismissed from nursing school for posting on MySpace; court s decision based on inadequacies in the school s honor code and confidentiality agreement. 13

15 Avoiding the Pitfalls Public Sector Claims Claims Against Public Schools/Colleges Key v. Marion Gordon Pat Robertson, 2009 WL (E.D. Va. 2009) law school student s claims based on his dismissal from law school for postings on Facebook and school-related website dismissed on summary judgment. 14

16 Avoiding the Pitfalls Public Sector Claims Claims Against Public Schools/Colleges Spanierman v. Hughes, 2008 WL (D. Conn. 2008) high school teacher s claims related to the non-renewal of his contract dismissed on summary judgment; the teacher had posted materials deemed inappropriate on MySpace. 15

17 CONTACT INFORMATION Christopher J. Murphy, Esquire 15 th and Market Streets Centre Square West, 38 th Floor Philadelphia, PA Phone: Fax:

18 Saul Ewing s Office Locations Baltimore, Maryland Lockwood Place 500 East Pratt Street, Suite 900 Baltimore, MD fax: Chesterbrook, Pennsylvania 1200 Liberty Ridge Drive, Suite 200 Wayne, PA fax: Harrisburg, Pennsylvania Penn National Insurance Tower Two North Second Street, 7th Floor Harrisburg, PA fax: Newark, New Jersey One Riverfront Plaza Newark, NJ fax: New York, New York 245 Park Avenue, 24th Floor New York, NY Fax: Philadelphia, Pennsylvania Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA fax: Princeton, New Jersey 750 College Road East Princeton, NJ fax: Wilmington, Delaware 222 Delaware Avenue, Suite 1200 Wilmington, DE fax: Washington, D.C Virginia Avenue, N.W. Suite 1000 The Watergate Washington, D.C fax:

19 Risks Versus Opportunities of Online (On-the-Clock) Social Networking: Before, During and After the Employment Relationship Attorney Marcia Jackson 0

20 Pre-Employment: Recruiting Post recruiting information, solicit applications, reach jobseekers around the world Enables potential applicants to gain a sense of the company and gauge whether they would be a good fit Lets potential applicants "hear" from current company employees 1

21 Applicant Evaluation Use of external blogs/social networks to "mine" applicants Industry-specific blogs, discussion forums, newsgroups, listservs Use of external blogs/social networking sites to vet applicants Can give clues to an applicant s analytical skills, communication skills, tact, and general maturity Can provide insight as to how others feel about the applicant Can help potentially avoid negligent hiring claim 2

22 "Facebook IQ" Some recruiters look at Facebook pages to get an estimate of the individual s IQ, personality traits and whether they would be a "good fit" Are they outgoing, as might be needed for a sales job? Do they use creative phrases and correct grammar? What books or activities do they reference (if any)? Number of "friends" social skills Look at comments by "friends" for more insight 3

23 Background Checks Online? One recruiter reported that "I ve used MySpace to do some reference checking to see if a candidate would be a good hire. One such candidate foolishly posted publicly that he had enlisted in the army but would try to get out of it if he found a job. Needless to say, we didn t bring him in for an interview." 4

24 Pre-Employment Potential Risks Sites may allow potential employers to discover "protected" information (e.g., age, marital status, familial status, sexual orientation, religious affiliation, political views, etc.) Possible Solution If you choose to examine external social networks, have nondecision maker conduct search and filter out information related to protected characteristics before passing along to hiring manager Have searches run by employer and not third party to avoid potential issues under the Fair Credit Reporting Act or statespecific statutes Carefully consider criteria in determining how and when to use online social networking sites in evaluating applicants 5

25 During The Employment Relationship To what extent should employers monitor employees use of social networks, and to the extent monitoring is conducted, what can/should employers do with information obtained from online social networks? 6

26 Busted! Nintendo employee Jennifer Zenner posted an "inexcusable behavior" blog, listing insulting comments about her fellow female workers; not well received Jeffrey Spanierman: teacher who was too friendly with his students. He had a MySpace page which was considered too "peer-like" and the school board asked him to take it down. He did, but (proving their "peer-like" point) just put up a new one. Fired. University of New Mexico Hospital workers took cell phone pictures of patients and posted them on MySpace. Also fired. Swiss employee took day off work for migraines and said she couldn t work in front of a computer then was active on Facebook that day. Also fired. Youtube/Facebook searches: Fired for Facebook 7

27 To What Extent Can (And Should) Employers Monitor This Conduct? Limitations on monitoring off-duty conduct: Privacy issues Laws restricting such monitoring Common law protections against invasion of privacy Constitutional protections: First and Fourth Amendment claims Electronic Communications Privacy Act of 1986, 18 U.S.C et seq. 8

28 Other Considerations State laws At least five states (CA, CO, CT, NY, ND) have enacted "lifestyle" statutes prohibiting discrimination of lawful, offduty conduct OSHA False Claims Act Privacy issues 9

29 Potential Problems For Employers During The Employment Relationship Possible liability for torts committed by employee including defamation of company employees, customers, or competitors, invasion of privacy, negligence, etc. ("cybersmearing") Employers have no duty to monitor comments made on electronic bulletin board, but do have a duty to stop coemployee harassment "in settings that are related to the workplace" if they know or have reason to know such harassment is taking place (Blakely v. Cont l Airlines, Inc., 751 A.2d 538 (N.J. 2000)) Employers may have defamation cause of action against former employees for information posted on blogs (Varian Med. Sys., Inc. v. Delfino, 6 Cal. Rptr. 3d 325 (Cal. Ct. App. 2003), rev d on other grounds, 106 P.3d 958 (Cal. 2005)) 10

30 Potential Problems (Cont d) Possible liability for harassment or discrimination claims Possible intellectual property infringement Possible dissemination of trade secrets or company confidential or proprietary information 11

31 Additional Potential Risks Retaliation Title VII FLSA NLRA ADA FMLA

32 Non-Legal Risks Impact on Employee Morale Adverse Publicity 13

33 After The Employment Relationship LinkedIn (or similar) Review" or Recommendation Risks Some employers give a "review" of their employees, or recommend individuals on LinkedIn and other such sites If an employee is terminated and the good review stands on the website, this may be considered tantamount to giving a positive reference of a not-so-positive employee. Also could be used in a lawsuit to contradict a bad formal performance review As a general rule, only post/provide reviews to the same extent you would provide written references Even more of an area for concern since it is a public forum, and not information provided solely to one other potential employer (and thus arguably privileged) The reverse is true should a bad "review" appear may be used to support a claim of unlawful interference with future employment 14

34 After The Employment Relationship Issues (Cont d) Use in potential litigation Depositions Jury selection Mediation/settlement leverage Many as yet unanswered questions concerning discovery 15

35 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work Social Networking Websites: Employment Law Pitfalls August 18, 2009 Presented by: Wayne E. Pinkstone Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Portland ME Portland OR San Diego San Francisco Tampa

36 Avoiding the Pitfalls How should employers address the use of social networking websites by employees Should an employer adopt a written policy regarding employee use of social networking websites? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 2

37 To Ban? To Regulate? It is lawful and appropriate for an employer to regulate or even prohibit its employees from engaging in online social networking and internet blogging activities while on Company time, property or business. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 3

38 To Ban? To Regulate? It is also becoming increasingly common for employers to try to limit employees from posting disparaging comments about the Company, or discussing the Company s business, while blogging and social networking by adopting a policy making it clear that such conduct is prohibited and will not be tolerated. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 4

39 To Ban? To Regulate? Contrary to popular belief, employees of private employers do not have a constitutional free speech right to disparage their employers and co-workers and their employer s customers, or to publicly discuss internal business matters, while blogging or social networking on the internet. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 5

40 Best Practices Adopt a well-crafted Blogging and Social Networking policy. Notify employees of its existence and strict enforcement. Publish, Distribute, Acknowledgement. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 6

41 Best Practices Social networking activities should be subject to Company s policies and procedures on: protecting the confidentiality of Company information, safeguarding Company property, prohibiting any type of employment discrimination or harassment, and governing use of the Company s communication and computer systems Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 7

42 Best Practices-Policy Employees are prohibited from disclosing or discussing in online social networking and blogging activities: Company confidential or proprietary information information regarding the Company s clients or business partners details of a particular client engagement Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 8

43 Best Practices-Policy Employees are prohibited from using the name, trademarks, logos, other identifying marks or copyright-protected material of the Company or its clients. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 9

44 Best Practices - Policy Employees engaging in online social networking and blogging activities are expected to remain respectful of the Company, and its employees, its products and services, its clients, its partners, its affiliates, its vendors and suppliers, and its competitors (and their products and services). Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 10

45 Best Practices - Policy Employees are prohibited from posting any material that is obscene, vulgar, defamatory, threatening, discriminatory, harassing, abusive, hateful or embarrassing to another person or entity, and should not engage in activity that reflects or may reflect negatively on the Company, its affiliates, employees or clients. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 11

46 Best Practices - Policy Harassing or discriminatory comments may be deemed inappropriate even if the Company name is not mentioned. If such communications in any way adversely affect work relationships, the employee may be subject to discipline and termination under the Company s Anti- Harassment Policy. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 12

47 Best Practices - Policy Employees must make it clear in any online social networking and blogging activities that the views and opinions they express about work-related matters are their own, have not been reviewed or approved by their employer, and do not necessarily represent the views and opinions of their employer. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 13

48 Best Practices - Policy This policy is not meant to restrict an employee s use of Social Networking Sites and/or blogs for purely personal reasons where the employee does not identify himself or herself as an employee of the Company. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 14

49 Best Practices - Policy However, any employee who identifies himself or herself as a Company employee on his or her personal Social Networking Site profile is presenting himself or herself as a representative of the Company and is expected to ensure that the content of his or her page complies with professional standards of conduct. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 15

50 Best Practices - Policy Employees are strictly prohibited from listing their Company address on their profile unless the Social Networking Site or blog is used purely for Company business or professional purposes. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 16

51 Best Practices Policy Employees should expect that any information created, transmitted, downloaded, exchanged or discussed on Social Networking Sites and/or blogs may be accessed by the Company at any time without prior notice. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 17

52 Privacy Issues Employers and employees need to be aware of potential privacy issues with the use of social networking websites. Consider these limits on what employees may do, to minimize risks of privacy suits. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 18

53 Privacy Issues Reduce or eliminate any expectation of privacy by the employees in the company computer and system and explain what employees should and should not do. Employees should expect that information exchanged on social networking sites and/or blogs may be accessed by the company at any time without prior notice. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 19

54 Privacy Issues Prohibit use of company trademarks, logos, and copyrighted materials, without specific authorization. Prohibit disclosure of company materials to competitors or others outside your company. Train employees in the content and applications of your rules. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 20

55 Privacy Issues Monitor compliance with the rules. Train employees in the content and applications of your rules. Be consistent in enforcing them. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 21

56 Privacy Issues Limits on Employer Representatives: Managers and supervisors are the face of the company. What they say on social networking websites is a reflection of the company. Do not disclose private information about employees on social networking sites. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 22

57 Privacy Issues Limits on Employer Representatives: Let managers and supervisors know that improper disclosure of private information can subject both them and the company to liability for invasion of privacy. Adequately train supervisors and other management personnel regarding the policies and their enforcement to ensure consistency. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 23

58 Privacy Issues Caution managers on pitfalls of becoming friends with employees on social networking sites Don t reveal anything you wouldn t say or post in the break room Diligently use privacy controls to manage flow of information Could become part of harassment or discrimination claim even though personal page Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work 24

59 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work Presented by: Wayne E. Pinkstone 201 King of Prussia Rd., Suite 650 Radnor, Pennsylvania Phone: (610) Fisher & Phillips LLP Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas ATTORNEYS AT LAW Louisville New Solutions at Work Jersey New Orleans Orlando Philadelphia Portland ME Portland OR San Diego San Francisco Tampa 25

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