Social Media in the Workplace: Avoiding Legal Pitfalls

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1 Social Media in the Workplace: Avoiding Legal Pitfalls Todd F. Palmer & Timothy J. Connors Calfee, Halter & Griswold LLP February 13, 2013

2 Social Media: The Basics

3 Social Media: The Basics

4 Social Media: The Basics Facebook stats: More than 900 million active users, over 525 million daily users 58% of active users log on to Facebook in any given day Average user has 138 friends

5 Social Media: The Basics Twitter stats: 140 million active users 340 million: tweets per day now 140 million: tweets per day a year ago 3 years, 2 months, 1 day: Time it took to send first billion Tweets 3 days: Time it now takes to send a billion Tweets

6 Opportunities

7 Opportunities New avenues of communication New ways to share information that helps all employees in performing their jobs Decentralized flow of information between companies and consumers, providing customers with enhanced service and satisfaction Ties employees more directly to branding and marketing efforts

8 Opportunities New opportunities for... Branding; traditional and viral marketing Promotions and contests Customer service and feedback Responding to rumors, addressing negative publicity, correcting service problems Building community For some businesses, SM are no longer optional

9 Opportunities New sources of information about employees & candidates Previously unattainable information about hobbies, activities, lifestyles of employees and applicants All too often, the information learned is negative; may be legitimately disqualifying But beware: significant risk...

10 Legal Risks: Employment Law

11 Employment Law Risks Learning protected class status of applicants or employees Race, age, sex, religion, national origin, disability, pregnancy; in some jurisdictions, sexual orientation. Employers cannot take adverse employment actions based on same. Beware learning of criminal records: new EEOC Guidelines.

12 Employment Law Risks Unlawful harassment SM fosters communication between employees, and between employees and supervisors. Beware inappropriate communications based on sex, race, religion, and other protected classes; can give rise to harassment claims. Friend requests = danger zone; especially from supervisor to subordinate.

13 Employment Law Risks Retaliation claims SM sites can be a forum where employees express opposition to perceived discrimination. Employers who learn of this protected activity can find themselves in a bind; any adverse employment action can form basis of retaliation claim. Take care to develop legitimate, non-retaliatory reason for action.

14 Employment Law Risks: NLRA National Labor Relations Act Social media is (unwittingly) a forum for NLRA protected activity by employees Online discussion of wages, hours, terms and conditions of employment is concerted protected activity -- even if done off duty, at home NLRB: most vigorous employment-related federal agency re: social media NLRB has decided 30+ social media cases since 2010

15 Employment Law Risks: NLRA NLRA Basics Employer need not have a union to be covered by NLRA; applies to nonunion companies. Section 7 rights: employees may act together (concerted activity) to improve their wages, hours, and all terms and conditions of employment. Section 7 protects right of employees to discuss wages and conditions of employment with each other, and with third parties. New NLRB web page to educate non-union employees about their Section 7 rights:

16 Employment Law Risks: NLRA NLRA Basics Common denominator of the NLRB s social media cases Any work rule/policy which explicitly prohibits Section 7 activity, or which employees could reasonably construe as prohibiting Section 7 activity, is unlawful Let s look through some excerpts of social media policies and how the NLRB has ruled.

17 Employment Law Risks: NLRA What Is Illegal, and Why Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications. Unlawful: Rule prohibits a broad spectrum of communications that could include criticism of the employer s policies or treatment of employees -- the type of criticism which is protected by Section 7.

18 Employment Law Risks: NLRA What Is Illegal, and Why Adopt a friendly tone when engaging online. Don t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone....

19 Employment Law Risks: NLRA What Is Illegal, and Why This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory such as politics and religion.

20 Employment Law Risks: NLRA What Is Illegal, and Why Unlawful: Purpose of this rule is to prevent online communications that could become heated or controversial. But conversations about unionism can become just as heated as politics or religion. The rule prohibits robust but protected discussions about working conditions or unionism.

21 Employment Law Risks: NLRA What Is Illegal, and Why Employees should avoid harming the image and integrity of the company... Unlawful: Employees could construe it to ban protected criticism of the employer s policies or treatment of employees.

22 Employment Law Risks: NLRA What Is Illegal, and Why You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services. Remember to use good judgment. Unlawful: Employees could reasonably construe this rule as prohibiting protected criticism of the employer s labor policies or its treatment of employees.

23 Employment Law Risks: NLRA So What is Permitted? Any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers. Lawful: No harassment, bullying, discrimination, or retaliation -- a list of plainly egregious conduct that cannot be construed to apply to Section 7 activity.

24 Employment Law Risks: New Laws re Password Access Maryland has passed first state statute regarding access to social media: Prohibits employers or their agents from requesting or requiring access to social media accounts of employees and prospects Prohibits employers and their agents from accessing those accounts Prohibits penalizing employees or refusing to hire prospects who do not divulge passwords

25 Employment Law Risks: New Laws re Password Access At least 12 other states have introduced legislation similar to Maryland s: California, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, South Carolina, Washington... and Ohio. Federal bill has also been introduced: Social Networking Online Protection Act (SNOPA)

26 Social Media & Workers Compensation Attempts to Establish the Louisiana-Pacific Defense: Be Careful What You Wish For July 2011 I.C. Decision: IW terminated for posting Facebook comments demeaning to her Employer, in violation of Internet Postings Rule IC rejected Louisiana-Pacific defense, because no proof IW had received the Internet Postings Rule

27 Social Media & Workers Compensation Internet Postings Rule likely interfered with Employee s Section 7 rights Section 7 protects Employee speech about the Employer -- even demeaning and critical speech Lesson: be careful in advising employers on terminating employees for their social media use Don t convert a Workers Compensation tactic into a winning Unfair Labor Practice charge

28 Social Media & Workers Compensation Vocational Assessments/PTD Claims Frequent Users of Facebook and other social medial sites may be putting on display a vocational asset IW might be capable of sustained remunerative employment

29 Social Media & Workers Compensation Fraud Investigations Facebook and other social media postings may reveal activities inconsistent with allowed conditions or claimed impairments

30 Other Legal Risks Defamation Privacy laws US and foreign laws on personal data and breaches Privacy policy violations Litigation Risks Discovery tool against Company and its witnesses Loss of privilege and work product protection Juror use (misuse?) of social media

31 Avoiding Legal Pitfalls: Best Practices

32 Best Practices: Social Media Policy An effective tool in protecting employers against liability and harm to reputation Not one size fits all. Companies need to consider extent to which they want employees engaging in social media on the job, needs of the business, and corporate culture. Policy options range from full embrace to complete prohibition. Be mindful of NLRA considerations in drafting.

33 Best Practices: Elements of Social Media Policy Address on-duty and off-duty use State ground rules for use of social media on the job, using company-provided resources. State ground rules for off-duty use on employee s home computer or other non-company resources, when employee identifies the company in his/her profiles or posts.

34 Best Practices: Elements of Social Media Policy Restrict use of company names and IP Ban use of company trademarks and names as components of usernames or other identifiers. If employees list their place of employment in profiles, place limits on use of company name to prevent appearance that profiles originate from official company representative. Prohibit employees from proposing or conducting business on behalf of company.

35 Best Practices: Elements of Social Media Policy Delineate clear lines of responsibility Employees solely responsible and liable for posts made outside of company request/outside course and scope of duties. Employees responsible for any online activity conducted through company computer/network. Employees responsible for online activity off-duty /through own computer if they identify themselves as company employee.

36 Best Practices: Elements of Social Media Policy Require review before posting On-duty postings/profiles should first be reviewed/approved by management. When in doubt, employees should check with management prior to posting... Exception: posts related to employee wages, benefits, terms and conditions of employment, employment policies, or working conditions.

37 Best Practices: Elements of Social Media Policy Mandate disclosure of relationship If employees endorse or promote company goods/services, they must clearly and openly reveal their relationship to the company. FTC guidelines on endorsements and testimonials apply to social media Prohibit deceptive/false claims. Prohibit false identities/anonymous posts/shills when commenting on company goods/services.

38 Best Practices: Elements of Social Media Policy Prohibit illegal use & poor judgment Require that employee social media use not violate any laws or regulations. Prohibit behavior that infringes intellectual property rights of others. Prohibit discriminatory and harassing conduct.

39 Social Media Policy -- Elements Restrictions on Sharing of Data/Information No posting of names, photos, personally identifiable information of persons outside the Company without permission. Prohibit disclosure of confidential, proprietary, or trade secret information of the company or of other companies or persons, except for any information concerning employee wages, benefits, terms and conditions of employment, employment policies, or working conditions.

40 Best Practices: Elements of Social Media Policy Reference/incorporate the Company's Electronic Communications Policy That will automatically graft onto the social media policy prohibitions against illegal discrimination and harassment, disclosure of confidential information, and a number of other important legal protections for the company

41 Other Best Practices Monitor and respond to posts on Company-branded channels and third party social media forums Multi-disciplinary rapid response team Follow the relevant third party terms of use Establish sound terms of use where possible Address takedown requests promptly Obtain third party and employee consents where appropriate

42 Questions?? Todd Palmer Labor & Employment Tim Connors Information Technology & Intellectual Property

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