Pitfalls of Social Media in the Workplace

Transcription

1 Pitfalls of Social Media in the Workplace Presented by Michael C. Terrell Taft Stettinius & Hollister LLP 1 Overview of Social Media Popular Sites: Facebook Twitter LinkedIn Pinterest Google Tumblr Instagram 300 million users 50% of users access on any given day Fastest-growing demographic: age billion minutes on Facebook each day 2 1

2 Relevant Statistics Employer Viewpoints 58% of business executives believe reputational risk of social media should be a top management priority. Yet only 15% say it actually is a top priority. 60% of business executives believe they have right to monitor how employees/applicants portray themselves online. Source: Deloitte LLP Ethics & Workplace Survey Results 3 Relevant Statistics Employee Viewpoints 74% say it is easy to damage a company s reputation on social media sites. 24% do not know if their company has a social media policy. 61% will not change what they do online even if employer is monitoring. 53% believe what they do online is none of their employer s business. Source: Deloitte LLP Ethics & Workplace Survey Results 4 2

3 Key Social Media Issues Pre-Employment Issues Using social media as a screening tool. Making discoveries that impact hiring decisions. Employment Issues Managing employees use of social media on/off the clock. Safeguarding company s reputation. Minimizing legal risks. Creating a Social Media Policy 5 Pre-Employment: Applicant Screening Advantages/Opportunities Access more information not typically available by traditional hiring processes. Make hiring decisions based on lawful information found on social network sites: Alcohol and illegal drug use Fabricated qualifications Poor work ethic Poor writing/communication skills Problems with previous employers Racist or discriminatory views Provocative/inappropriate photos 6 3

4 Pre-Employment: Applicant Screening Legal Risks Obtaining information about applicant s protected status (e.g., race, age, religion, national origin, gender, sexual orientation, pregnancy, etc.) Violations of Fair Credit Reporting Act Invasion of privacy laws Violation of state Recreational Activity laws WARNING: Cannot un-ring the bell 7 Pre-Employment: Applicant Screening 8 4

5 Pre-Employment: Applicant Screening Recommendations Screen all applicants in a uniform manner. Create a list of all social media sites you will search. Pick a point in the hiring process and screen all applicants at that point. KEY: Have a non-decision maker conduct search and provide decision makers only relevant, lawful information. 9 Employee Use of Social Media Opportunities/Advantages More collegial/family atmosphere Business development opportunities Better communications with co-employees and customers 10 5

6 Employee Use of Social Media Internal Problems/Legal Risks Decreased productivity Libel and defamation Bad mouthing the company (e.g., gripe sites) Discrimination, harassment and retaliation Copyright infringement Disclosure of confidential information 11 Employer Monitoring Legal Risks Invasion of Privacy Must be highly offensive to a reasonable person Must have reasonable expectation of privacy Employer Access to Usernames/Passwords Legislation introduced/pending in at least 26 states Passed in 10 states: Arkansas, Colorado, Illinois, Nevada, New Jersey, New Mexico, Oregon, Utah, Vermont and Washington 12 6

7 Employer Disciplinary Actions Legal Risks Private employers may take disciplinary action for inappropriate social media use. Discipline may be viewed as unlawful retaliation if: Employee complains about discrimination Employee engages in protected Whistleblower activity Employee works for a public employer comments may be protected free speech Employee is protected by state Recreational Activity laws 13 Employer Disciplinary Actions Legal Risks NLRA The National Labor Relations Act protects employees rights to engage in protected concerted activities. Protected Concerted Activities: Defined as two or more employees conferring or taking action for their mutual aid or protection regarding terms and conditions of employment. These protections apply even where employees are NOT unionized. 14 7

8 Employer Disciplinary Actions Legal Risks NLRA General Counsel for the National Labor Relations Board issued following guidance: To qualify as protected concerted activity, use of social media must involve commentary regarding terms and conditions of employment. Mild profanity and insulting language in posts generally will not justify discipline if used in the course of protected concerted activity. The social media activity must be concerted or in some way involve other employees. 15 Employer Disciplinary Actions Legal Risks NLRA Workplace Policies: Workplace policies violate the NLRA if they reasonably tend to chill employees in the exercise of their Section 7 rights. 16 8

9 Employer Disciplinary Actions Legal Risks NLRA Workplace Policies Solicitation/Distribution Policy: Employer violated NLRA by arbitrarily enforcing a policy prohibiting employees from using company for non-jobrelated solicitations. Employer allowed employees to send s for Girl Scout cookies and beauty products, but prohibited communications about work conditions or union activity. 17 Employer Disciplinary Actions Legal Risks NLRA Workplace Policies Confidentiality Policy: Employer violated NLRA by including in handbook a confidentiality policy that prohibited employees from discussing wages. NLRB held that such a policy chilled employees rights to engage in protected concerted activity. 18 9

10 Employer Disciplinary Actions Legal Risks NLRA Workplace Policies Social Media Policy: Employer violated NLRA by including in handbook a social media policy that prohibited employees from making disparaging or inappropriate comments about employer or coemployees. NLRB held that such a policy chilled employees rights to engage in protected concerted activity. 19 Employer Disciplinary Actions Legal Risks NLRA Example An employee asked coworkers in a facebook post for their reactions to a complaint about work quality and staffing levels. Four employees responded to the post. The employer fired the original poster and all four who made comments. NLRB viewed the employee s request for assistance from coworkers as concerted activity and concluded that the terminations were illegal

11 Employer Disciplinary Actions Legal Risks NLRA Example Employee complained on Facebook about supervisor. In post, employee described supervisor, among other insults, as a scumbag. Despite insults, NLRB held employee s discussion of supervisory actions with coworkers protected concerted activity. 21 Employer Disciplinary Actions Legal Risks NLRA Example Sales person for luxury car dealership criticized employer on social media for serving cheap snacks (hot dogs and chips) at a sales event. NLRB held that employee was vocalizing concerns of fellow employees about an event that could have an impact on employees compensation (commissions) and was thus protected concerted activity

12 Creating a Social Media Policy Considerations Limiting employee use of social media versus encouraging proper use of social media to promote the company. Employees must be trained on proper use of social media. 23 Creating a Social Media Policy Key Provisions Working time versus non-working time. Use of social media on company equipment. Use of social media must comply with company policies (e.g., harassment/discrimination policies). Prevent disclosure of confidential/proprietary information. Unless expressly authorized, employees should not speak on behalf of the company

13 Creating a Social Media Policy Protection of NLRA Rights All social media policies need the following disclaimer: Nothing in this policy shall be interpreted to prohibit concerted activities by employees that are protected by law. 25 Developing Areas of Social Media Employer Searches on Social Media Expose violations of non-compete/non-solicitation agreements. Discover FMLA and workers compensation fraud. Investigation of discrimination/harassment claims. FLSA Violations Use of electronic media for working purposes during so-called non-working time. Employer potentially liable for overtime pay

14 Social Media Disasters Preparing for Potential Social Media Disasters Develop a comprehensive management before any potential PR disasters strike. Assume the worst case scenarios. Identify members of crisis communications team. Respond quickly, personally and directly. 27 QUESTIONS? Michael C. Terrell Taft Stettinius & Hollister LLP (mterrell@taftlaw.com Taft Stettinius & Hollister LLP