Social Media Dominance

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1 Social Media Survival Guide: Hiring and Firing in the Era of Social Media Denise M. Visconti Adam Rosenthal Littler Mendelson, P.C. 501 W. Broadway Suite 900 San Diego, CA Social Media Dominance 26.7% - Percentage of online time spent by U.S. internet users on social networking sites Steadily increasing every year 5.0% - Percentage of online time spent by U.S. internet users on Steadily decreasing every year Used to be 85% of social networking on Facebook... Experian, Experian Marketing Services Reveals 27 Percent of Time Spent Online is on Social Networking (April 6, 2013). 1

2 Social Media Dominance How is this impacting employers? Loss of productivity Use of company resources Potential liability! Issue #1: On-Line Recruiting 94% of recruiters use or plan to begin using social networks / media for recruiting 73% plan to invest more in recruiting through social networks 78% of recruiters have hired through a social network 2013 JobVite Social Recruitment Survey 2

3 On-Line Recruiting 43% of respondents had checked applicants social networking sites (up from 39% in 2013, 36% in 2012) 51% of this group responded that they did not hire the person based on what they found (up from 43% in 2013, 34% in 2012) CareerBuilder (June 2014) Recruiting Issues Discovery of information not otherwise known (e.g., posts revealing disability) Inconsistent use of the resource Lack of uniform application Implicit bias against certain groups 3

4 Policy Options 1. Provide notice and ask for permission 2. Access without notice but provide an opportunity to respond 3. Access without notice and provide no opportunity to respond 4. Do not access at all Issue #2: On-Line Background Checks Natalie Boyce has downloaded the background check app, Been Verified, to her iphone. After interviewing Tom Jones, she checks Jones criminal history, finds two convictions, and prepares a negative review of him. Boyce s employer is exposed to potential liability under the Fair Credit Reporting Act if it relies on Boyce s negative review to reject Jones job application 4

5 Fair Credit Reporting Act Prohibits employers from obtaining criminal history on a job applicant from a Consumer Reporting Agency (CRA) without providing notice to the subject and obtaining the subject s consent CRA = A third party who, for a fee, assembles information bearing upon a consumer s credit worthiness, character, general reputation, or mode of living Employer that relies on a report from a CRA must provide pre-adverse action notice and final adverse action notice in connection with any adverse employment action Recommended Policy Prohibit employees from conducting any form of background check Background checks may be conducted only through the employer s authorized vendor 5

6 Issue #3: Harassment/Hostile Work Environment When do private, off-duty acts by employees put an employer at risk? Key facts: White police officers operated Domelights.com, a racist website, and posted racially offensive comments while on and off duty Police Department managers allegedly ignored complaints about the website Plaintiff alleged the Philadelphia Police Department created a racially hostile work environment by allowing it Guardian Civic League v. Philadelphia Police Dept., No. 2:09-CV CMR (E.D. Pa.) (filed July 15, 2009) Key facts: Harassment/Hostile Work Environment Pilots posted allegedly harassing, false, and defamatory comments about a female pilot on the Crew Members Forum, an electronic bulletin board Finding: Harassment by a supervisor that takes place outside of the workplace can be actionable An employer who fails to prevent and promptly correct offending behavior in a workplace may be directly liable for harassment suffered by its employee at the hand of another employee, and also may be liable for the coemployee's harassment under an agency theory Blakey v. Continental Airlines, Inc., 751 A.2d 538 (N.J. 1999) 6

7 Harassment/Hostile Work Environment Things to Consider: Does management know about the postings, or should it have known? Is the activity an extension of a pattern of harassment in the workplace? Does the employer derive any benefit from the social media activity? Issue #4: First Amendment Protections For Employees? First Amendment provides limited protection for public employees Court dismissed claim by teacher that her demotion, which was based on publicly available blog posts containing highly personal and vituperative comments about the school district and her coworkers, violated the First Amendment Teacher s speech was not protected because it disturbed co-worker relations and interfered with teacher s performance of her duties Richerson v. Beckon, 2009 U.S. App. LEXIS (9 th Cir. June 16, 2009) 7

8 CA s Lawful Off-Duty Conduct Law Generally prohibits demotion, suspension, or termination for lawful off-duty conduct away from the employer s premises Employers are restrained from discriminating or retaliating where the conduct itself is protected by the CA Constitution or the Labor Code Sole remedy = Labor Commissioner may advance a claim for lost wages, penalty of up to $10,000 Cal. Labor Code 96(k) Issue #5: Do Employers Have A Duty To Monitor Employees Off-Duty Social Media Activity? Key Facts: Security guard took photos of female employees from customer s computer system, ejaculated on them, and posted them on an adult web site Finding: $1.4 million judgment against security company reversed Court: Employers have no duty to supervise employees private conduct or to persistently scan the worldwide web to ferret out potential employee misconduct. Maypark v. Securitas Security Services, 775 N.W. 2d 270 (Wis. App.2009) 8

9 Monitoring Employees Social Media Activities Social Sentry, a softwareas-a-service product launched in April, provides alerts of employee activity on Facebook, LinkedIn, Twitter, and YouTube. Selected employee or the entire workforce Keyword searches Issue #6: Can An Employer Access A Restricted Profile? Key Facts: Houston s employee creates a group MySpace page Purpose: To vent about any BS while at work without any outside eyes spying in on us Houston s managers asked hostess for her password Two group members are fired Pietrylo v. Hillstone s Restaurant Group, d/b/a Houston s, (D.N.J. 2009) 9

10 Illegal Hacking? Claims: Violation of Stored Communications Act, Invasion of Privacy against Houston s Result: Verdict for employees on SCA claim, but for Houston s on Invasion of Privacy claim Jury Questionnaire: 1. Managers knowingly accessed the group page without employees authorization 2. The group page was private, but plaintiffs had no reasonable expectation of privacy in their statements Gaining Access To Restricted Sites Ask reporting employee to provide screen shots Ask reporting employee to execute voluntary consent form 10

11 Issue #7: Who Is Your Friend? What should employers do about managers friending subordinates? Policy Recommendations: Managers should not send friend requests to subordinates Any employee may reject any friend request without retaliation Issue #8: LinkedIn Recommendations Current employee provides recommendation to former colleague who left the company on bad terms or was terminated for poor performance 11

12 Policy Options 1. Prohibit all recommendations unless in personal capacity 2. Prohibit recommendations by anyone who reviewed the requestor s performance 3. Permit recommendations only for former employees who left voluntarily 4. Recommend anyone about whom you have nothing negative to say; be accurate complete and truthful Issue #9: Accessing A Terminated Employee s Social Media Account Scenario No. 1: Employee returns companyissued laptop. Icon on desktop permits direct access to Facebook account. Scenario No. 2: Terminated employee leaves the workplace with her computer open to Facebook. 12

13 Issue #9: Accessing A Terminated Employee s Social Media Account Potential Claims: Violation Federal Stored Communications Act If employee has adjusted privacy settings Violation of Federal Wiretap Act If employee is in chat during employer s access Note: Employer s access may leave a record on employee s social media page Issue #10: Discovery Of Former Employee s Social Media Activity 1. Check publicly available presence on Web Obtain access to restricted sites through friends of the plaintiff 3. Send a litigation hold letter to the plaintiff covering social media activity 4. Serve discovery request on plaintiff 5. Subpoena social media sites 13

14 THANK YOU Denise M. Visconti Adam Rosenthal Littler Mendelson, P.C. 501 W. Broadway Suite 900 San Diego, CA

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