Hagan Barrett & Langley PLLC Lawyers for Leaders

Transcription

1 Hagan Barrett & Langley PLLC

2 OUR FIRM Whether they are already at the top of their industry, company, or organization, or have strong aspirations to achieve a higher level of success, our clients are all leaders.

3 Social Media and Your Employees Avoiding the Legal Land Mines Presented by Beth Langley

4 OBJECTIVES FOR SESSION Review recent developments in federal employment/labor laws regarding Social Media Discuss effective Social Media Policies Focus on effective ways to protect your organization s Trade Secrets and Intellectual Property from misappropriation or misuse

5 WHAT S NEW Recent National Labor Relations Board ( NLRB ) Activity Equal Employment Opportunity Commission ( EEOC ) Activity Internet Usage and Security Issues Employee s increased use of internet and social media at work and the employer s loss of control

6 WHAT IS SOCIAL MEDIA? Twitter Facebook YouTube LinkedIn WhatsApp Flickr Vine TapTalk Instagram Hinge Secret OKCupid SnapChat Tumblr Pintrest

7 IS SOCIAL MEDIA PROTECTED SPEECH? IT DEPENDS Stored Communications Act ( SCA ) violation of federal statute for unauthorized access of stored electronic communications Constitutional protections for some governmental employees (state and federal) Employment laws that protect some social media activities of employees and applicants

8 RECENT NATIONAL LABOR RELATIONS BOARD ( NLRB ) ACTIVITY

9 NLRB ACTIVITY NLRB was established as federal agency to enforce National Labor Relations Act ( NLRA ) Traditionally governed Employer/Union activities Over the last several years, NLRB has focused on nonunion employers Section 7 of NLRA: Employees shall have the right to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection

10 NLRB ACTIVITY NLRB s website on Concerted Protected Activity:

11 NLRB ACTIVITY NLRB has focused on social media posts, including: Facebook postings Facebook Likes Tweets Social media policies

12 NLRB ACTIVITY NLRB has found employers in violation of NLRA Sections 7 and 8 (unfair labor practices) for the following: Disciplining or terminating employees for social media posts Social media policies that have a chilling effect on employees rights to engage in concerted protected activity

13 NLRB ACTIVITY Examples of NLRB Decisions where employer was held to violate NLRA for employee discipline: Employer fired employee for posting vulgar remarks about supervisor on Facebook. The posting contained complaints about workplace conditions, which NLRB considered were sufficient to be concerted protected activity. Employee posted photos of employer-sponsored events with sarcastic comments about stale chips, inexpensive cookies, semi-fresh fruit, and over-cooked hot dogs served to clients. Employee posted: [coworker] feels that we don t help our clients enough at XXX. I about had it. My fellow coworkers how do u feel? Tell her to come do my f***ing job n c if I don t do enough, this is just dumb.

14 NLRB ACTIVITY Examples of NLRB Decisions where employer was held to violate NLRA for employee discipline: Negative comments, with curse words, concerning employer s tax practices, that were Liked by a co-worker on Facebook Employee post: tomorrow I m bringing a California workers (sic) rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all of the crap that s going on that s in violation.

15 NLRB ACTIVITY Examples of NLRB Decisions where employer was held to violate NLRA : Broad Social Media Policies that prohibit employees from: Making damaging or defamatory remarks about the Company; Making disrespectful comments Using Company logo Using inappropriate language on social media Identifying themselves as an employee of the organization Limiting discussions of terms and conditions of employment

16 NLRB ACTIVITY Examples of Decisions where Employer did NOT violate NLRA for employee discipline: Employee complained about wages, but called customers rednecks and stated he hoped the customers choked on glass. (Distinction: Posts were not shared with co-workers and no co-workers commented). F*** [Employer] - Held to only be an expression of employee s personal gripe

17 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ( EEOC )

18 EEOC If employer is aware of allegedly harassing or discriminatory social media conduct by employee and does not address it, employer could be liable under Title VII, ADA, ADEA, etc., just as if the comments were made in the workplace No specific EEOC guidance on Social Media

19 EEOC June 25, 2015 EEOC Commissioners met and addressed Social Media issues including: Circumstance when an employer s social media activities are retaliatory? Whether employers are liable for harassment of co-workers on social media platforms? Discriminatory hiring and recruiting practices through social media

20 EEOC However, beware of NLRA issues. NLRA and EEOC are not on the same page!

21 EEOC Hiring Practices: - Pending age discrimination cases Issue: Does recruiting only through social media sites have a disparate impact on older recruits who do not use these sites like millennials? - Trolling Unlawful to troll Facebook and other sites to obtain personal information about applicants that employers cannot lawfully ask during hiring process (age, pregnancy, number of children, marital status, veteran status, disability, etc.)

22 EFFECTIVE SOCIAL MEDIA POLICY Per NLRB Guidance: - Narrowly tailor to avoid infringing on employee s rights under NLRA - Don t prohibit all social media activity - Specifically outline any prohibited activity, such as disclosing company and customer financial information - State that employees may discuss their own wage information and terms and conditions of employment

23 EFFECTIVE SOCIAL MEDIA POLICY Effective Social Media Policy: - Define terms such as Trade Secrets and Confidential Information. - Don t prohibit all social media use during work time. Allow nominal activity, so long as it does not interfere with work activities (e.g., similar to personal cell phone). - Do not monitor employees personal social media accounts.

24 CYBERSECURITY AND SOCIAL MEDIA

25 CYBERSECURITY AND SOCIAL MEDIA Recent FBI data: Victim businesses incurred costs ranging from $5,000 to $3 million due to cyber incidents by disgruntled or former employees.

26 CYBERSECURITY AND SOCIAL MEDIA Per Wall Street Journal, Departing Employees are Security Horror, October 21, % of departing employees keep confidential information 40% of former employees plan to use confidential information from former employer 60% of employees state that a co-worker has offered confidential documents from a former job 52% of employees don t believe it s a crime to use a competitor s confidential business information

27 CYBERSECURITY AND SOCIAL MEDIA Per Wall Street Journal, Departing Employees are Security Horror, October 21, % believe an employee who develops software source code or another proprietary development for a company has some ownership interest in that development or invention 68% of employees say their organization does not take adequate steps to protect proprietary information and intellectual property

28 CYBERSECURITY AND SOCIAL MEDIA Per Wall Street Journal, Departing Employees are Security Horror, October 21, % of employees say that their employer takes no action when former employees misappropriate confidential information or intellectual property

29 CYBERSECURITY AND SOCIAL MEDIA Your employees think they are a victim. How do you fight back and win?

30 CYBERSECURITY AND SOCIAL MEDIA Confidentiality and Trade Secrets Agreements with all key employees - Include a provision where employee agrees that all intellectual property and inventions are the property of the organization - Require assignment of any developments, patents, copyrights, or other intellectual property rights - Beware of NLRB no overly broad agreement

31 CYBERSECURITY AND SOCIAL MEDIA Research and obtain cost-effective cyber liability insurance Data-loss prevention software that tracks sensitive information and blocks certain information from being copied, downloaded, or uploaded Coordinate policies between IT and HR concerning BYOD, external devices, downloading, uploading, etc. Require return of all property upon termination of employment Enforce misappropriate promptly through NC Trade Secrets Protection Act

32 QUESTIONS?