What Managers Need to Know About Social Media: Top 10 Tips for Mitigating the Risks of Social Media in the Workplace FEATURED FACULTY:

Transcription

1 What Managers Need to Know About Social Media: Top 10 Tips for Mitigating the Risks of Social Media in the Workplace FEATURED FACULTY: Spencer Hamer, Partner, Michelman & Robinson

2 Spencer Hamer, Partner, Michelman & Robinson Spencer Hamer represents employers in state and federal court, and before administrative bodies, on labor and employment matters including discrimination, harassment, breach of contract, family medical leave, disability, wage and hour, retaliation, unfair competition, trade secrets, wrongful termination and privacy rights. Mr. Hamer believes that employers are best served by lawyers who help them avoid litigation, and he therefore devotes a substantial amount of his practice to advisory work. He conducts training on general employment law risk issues and routinely counsels on a variety of matters including leaves of absence, employment agreements, accommodations, employment policies and procedures, wage and hour audits, workplace investigations and anti-harassment training.

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4 Social Media Dos & Don ts: Balancing Employer Interests and Employee Rights Spencer Hamer, Esq. Social Media Statistics Nearly 90%* of employers use social media for business purposes. More than 70%* of businesses have disciplined employees for misusing social media. *See Proskauer 2013/14 Survey on Social Media in the Workplace. 1

5 Social Media Statistics Employers with active policies have increased from 60% to nearly 80%.* 36% of employers actively block access to sites, up from 29%.* *See Proskauer 2013/14 Survey on Social Media in the Workplace. Social Media Defined Formats are evolving Typically, one or more of the following Social Networks (Facebook, Google+, and Myspace) Blogs (Blogger, Tumblr, and Twitter) Media Sharing (Flickr, Google Video, Picasa, and YouTube); 2

6 Benefits of Social Media Website visitors Knowledge sharing Marketing and brand awareness Client relationships Recruiting and morale Public relations, crisis management Burdens of Social Media Liability exposure Costs of implementation Data breaches Improper communications 3

7 National Labor Relations Act NLRA is the primary statute governing U.S. labor law Creates framework for employee and employer relations Allows discussions of concerted activity Even through personal social media accounts National Labor Relations Board Issues decisions and guidelines regarding NLRA Including protected employee speech Covers social media 4

8 NLRB and Social Media The appropriate inquiry in social media cases: whether the employer s policy would reasonably tend to chill employees in exercising collective bargaining rights.* Protected: discussions of terms and conditions of employment. Not protected: Mere gripes and complaints *See Costco Wholesale, 358 NLRB No. 106 (Sept. 7, 2012). NRLB and Social Media Employees make Facebook posts complaining about coworker Coworker had criticized their job performance Posts made off work hours Employer fired the employees Protectable under NRLA? See Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012). 5

9 NRLB and Social Media Protected concerted activity.* Key factors: Responding to criticisms of job performance Directly implicated terms & conditions of employment Employees reinstated and reimbursed for lost earnings *See Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012). NLRB and Social Media Employees disciplined for discussing a supervisor's substandard performance. Facebook conversation was concerted activity.* *Design Technology Group LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013). 6

10 NLRB and Social Media Employer encourages employees to join Twitter Employee starts account Tweets criticism of employer, others in industry Tweets with sexual content Protected conduct?* *Memorandum to All Regional Directors from Anne Purcell, Associate General Counsel, Regarding Report of Acting General Counsel Concerning Social Media, No. OM (Aug. 18, 2011). NLRB and Social Media No Key factors: Did not relate to terms & conditions of employment Did not seek to involve other employees in employment issues Employee was lawfully discharged *Memorandum to All Regional Directors from Anne Purcell, Associate General Counsel, Regarding Report of Acting General Counsel Concerning Social Media, No. OM (Aug. 18, 2011). 7

11 NLRB and Social Media Employee criticizes a U.S. Senator On Senator s Facebook wall Criticism reflected poorly on her employer Not protected* Did not discuss with other employees Did not expect Senator to help her Employee lawfully terminated *Memorandum to All Regional Directors from Anne Purcell, Associate General Counsel, Regarding Report of Acting General Counsel Concerning Social Media, No. OM (Aug. 18, 2011). NLRB and Social Media Social media policies cannot: Be overly broad; or Restrict lawful communication. Example Barring employees from discussing private matters E.g., sick calls, FMLA call outs, leaves of absence, and ADA accommodations. Overbroad.* *See Costco Wholesale, 358 NLRB No. 106 (Sept. 7, 2012). 8

12 NLRB and Social Media Company policy: Requires employees to identify themselves when: Making a social media posting about company Bars employees from: Using company logo in any manner Legal policy?* *See Boch Imports, Inc., 362 NLRB No. 83 (Apr. 30, 2015). NLRB and Social Media: Case Study 3 No Overbroad Covers protected comments on terms and conditions Self-identification interfered with protected activity Employees have right to use logo in protected communications Company revised handbook and posted notice about revisions *See Boch Imports, Inc., 362 NLRB No. 83 (Apr. 30, 2015). 9

13 Retaliation Plaintiff must prove: Protected conduct was: but for cause of the retaliation Defense: Employer would have taken the same action, regardless of protected conduct.* *See Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532, 186 L. Ed. 2d 503 (2013). Retaliation: Case Study Upcoming vote to form union After disagreement with supervisor, employee posts: Profanity laced Facebook post Complained about work conditions Targeted supervisor and family Vote YES for the UNION!!!!! Employee fired Valid retaliation claim?* * Pier Sixty, LLC, 2-CA and 2-CA (Apr. 18, 2013) 10

14 Retaliation: Case Study Yes* Employee reinstated with back pay Key facts: Post contained call to unionize; i.e. concerted activity Workplace tolerated extreme vulgarity daily, but No employee ever discharged for vulgarity Managers frequently swore at employees Takeaway: context matters * Pier Sixty, LLC, 2-CA and 2-CA (Apr. 18, 2013) Other Issues 11

15 Defamation Elements: a false and defamatory statement concerning another; an unprivileged publication to a third party; fault amounting at least to negligence on the part of the publisher; and Harm.* * 558 of the Restatement (Second) of Torts. Defamation: Case Study Car dealership fires employee with cancer Employee s brother launches Facebook campaign Accuses dealership of firing sister because of cancer Dealership loses $100,000 in one month Other employees and ownership received threats Valid defamation claim?* *See Clay Corp. v. Colter, 30 Mass. L. Rptr. 536 (Mass. Super. Ct, Norfolk County 2012). 12

16 Defamation: Case Study Yes Court found no basis for accusation other employees had cancer but not fired Accuser had no evidence Court filed $1.5M attachment against accuser Harassment and Discrimination Employers who know of social media-based harassment of an employee by co-workers or customers may be liable for sexual or gender-based harassment.* Title VII: Employers may not discriminate against any individual in terms, conditions or privileges of employment because of race, color, religion, sex, or national origin. Sexual harassment is discrimination if: so severe or pervasive as to alter the conditions of employment and create a hostile work environment. * *See Amira-Jabbar v. Travel Servs., Inc., 726 F. Supp. 2d 77, (D.P.R. 2010). 13

17 Harassment: Case Study Employee complained about graphic, explicit images of her Drawn on bathroom wall Discussed and shared on social media Employer knew images were being shared on social media Fired complaining employee soon after Valid claim? *See Meng v. Aramark, No. 12-cv-8232 (N.D. Ill. 2015). Harassment: Case Study Potentially Going to trial for: Hostile work environment Retaliation Key facts: Employer knew of offending behavior Did nothing *See Meng v. Aramark, No. 12-cv-8232 (N.D. Ill. 2015). 14

18 Bring Your Own Device (BYOD) Laptops, smartphones, etc. Possible claim if employer knew or should have known of harassment Consider monitoring employee devices Balance privacy rights Advance notice and written policy Harassment & Cyberbullying Cyberbullying Potentially accessible to large group of employees Spread rapidly Potentially never taken down Creates extended period of embarrassment Hurts employee morale 15

19 Misappropriation of Trade Secrets The Uniform Trade Secrets Act (UTSA) Information derives value from: not being generally known to the public; and subject of reasonable efforts to maintain secrecy. Misappropriation of Trade Secrets Are social media contacts a trade secret? Facebook friends Twitter followers lists LinkedIn contacts 16

20 Misappropriation of Trade Secrets Potentially Twitter followers and password could constitute a trade secret.* LinkedIn account not a trade secret.** However, could have been owned by company, except: No agreement in place *See PhoneDog v. Kravitz, No. 3:11-cv MEJ (N.D. Cal. settlement announced Dec. 3, 2012). ** See Eagle v. Morgan, No (E.D.Pa., March 12, 2013) Trade Secrets Confidential information can be easily disclosed. Even employees not seeking to harm the company. Excited about a new product, marketing strategy or merger. Warn employees not to share 17

21 Confidentiality Employee sued for age discrimination and retaliation Reached confidential settlement Employee s college-aged daughter posted: Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT. Constituted breach of settlement agreement, payment disgorged Training Employees Timing: Hiring/Orientation, Current Employees Content Managers Handbook/Policies 18

22 State Law An evolving body of federal and state law on social media. Public employers face an additional hurdle: Some laws protect speech by public employees. Some states prohibit firing employees for: Lawful off duty activities State Law Many state legislatures have been active in the social media arena. States with laws affecting employers right to seek social media passwords: 18 States considering legislation in 2015: 23 19

23 State Law Many states prohibit employers: forcing employee to log into their accounts in employer s presence. Stored Communication Act Employers can be found liable under SCA Federal law Protects stored communications Protects Facebook posts that are not public* Including wall posts shared only with friends Exception: authorized viewing In other words, a friend But viewing cannot be coerced * Ehling v. Monmouth-Ocean Hosp. Service Corp., 961 F. Supp. 2d 659 (2013). 20

24 Stored Communication Act: Case Study Two employees exchange Skype messages On company computers Employer accessed account Read messages for three hours Informed employee they knew: all about [her] and [her] boyfriends Fired both employees Liable under SCA? *Snyder v. Fantasy Interactive, Inc., No. 11 Civ. 3593(WHP) (S.D.N.Y. Feb. 9, 2012). Stored Communication Act: Case Study Yes Also potentially liable under state privacy claims Key facts: Messages were protected by a password Some messages accessed were done on personal time No attempt to limit purpose of reading Parties settled* *Snyder v. Fantasy Interactive, Inc., No. 11 Civ. 3593(WHP) (S.D.N.Y. Feb. 9, 2012). 21

25 Use of Social Media in Hiring Some information is illegal to request Obtainable by social media! Use of designated person: In-house or third party Policy limiting information to be gathered Is the employer disproportionately screening any particular group? EEOC Press Release Use of social media in hiring can be discriminatory BYOD issues, employer liability for harassment Social media can be source of discovery in litigation EEOC s position: Personal information on social media may not be used to make employment decisions on prohibited bases 22

26 Best Practices 1. Do not prohibit protected or concerted activity. 2. Personal complaints and offensive remarks are not protected. Best Practices 3. Be specific and explain inappropriate posts. 4. Requiring disclaimers on certain posts is acceptable. 23

27 Best Practices 5. Prevent bullying, discrimination, and harassment. 6. Comply with state and federal laws. Best Practices 7. Be careful about what gets posted about the company. 8. Make clear who owns certain materials. 24

28 Best Practices 9. Protect confidential trade secrets. 10. Educate and enforce. Thank You Spencer Hamer, Esq. 25