HR Liabilities of The Digital Age ABC Webinar September 29, 2010
Social Media is Pervasive Facebook 500+ million users Blogs 200 million bloggers Twitter 75 million users LinkedIn 50 million users
Results of the Social Media Explosion Customers, Competitors and the Government are all looking at you and your business Policies and Procedures for your Business
Insurance Options Business and Professional Liability Policies Intellectual property & Cyberspace Coverage Noses, Tails, Umbrellas, Hindquarters
Friends, Fans, and Cyberspace Companies are encouraged by marketing experts to go digital or to embrace social media as a way to bring in new business and promote the company However, new risks of liability are created for businesses along with these new social media opportunities
Social Media and the Law Social media outlets are developing faster than laws are being passed to govern them Examples of current laws governing Electronic Communication E-Discovery in Court Cases Litigation Hold notices are critical Preservation of electronic documents, email, text messages, etc. is required
Recent cases Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Ct. of Md, Sept. 9, 2010) (employer sanctioned for failure to preserve electronic evidence) Van Alstyne v. Electronic Scriptorium Ltd. (4 th Cir. 2009) (jury found for employee whose boss/company president accessed her personal email account without authorization - $386,000 awarded against employer and president with less than 15 employees) EEOC v. Simply Storage Management (Court allowed employer discovery of employee s private social networking activity)
(cont.) Pension Comm of Univ of Montreal Pension Plan v. Bank of America Sercurities LLC (S.D. N.Y. 2010) (Judge sanctioned 13 plaintiffs who failed to diligently search and preserve own Facebook activity.) City of Ontario, Calif. V. Quon (U.S. Sup. Ct. 2010) (Court rejected public employee s invasion of privacy claim against employer that reviewed employee s steamy text messages to girlfriend and ex-wife via employer s pager.) Key v. Robertson, 626 F. Supp. 2d 566 (E.D. Va. 2009) (former student s case against school for Constitutional privacy violations rejected)
Child Pornography Criminal Penalties Pornography in Workplace Reporting Requirements Doe v XYC, 887 A.2d 1156 (N.J. Div. 12/27/05) (company liable to child and parent for failure to stop and report employee s child pornography activity via company computer)
Privacy Rights for Employees of Private Companies In Virginia, employees have no statutory privacy rights Public employees have limited privacy rights Your company does not want to be Virginia s test case
Defamation A false statement about one person or business made to a third party, that harms that person s or business reputation The false statement can be made in any form, including electronic Email, tweets and Facebook are instant, permanent and pervasive statements
Title VII of the Civil Rights Act of 1964 Prohibits discrimination and harassment in the workplace based on sex, gender, pregnancy, color, race, national origin and religion Other laws prohibit age, disability, and sexual preference discrimination and harassment
(cont.) Unlawful workplace harassment: Can occur via electronic words and/or photos Can occur inside or outside the workplace (depending on the circumstances) Carries penalties up to $500,000 plus back pay, interest and attorney fees
Electronic Communications Privacy Act Carries criminal and civil penalties Prohibits intentionally accessing other s electronic accounts or exceeding their authorization to do so Virginia Computer Crimes Act
Post-Litigation and Pre-Employment Background Checks FCRA Include Social Media Subpeonas Discovery Requests
Legal Risks Associated with Employee s Social Media Use Discrimination & Harassment Claims Defamation Improper Disclosure of Employer s Confidential Information Reporting Requirements Child Pornography State law claims re: privacy ECPA illegal interception of elect. comm.
Social Media Policies Samples: socialmediagovernance.com acc.com ibm.com Legal review important Not one size fits all General guidelines: Publish to all employees/contractors Proof of receipt Identify yourself Disclaim company connection to personal comments
General Guidelines (cont.) No expectation of privacy when using company equipment, software or work time No disclosure of company information without permission No obscenity, slurs, insults Comply with company s anti-discrimination and antiharassment policies Don t reference clients, partners, business associates without their advance permission Correct errors quickly
War Stories Thanksgiving Turkey Wanted felon as company fan Sexting Excessive On-line Shopping Creditors Surfing Nestle Mis-steps
Practical Tips Google and Twitter Alerts; Webtrends and Net Spy progams Look Out for Changing Laws Look Out for Changing Social Media Policies by Third Party Providers Employment Laws Still Apply to Information Employers learn through Social Media Please Rob Me / Foursquare (Twitter) Don t Be a Jerk Discipline consistently
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