New Jersey League of Municipalities SOCIAL MEDIA AND ELECTRONIC COMMUNICATIONS THE IMPACT OF TECHNOLOGY IN THE WORKPLACE Presented by: BRIAN W. KRONICK, ESQ. Genova, Burns & Giantomasi (973) 533-0777 November 16, 2011
Social Media: Definition Social Media: Media designed to be disseminated through social interaction, created using highly accessible and scalable publishing techniques. Social media uses Internet and web-based technologies to transform broadcast media monologues (one to many) into social media dialogues (many to many). Wikipedia, 2010 Common social media forms: blogs, company forums, wiki sites, YouTube, Facebook, Twitter, Friendster, LinkedIn, etc. 2
What Are The Benefits Of Social Networking? Sense of Community Branding/Sales/Marketing Customer Service Sharing Knowledge and Ideas Recruiting 3
Legal Risks What should you be worried about? 1. Employee Free Speech/Right to Privacy v. Employer Right to Discipline/Terminate 2. Claims of Protected Concerted Activity 3. Harassment/Discrimination 4. Confidentiality/Disclosure 5. Facebooking at work 6. Competition issues 4
Legal Risks Right to Discipline Employees Free Speech & Right To Privacy v. Employers Right To Discipline/Termination Employee has a First Amendment right to free speech and a Fourth Amendment right to privacy in certain of his personal belongings. So, the question becomes: When can an employer regulate the activities of its employees that occur online in the context of social networking? 5
Legal Risks Right to Discipline Employer has the right to discipline/terminate when: the person is an employee, and the activity negatively impacts the Employer in some way, the activity occurred using the Employer s computer network and the Employer has a policy regarding the right to monitor or the Employer has a policy regarding the proper use of social media that was violated. 6
Legal Risks Protected Concerted Activity Generally under the National Labor Relations Act, an employer may not retaliate against employees for engaging in conduct that is considered protected, concerted activities. That means when 2 or more employees complain about their working conditions they are protected from adverse action from their employer. These employees do not have to be unionized in order to be protected under the NLRA.
Legal Risks Protected Concerted Activity 3 recent cases reveal that the NLRB is using social media to demonstrate its commitment to protect employees. In NLRB v. AMR: union employee posted negative comments about her supervisor on her facebook account after he denied her union representation during an investigative meeting. On facebook that night, she called him very derogatory names. Other co-workers joined in on the wall posts in support of the original employee. She was fired for her original post which violated AMR s social media policy by placing AMR in a bad light on a social network. Case settled in first month.
Legal Risks Protected Concerted Activity NLRB v. Thomson Reuters: NLRB is arguing that a writer for Thomson Reuters was improperly disciplined for tweeting the following:
Legal Risks Protected Concerted Activity Because this writer was making a statement for all guild members, this is also being considered protected concerted activity. This employee is a union activist AND Was only verbally disciplined.
Legal Risks Protected Concerted Activity NLRB v. Hispanics United of Buffalo employees engaged in concerted activity protected by the NLRA when they used a worker s personal Facebook page to post angry and defensive messages regarding another co-worker s comments about their work. First post-hearing decision by an NLRB judge involving a Facebook posting. Reason for termination of employees (harassment) unsubstantiated
Legal Risks Protected Concerted Activity NLRB scrutinizing these types of communications and going after companies who are taking action against any employees with union ties.
Legal Risks Protected Concerted Activity NLRB Report on Social Media Cases Examples Where NLRB Found Policy Was Too Broad Posting pictures of company (ex. logo) Making disparaging comments about company or co-workers Using company name, address, and information in their personal profiles or revealing info re: co-workers/clients Using social media in way that would compromise privacy, constitute embarrassment of any employer/employee, or lack truthfulness or damage reputation of employer/employee
Legal Risks Protected Concerted Activity NLRB Report on Social Media Cases Examples of Best Practices for Social Media Policies Clear and understandable to average employee Not overbroad Put employees on notice (examples of prohibited conduct and definitions of ambiguous terms) Limiting language advising employees that policy does not apply to activities protected by NLRA
Legal Risks - Harassment/Discrimination Harassment/Discrimination: Employees cannot use social media as a vehicle to harass each other or treat each other unfairly. Remember: Carefully evaluate support for any adverse action taken based on an employee s use of social media to harass 15
When Do Legal Issues Arise? Pre-Hire: Recruitment/Screening Hiring Decision Post-Hire: Discipline/Termination Facebooking at work or about work events Post-Termination: Employees retaining contact with clients/vendors 16
Pre-Hire Issues Thirty-four percent of hiring managers who admit that they have screened job candidates via social networking profiles say that they found content that caused them to dismiss a candidate from consideration, according to a survey by CareerBuilder.com. 17
Pre-Hire Issues Profile Disqualification Candidate posted information about them drinking or using drugs (41 percent) Candidate posted provocative or inappropriate photographs or information (40 percent) Candidate had poor communication skills (29 percent) Candidate bad-mouthed their previous employer or fellow employee (28 percent) Candidate lied about qualifications (27 percent) Candidate used discriminatory remarks related to race, gender, religion, etc. (22 percent) Candidate's screen name was unprofessional (22 percent) Candidate was linked to criminal behavior (21 percent) Candidate shared confidential information from previous employers (19 percent) 18
Pre-Hire Issues Profile Supported Qualification Candidate's background supported their qualifications for the job (48 percent) Candidate had great communication skills (43 percent) Candidate was a good fit for the company s culture (40 percent) Candidate's site conveyed a professional image (36 percent) Candidate had great references posted about them by others (31 percent) Candidate showed a wide range of interests (30 percent) Candidate received awards and accolades (29 percent) Candidate's profile was creative (24 percent) 19
Pre-Hire Issues: Hiring Process Social Media should not change your common sense approach to hiring. Your legal obligations regarding what can and cannot be considered during the interview and hiring process are the same. If you could not use it before, you cannot use it now simply because you learned about it through social networking sites. Examples: political affiliation; religion; age or approximate age; disabilities; sexual orientation; race 20
Discipline/Termination Post Hire No Right to Privacy while using Employer computers. [internet use and computer monitoring policy]. Right to Free speech is balanced by Employer s right to manage business and responsibility for its employee s actions. 21
Post Hire Harassment/Discrimination Fair Trade/Competition Breach of confidentiality Breach of duty of loyalty Employees need to know that their online conduct subjects them to discipline, even if it occurs outside of work, not on the Employer s computers, so long as it touches or concerns the employer. 22
Facebooking at work Post Hire Employees are now using Facebook/twitter to communicate with each other regarding workplace events and issues. This has become a non-work sanctioned means of communication. How many of you are friends with your subordinates? 23
Post Hire What about learning too much information about employees from their social network accounts? -Employee on FMLA leave: Facebook pictures show them surfing at the beach? Dancing at a night club? Courts have been holding that this social networking information is relevant and discoverable. 24
Post Hire Romano v. Steelcase, Inc. NY Court permitted discovery of contents from employee s Facebook and MySpace pages which displayed content in direct contradiction to her claims that she had sustained permanent injuries. Privacy setting to friends-only did not prevent discovery Previously deleted items discoverable
Post Termination Continued Contact with Clients/Vendors: Can you require that employees end their Facebook/LinkedIn connections with all of your existing clients? Current case law suggests that employees can violate their non-compete agreements by continuing to connect with clients and customers on their social networking sites after termination. 26
Social Media and the First Amendment City of Ontario v. Quon et al. Supreme Court s first case on electronic privacy rights of public employees Court weighs officer privacy rights against government's interest in managing public workplace Government read text messages of officers to determine if the character limit placed on phones forced officers to pay out of pocket for work-related expenses or if it was paying for personal communications Court found public employer could read text messages from phones provided by employer because it had work-related purpose
Social Media and the First Amendment In the Matter of Darious Smith, City of Newark Messages posted on NewarkSpeaks.com (defamed and ridiculed fellow or superior officers) Messages posted while off-duty Court said police officers held to higher standard State agencies have an interest in regulating their employees conduct related to speech, particularly when such speech may disrupt governmental operations.
Social Media and the First Amendment In the Matter of Moses Harb, Town of West NY ALJ upheld discipline of officer for comments on MySpace page ALJ upheld officer s removal from employment Not constitutionally protected speech Website was accessible to public and he identified his position as a police officer (important issue)
Social Media and the First Amendment Examples of potential employer interests: Maintain discipline Harmony among members Public confidence in ability to fulfill its mission Need for confidentiality Need to limit conduct impeding proper and competent performance of duties
Social Media and the First Amendment Recent Controversial Story Union County high school teacher makes anti-gay postings on Facebook Compared homosexuality to a sin that breeds like cancer Occurred outside of school setting May have implications on First Amendment and Social Media
Social Media and the First Amendment Recent Controversial Decision in Paterson Administrative Law Judge ruled that tenured teacher should lose job for Facebook posting i m not a teacher i m a warden for future criminals. Districts need to operate schools efficiently outweighed teacher s right to free speech here
Practical Remedies: Policies/Training Comprehensive policies are an Employer s first line of defense against the risks inherent in employee use of social media.
Practical Remedies: Policies/Training Challenges/Considerations: 1 st Amendment: Craft policy narrow enough to restrict or advise only on prohibited conduct v. Employment Laws: Policies need to protect employees in the workplace v. Union Activity: Enforcement: Mindful of disciplinary action against what might be deemed protected activity
Practical Remedies: Policies/Training A Good Policy will communicate expectations and will address The proper use of business-related social media Confidentiality Respect for copyright, fair use and financial disclosure laws Transparency/Disclaimers Language Approval of Content Disciplinary process
Policy Essentials Advise employees act at their own peril; Prohibit use of social media which injures the reputation of the Company or its clients or which discloses confidential information; Advise employees that their own reputation is at risk; Advise to use common sense in postings; Ensure postings clearly reflect personal point of view, not the point of view of the Company;
Policy Essentials Advise employees not to use company logos or trademarks without permission; Comply with copyright, privacy, fair use and other applicable laws Referral of media inquiries Endorsements Applicability to other policies
Practical Remedies: Policies Other Relevant Policies To Consider: Electronic Communications Policy Internet Usage/Monitoring Policy Anti-Harassment/Discrimination Policy
Practical Remedies: Training Meaningful Training Program A meaningful training program offered to your employees to review these policies and guidelines will also provide an excellent defense to your organization for an employee s improper use of the social media policy.
Policy Distribution And Acknowledgement Distribute Policies and Require that Employees Sign that they Received Policy and are Responsible for Reading it. Several Ways To Accomplish: Simply handing out and signing off Attach to paychecks or paystubs Email if there is some method of tracking receipt In a training session or meeting so long as the employees have to sign in