COMPLIANCE AND SOCIAL MEDIA10/2/2013 15 888-580-8373 | NLRB • “The National Labor Relations Act...

10/2/2013

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888-580-8373 | www.hcca-info.org

COMPLIANCE AND SOCIAL MEDIA

Adam Turteltaub

VP of Membership Development

HCCA


Disclaimer

• I’m not a lawyer and this is not legal advice

• The HCCA does not have an official recommendation. What follows

is an examination of what is going on

• I’m hopeless

– Facebook

– LinkedIn

– HCCAnet

– Even Twitter (very rarely)

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How would you describe your use of social media?

A. I never use Myface, Spacebook or LinkedUp

B. I use it somewhat

C. I use it frequently

D. Sorry, what were you saying? I’m updating my status.

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How Social Media Looks to Compliance Officers

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How Social Media Looks to Employees

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Have you had to terminate an employee over social media issues other than wasting company time?

A. Yes

B. No

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The Original Social Media

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The Reaction

• “You are deliberately misrepresenting how you look when you hunt.”

• “What are you doing telling everyone about our hunting party? The competing clans will all find out!”

• “Did you clear it with the chief that you’re just splattering this where everyone can see?”

• “Great, now the deer are going to sue us.”

• 27 clubs up (Pleistocene era likes)

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The Evolution

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The Change?

• Speed of communications

– Can update faster than we can think

• Ability to reach so many people

• Put another way: Never before has mankind had the opportunity to

offend so many people so many ways and so permanently

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Proliferation of Choices

• Facebook

• MySpace

• Twitter

• Flickr

• Instagram

• LinkedIn

• Pinterest

• Google+

• Ning

• Plus a thousand more in a thousand garages

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A New Equation

• How we think of risk:

– Risk = Hazard

• Sandman’s Equation:

– Risk = Hazard + Outrage

• Social Media Equation

– Risk = (Hazard + Outrage) x Social Media

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Today

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Opportunities to Access Social Media

• Ubiquity is the rule

– Desktop

– Laptop

– Tablet

– Smartphone

• Number one usage of cell phones today among the younger

generation:

– Texting

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SOCIAL MEDIA IN THE WORKPLACE: RESEARCH DATA

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Ethics Resource Center Data

• Examined social media usage in two studies

– 2011 National Business Ethics Survey

– 2012 supplemental survey

• Key findings:

– >1 in 10 employees spend at least 30% of their workday linked to one or

more social networks

– 3/4s of workers surveyed report belonging to one or more social

networks (as of 2011)

– 72% of workers 30+ take part in social networks

– 72% report using social networks during every workday

– 28% spend an hour or more each day this way

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• Less likely to social network at work:

– Employees who intend to remain at the company for 5+ years

– Non-management

• More likely to social network at work:

– Under age 30

– Middle managers

– Top managers

• Segmented workers into three groups:

– Non-work social networkers (28%)

– Moderate social networks at work (62%)

– Active social networks: 30%+ of their time at work on social networking

sites (10%)

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• Active Social Networkers (ASN)profile:

– 4 of 10 in middle management

– 47% are under 30 (vs. about 25% of total workforce)

• The more active the social networker the more likely they are to use

a mixture of work and personal equipment, even at work

– Makes control more difficult

• Evidence that relationships at work are now also on social networks

as well

– 42% of supervisors have an online connection to an underling

• 60% among ASNs

– Majority of supervisors say posts have an impact on their thinking about

employees

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• Some good news about feelings of responsibility

– 79% consider how their employer would react before posting work-

related content

– 64% consider how employer would react to personal information posted

– 84% of supervisors consider what their reports would think

– 61% report being unlikely to post about their company being in the news

– BUT: ASNs are fare more likely to share work-related content via social

media

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• ASNs face greater ethics risk than others

– Witness more misconduct

– Report more pressure to compromise standards

– Report experiencing more retaliation

– Oddly, though, they have positive views of management’s commitment

to ethics

• Not surprisingly, ASNs are also less wedded to their jobs

– 72% report being likely to change employers within five years (vs. 40%

for rest of US workers)

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THE RISKS

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HCCA Data Breach Survey Findings

• 68% suffered a breach in last year

• 20% had four or more

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HCCA Data Breach Survey Findings


Don’t Forget The Risks of “Controlled” Social Media

• It’s not just nurses and their patients

– HIPAA is just one risk

• Marketing department and others with official roles often make

mistakes

– Don’t appreciate that social media is official media

– Rely on automation

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Notable Errors

• Kenneth Cole during Egyptian revolt:

– “Millions are in uproar #Cairo. Rumor is they heard our new spring collection is now available online at….”

– Lesson: Tying into breaking issues has risks

• MSN

– “Bee Gees co-founder Robin Gibb dies at 62. Click ‘like’ to pay your respects.”

– Lesson: “Like” can be a poor choice to show support

• NRA the day of the Aurora Shooting

– “Good morning, shooters. Happy Friday! Weekend plans?”

– Lessons: Pre-scheduled tweets can be dangerous. When something big happens, be sure you haven’t just said something that looks bad.

• Chrysler

– “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to f------ drive

– Lesson: Make sure you’re using the right account

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One More Wrinkle: BYOD

• Rising trend in business of BYOD: Bring Your Own Device

• Challenges in setting controls of what employee does on his or her

own property

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Legal Considerations

• Employment-related

– Discrimination

– Harassment

– Labor

• Privacy and data protection

• Defamation and free speech

• Intellectual property

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Legal Considerations

• Confidentiality/Privacy

– Disclosures by staff

– Prying into private lives

• Liability for establishing the forum for expression

• Material disclosures

• May not be possible for lawful activity outside of the workplace

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NLRB

• “The National Labor Relations Act protects the rights of employees

to act together to address conditions at work, with or without a

union. This protection extends to certain work-related conversations

conducted on social media, such as Facebook and Twitter.”

– The caution: “Employer policies should not be so sweeping that they

prohibit the kinds of activity protected by federal labor law, such as the

discussion of wages or working conditions among employees.”

• Even disclosing confidential information may counts as protected

– The reassurance: “An employee’s comments on social media are

generally not protected if they are mere gripes not made in relation to

group activity among employees.”

– The challenge: What’s a gripe and what’s a discussion?

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NLRB

• Multiple reports issued explaining actions

– Business community still uncertain

– See www.nlrb.gov/node/5078

• Consistent focus on Section 7 rights to concerted action and to offer

mutual aid or protection

– Can be difficult to see that a policy calling for not disclosing confidential

information could be seen as a violation

• Salary data is confidential

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WHAT TO DO?

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The Temptations

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The Temptations

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Does your organization have a social media policy?

A. Yes

B. No

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Does it cover:

A. Employee personal

use

B. Official

spokesperson use

C.Use of internal

social media

D.Use in recruiting

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Not Just One Policy

• At least four uses to address:

– Employee speaking for him or her self on public social media

• Or inadvertently for the company

– Employees using internal social media

– Official corporate spokespeople

– Managers and HR when hiring

• Each has different roles and risks

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CEB Recommendations for Effective Social Media Policies

• Defines the appropriate use of social media at work and at home

• Clearly states when an employee can or cannot act as a

representative of the company

• Explicitly explains what employees can and cannot discuss publicly

• References appropriate employee behavior as defined by code of

conduct, privacy, disclosure guidelines, or other applicable policies

already in place

• Reminds employees that regular corporate standards and values

apply to all posts

• Encourages employees to be forthright about their identify and to

own what they post

• Includes industry, culture, or other company specific requirements

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CEB Recommendations for Effective Social Media Policies

• Reserves company right to judiciously remove any comments or

posts

• Explains consequences of policy violations

• Includes clause prohibiting inappropriate content

• Policy language is simple, clear and easy to understand

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SEC

• April 2013 began permitting publicly-traded companies to announce

earnings on social media

– Investors must first be informed that information will be posted there

– “But the next time material information is disclosed on an executive’s

Facebook page without the company alerting all shareholders to look

there for information, the matter will likely be met with an SEC lawsuit

instead of a report.”

• Gene Goldman, McDermott Will & Emery LLP

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PUTTING IT ALL TOGETHER

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Social Media Policy

• You need a policy that:

– Covers all uses

• “Personal”

• Official

• HR-related

– Protects privacy

– Respects existing laws

• NLRB

• But also need to ensure that it is understandable to employees

– Training is essential

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Virtue of a Policy and Education

• ERC data revealed policy making lags

– 72% of companies have a code of conduct

– 46% have established rules for Internet use

– 32% have rules relating to social networking

• Enormous benefits to those with policy

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SN Policy Linked to more Scrupulous Attitudes About Social Networking

40%

76%

60%

50%

88%

75%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Unnacceptable topost about co.

even if unnamed

Consider co.reaction before

posts about work

Consider co.reaction beforepersonal posts

No SN Policy

SN Policy

43Source: Ethics Resource Center


Training and Risky Behavior% Who Agree or Strongly Agree

85%

43%

78%

60%

34%

72%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

I consider how mydirect reports' postimpact company

Ok for company totake action against

employees forpersonal posts on

personal time

Before postingpersonal info, Iconsider how

employer wouldreact

Aware of SN Training

Not Aware of SN Training

44Source: Ethics Resource Center

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SUTTER HEALTH

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Full Policy:

7 Pages

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Tip Sheet

1 Page


www.sutterhealth.org/employees/social-

media-policy.html

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THINK POSITIVE

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Social Media As Asset

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AND REMEMBER TO KEEP REVIEWING YOUR POLICY

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What’s Hot Keep Changing

• Search Engine 101

– Excite

– Alta Vista

– Ask Jeeves

• MySpace

– From first to something else

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Circular Evolution of Electronic Communication

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And Social Media is Not the First Cause for Terror

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We survived them all!

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Sources

• Ethics Resource Center

• CEB (Corporate Executive Board

– Compliance and Ethics Leadership Council

– General Counsel Roundtable

• socialmediagovernance.com

• www.nlrb.gov/node/5078

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Thank You!

Adam Turteltaub

[email protected]

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COMPLIANCE AND SOCIAL MEDIA10/2/2013 15 888-580-8373 | NLRB • “The National Labor Relations Act...

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