EMPLOYMENT LAW BACK TO BASICS WEBINAR SERIES

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EMPLOYMENT LAW BACK TO BASICSWEBINAR SERIES

Program 2 – Enforcing Social Media and Computer Usage Policies

Friday, April 26, 201312:00 (Noon) – 1:00 p.m. (Central)

Other Program Dates / Topics to be Selected by Webinar Participants

Friday, June 28, 2013 / 12:00 (Noon) – 1:00 p.m. (Central)

Friday, August 30, 2013 / 12:00 (Noon) – 1:00 p.m. (Central)

Friday, October 25, 2013 / 12:00 (Noon) – 1:00 p.m. (Central)

Friday, December 20, 2013 / 12:00 (Noon) – 1:00 p.m. (Central)

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ENFORCING SOCIAL MEDIA AND COMPUTER USAGE

POLICIESHaley R. Van Loon

BrownWinick666 Grand Avenue, Suite 2000

Des Moines, IA 50309-2510Telephone: 515-248-6625Facsimile: 515-248-6626

E-mail: [email protected]

mailto:[email protected]

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With advent of social media many employers looking for ways to capitalize on advantages inherent in these new ways of communicating with customers, vendors and employees

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Social Media Pitfalls

• Proprietary/confidential information

• Identity protection

• Cyber-bullying/harassment

• Deceptive trade practices

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“Best Practice Policies” v. National Labor Relations Board (NLRB)

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NLRB

Federal agency responsible for safeguarding rights of employees to organize and to prevent and remedy unfair labor practices

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Protected Concerted Activity

The right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection

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• Overbroad employer policies

• Unlawful discharge or discipline

Two Contexts of NLRB Review

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NLRB Analysis of Employer Policies

1. Explicitly restrict protected activities; or

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2. a. Would employee reasonably construe policy to prohibit protected activity, or

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2. b. Was rule enacted in response to union activity, or

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2. c. Has rule been applied to restrict protected activity

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Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.

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In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.

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OK? Not OK?

Use technology appropriately

If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. . .

Don’t release confidential guest, team member or company information. . .

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OK? Not OK?

Communicating confidential information

You also need to protect confidential information when you communicate it. Here are some examples of rules that you need to follow:

•Make sure someone needs to know. You should never share confidential information with another team member unless they have a need to know the information to do their job. If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so. If you are unsure, talk to your supervisor.

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OK? Not OK? (cont.)

•Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.

•Watch what you say. Don’t have conversations regarding confidential information in the Breakroom or in any other open area. Never discuss confidential information at home or in public areas.

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OK? Not OK? (cont.)

Unauthorized access to confidential information: If you believe there may have been unauthorized access to confidential information or that confidential information may have been misused, it is your responsibility to report that information. . . .

We’re serious about the appropriate use, storage and communication of confidential information. A violation of [Employer] policies regarding confidential information will result in corrective action, up to and including termination. You also may be subject to legal action, including criminal prosecution. The company also reserves the right to take any other action it believes is appropriate.

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OK? Not OK?

Treat Everyone with RespectOffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.

Other [Employer] Policies that ApplyThink carefully about ‘friending’ co-workers . . . on external social media sites. Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace.

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OK? Not OK? (cont.)

[Employer], like other employers, is making internal social media tools available to share workplace information within [Employer]. All employees and representatives who use these social media tools must also adhere to the following:

•Report any unusual or inappropriate internal social media activity to the system administrator.

[Employer’s] Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act).

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OK? Not OK?

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.

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OK? Not OK?

Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.

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OK? Not OK?

No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.

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So what can my policy include?

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NLRB Analysis of Discipline

Was employee acting with or on the authority of other employees?

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Was employee making statements that clearly implicated working conditions?

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Was employee protesting supervisory action?

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Employer Defenses

Employee would have been discharged even if not engaged in protected activity

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Employer Defenses

Employee activity so “opprobrious” as to render employee “unfit for further service”

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Employer Defenses

Employee was so disloyal as to lose protections under law

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Before you discipline, consider:

Is employee activity related to terms and conditions of employment?

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Were co-workers involved or did they comment on the post?

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Was the activity related to prior discussions with co-workers?

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Has the issue (or will it) been discussed with management?

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Computer Fraud & Abuse Act (CFAA)

18 USC § 1030

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Prohibits accessing a “protected computer” in interstate or foreign commerce “without authorization” and obtaining information, or damaging data/equipment

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Violation is a criminal act, punishable by fines / imprisonment

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Courts have reluctantly enforced, focusing on “without authorization” requirement in CFAA

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Recommendations . . .

Clearly delineate restriction: Avoid broad bans on “unauthorized use” or “competitive purposes”

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Report and reinforce prohibition– Training– Security reminders– Logon prompts

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Caution against undercutting policy through statements or condoning violations

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Include personal devices used / approved for business use

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Articulate that authorization ends upon termination or accepting competitive employment

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Restrictive Covenants and LinkedIn

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Restrictive Covenants

Non-competition Non-solicitation

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“Direct or indirect”

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Public nature of LinkedIn-type social media may undercut argument that employee’s business contacts are a proprietary resource

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Consider . . .

Limiting use of LinkedIn with clients / vendors

Requiring employees to “disconnect” upon termination

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QUESTIONS?

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Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494

DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.

EMPLOYMENT LAW BACK TO BASICS WEBINAR SERIES

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