Social media in the workplace

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2013 Webinar Series

Social Media in the Workplace

Thursday: August 15, 2013

Presented by:

Simplifying business. Benefiting people.

AlphaStaff Welcomes Our Featured Partner!

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Jessica Debono Anderson

Attorney At Law

Orlando Office


Privacy and Social Media in the Workplace

• Social media is here to stay.

• Can expose an employer to liability under several legal theories, such as harassment, discrimination, defamation and invasion of privacy.

• Steps to protect against legal hazards associated with social media content, including social media policies.

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What We Will Discuss

•Social networking’s impact on your workplace

•Potential employer liability from social networking

•Using social networking information for hiring and other employment actions

•Adopting a social media policy

Social networking’s impact on your workplace

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Facebook

• Facebook has over 1 billion active users. • 50% of Facebook users log on everyday. • Adults online who say they participate in social networking has

increased from 8% in 2005 to 72% in 2013. • One out of every 7 minutes spent online is spent on Facebook. • 300 million pictures are uploaded to Facebook everyday. • 22% of employees visit social networking sites 5 or more times

per week; many admit to logging in while at work.


Twitter

• On a busy day Twitter sees about 175 million tweets.

• 62% of Twitter users are in the 18-34 age group.

• Every second 750 tweets are being shared on Twitter.

• Twitter has 140 million active users and sees 340 million tweets per day.

• About half of the world’s Twitter users are from the USA.

• 55% of Twitter users are females.

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Employer Liability

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Potential Theories of Employer Liability

– As with any business activity, social media creates legal risks.

• Legal claims for harassment, discrimination and retaliation.

• Loss of third party information.

• FTC issues arising from employee blogs. The Federal Trade Commission (FTC) has promulgated guidelines addressing appropriate online endorsements (available at http://www.ftc.gov/).

• Loss of company’s confidential information; improper disclosure of confidential or other protected information.

• Legal claims for invasion of privacy.

• Reporting requirements for child pornography.

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Common Questions

• Should our discrimination policies cover on-line activity? — Yes.

• We do not want employees posting all over Facebook, LinkedIn and Twitter disparaging comments about the company. Can we prohibit that? — No. Regardless of whether your workplace is unionized or not, doing so could put you in hot water with the National Labor Relations Board.

• Some of our managers like to review applicants’ public social media profiles. Are there any risks? — There can be which we will discuss.

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Common Questions

• It seems a good idea to screen more applicants’ social media accounts before making offers of employment, so we have included a place on our job application for the individuals to put usernames and passwords to all their social networking accounts. Is this a good risk avoidance strategy? — Probably not. Many states have passed or are considering laws that prohibit employers from asking employees or applicants for this information.

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Asking For Passwords

• States with laws banning employers from asking workers for their user names and passwords for their personal social media accounts:

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Arkansas

California

Colorado

Illinois

Maryland

Michigan

Nevada

New Mexico

Oregon

Utah

Washington


Common Questions

• Can we at least prohibit employees engaged in social networking from disclosing all of the company’s confidential information? — Any prohibition should not be stated broadly, but should be drafted narrowly to include only information that would not infringe on an employee’s right to engage in “protected concerted activity” under the National Labor Relations Act (which, very generally, is an employee’s right to commiserate with other workers about working conditions).

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Social Networking & Hiring


Hiring

• There has been no reported increase in failure-to-hire cases based on information obtained from social networking sites.

• There is no law that directly prohibits the lawful use of social networking sites in the hiring process.

• But there are RISKS.


• A search may yield information about an applicant’s protected characteristics—

– Age, disability/medical information, race, sex, religious beliefs, pregnancy, sexual orientation, military status, marital status or other characteristic

• The search may reveal other protected information—

– Workers compensation claims, bankruptcy filings, criminal or arrest histories, or consumer reports

• Invasion of privacy / Intrusion upon seclusion – get authorization on application

Risks During Hiring


Use of Social Networking Sites in Employment

• Some states have laws that prohibit employers from considering off-duty conduct when making adverse employment decisions.

– California, New York, Colorado, Connecticut and North Dakota have statutes known as “lifestyle discrimination” laws, which ban discrimination based on legal off-duty recreational behavior.

• An employer could arguably violate these laws by terminating an employee after discovering from a social networking site that, for example, the employee was drinking the night before.


Lessons Learned

• If you are going to use social networking sites for hiring decisions:

– Do so consistently

– Rely on job-related criteria (preferably from a job description)

– Make sure to comply with all third-party terms of use agreements

– Make sure candidates are notified, in writing, about the company’s use of social networking sites to gather information

Social Networking & Discipline


Discipline

•Several scenarios that may prompt an employer to discipline an employee for his or social media use:

–Illegal web-based activity while at work.

–Employee who spends the majority of his or her time on-duty on social networking sites or the web.

–Employees who violate social media policy.


Legal Constraints

• Employers must consider legal constraints before taking any adverse action:

– Whistleblower statutes

• Federal and state laws that protect employees who complain about

company conditions affecting health/safety or illegal practices.

– Political activities or affiliations

• Many states prohibit employers from regulating employee political activities

and affiliations or influencing employees’ political activities.

– Legal off-duty activity

• Some states protect an employee or applicant’s legal off-duty activities.


Legal Constraints (cont.)

– Potential discrimination claims

– National Labor Relations Act

• Affords employees right to engage in “concerted activity,” including the right to discuss the terms and conditions of employment. Only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered.


Examples of Permissible Discipline

• Newspaper employee terminated following tweet about news headlines including homicides, several tweets with sexual content and criticism of an area television station but the tweets were not shared with co-workers. NLRB found this was not concerted activity.

• Employee terminated based on a Facebook conversation with a relative complaining about not getting a raise and working without tips. He did not discuss the posting with his co-workers and none of them responded, so not concerted activity.

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Company Policies


Use of Social Networking Sites in the Employment Context:

• Best Practices and Policies

– It is important for companies to integrate social media policies into

the workplace.

– Policies are important to communicate to employees the

expectations the company has in use of social media, and parameters

for usage.

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• Employers need a written policy that governs the use of and access to the company’s computer system, including electronic communication devices

• The policy should identify WHAT EQUIPMENT IS COVERED, including

• Company computer system (hardware and software) and all company issued electronic devices, including servers, backup devices, PCs, laptops, cell phones, PDAs, pagers, text messaging devices

Lessons Learned – Terms


– Policy should identify WHO IS COVERED

• All users of system--any exceptions?

– Policy should identify the LEGITIMATE INTERESTS advanced

– Employee productivity

– Protect confidentiality

– Protect image and intellectual property rights (logo, copyrighted material, etc.)

Lessons Learned – Policy Terms


– The policy should identify WHAT CONDUCT IS PERMITTED

• Identify “acceptable use” of covered systems and devices

• Clarify Personal use vs. Business use

• Consider corporate culture and other business factors

• Make choice then ensure workers know what, if any, personal use is permitted under policy



• IDENTIFY PROHIBITED USES of the covered system and devices

– No disclosure of trade secrets.

– No harassment/discriminatory statements or sexual innuendo about co-workers.

– No violation of any other company policies.



– Policy should clearly express that there is NO PRIVACY when using any part of the computer system

– Personal communications to third parties are no exception to the “no privacy” rule

– Consider prohibiting (and blocking) employee access to personal e-mail accounts from company equipment



• Reserve the RIGHT TO INSPECT EQUIPMENT AND DEVICES used at or to do work

• Reserve the RIGHT TO MONITOR AND REVEW CONTENT of e-communications sent or received on or through company system or devices, as well as internet use



• The policy should notify employees that ANY VIOLATION WILL RESULT IN DISCIPLINE, up to and including termination

Learned – Policy Terms


• NLRA Considerations in policy language

• NLRB has been challenging employer policies it

considers to be overly broad, in that they restrict

employees from making any “negative” or “disparaging”

statements about employer or terms and conditions of employment.

Developing Appropriate Policies

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Examples Of Policies The NLRB Has Found Violate §7

• Policy prohibiting the release of confidential guest, team member or company information.

• Policy stating that employees should never share confidential information with another team member unless they have a need to know the information to do their job.

• Unlawful because it could be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves.

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• Prohibiting employees from using any social media that may violate, compromise or disregard the rights and reasonable expectations as to privacy or confidential information for any person or entity.

• Prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or its officers, directors and employees.

• Prohibiting statements that lack truth or might damage the reputation or good will of the employer, its officers, directors and employees.

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• Prohibiting employees from posting about company business on their personal accounts, anything they wouldn’t want their supervisor to see, anything that may jeopardize their job, disclosing sensitive or inappropriate information about the company, posting pictures about the company and its employees that could be construed as inappropriate.

• Precluding the disclosure of personal information regarding co-workers, clients or the company.

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Developing Appropriate Policies (Continued)

• Be careful when using the following terms in your policy:

– Disparaging comments

– Disrespectful conduct

– Unprofessional communication

– Negative conversations

– Offensive communication

– Statements that damage the company

– Objectionable comments

– Inflammatory communication

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Examples Of Policies The NLRB Has Found Do Not Violate §7

• Carefully read these guidelines, the company’s Statement of Ethics Policy, the company’s Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

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• Prohibiting posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

• Prohibiting use of company email addresses to register on social networks, blogs or other online tools utilized for personal use.

• Informing associates that they should not speak to the media on the company’s behalf without contacting the Corporate Affairs Department.

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• 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.

• Do not create a link from your blog, website or other social networking site to the Employer’s website without identifying yourself as an employee.

• Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.

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• Maintain the confidentiality of the company’s trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.

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Implement the Social Media Policy

• Distribute policy to all employees

• Educate employees on why policy is important

• Train employees on rules of social media use

• Periodically update related policies

• Periodically review privacy settings and policies

• Be vigilant and proactive


Conclusion

Questions?

Thoughts?

Napping?

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Need Help? Contact Us ! • .

Copies of the presentation [email protected] 888-335-9545 (Option 8)

Jessica DeBono Anderson

Attorney At Law

(407) 246-8458

[email protected]

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mailto:[email protected]

Upcoming AlphaStaff Webinar

Please mark your calendars !!!

Date: September 19, 2013 2:00 pm

Topic: Navigating the ‘Bermuda Triangle’ of

FMLA, ADA, & Worker's Compensation


Thank you for your participation!

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Social media in the workplace

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Transcript of Social media in the workplace