Where Do We Go From Here? – Social Media Guidance for Employers ISC SHRM Conference August 22,...

Where Do We Go From Here? – Social Media

Guidance for Employers

ISC SHRM ConferenceAugust 22, 2011

Lisa R. Callaway, JD, SPHRThe Management Association of

Illinois

© 2011 The Management Association of Illinois

Overview

• Business concerns• Legal issues• Privacy/monitoring issues• Protected concerted activity• Policy recommendations



Business Concerns

Why are employers so worried?

• Negative publicity• Loss of control• Productivity• Paranoia?


Legal Issues


• Trademark and copyright infringement

• Protecting trade secrets• Harassment claims• Defamation issues


Legal Issues


• Illegal activity• First Amendment issues

(public sector employers)

© © 2011 The Management Association of Illinoise

What employees do when we’re not watching…

http://youtu.be/CvVp7b5gzqU

A Comcast technician came to replace a faulty modem. After spending an hour on hold with Comcast's central office, he fell asleep on my couch.


Privacy and Monitoring

Competing InterestsEmployer’s need/right to monitor

the workplace and employee activity while on the job

vsEmployees’ expectations of

privacy



• The conflict between work and private life– Culprits –

Demise of lifetime jobs Increase in females in the

workplace 24/7 technology



• Crucial Questions1. Does the employee have a

reasonable expectation of privacy?

2. Is the employee engaged in protected concerted activity?


Electronic Monitoring

• Electronic Communications Protection Act (ECPA)– Title I (the Wiretap Act) – prohibits

employer from intercepting wire, oral or electronic communication Exceptions:

1. One party consents2. If conducted in the ordinary course

of business; if employer intercepts and finds call is private, employer must end surveillance


Electronic Monitoring

• Electronic Communications Protection Act (ECPA)- Title II (the Stored Communications

Act) – prohibits employer from accessing communications stored by communication services Exceptions:

1. Employer provides the communication service

2. User of service authorizes the access


Electronic Monitoring - Illinois

• Illinois Eavesdropping Statute– Electronic communication = any transfer of

writing, images, sounds transmitted where the sending and receiving parties intend the communication to be private and the interception is accomplished secretly Exceptions:

1. unless interpreter does so with the consent of all parties to the communication

2. conducted by business entity engaged in marketing or opinion research or in phone solicitation© 2011 The Management Association of Illinois

What employees do when we’re not watching…

http://youtu.be/-X0jjdzWXGA

My Boss is Evil


Monitoring – Case Study 1

• Employee sends sexually-explicit text messages

• Employer-issued pager• Employer discovers messages

when device is searched• Employee disciplined

Was the employer’s search legal?


Protected Concerted Activity

• Employees have the right to engage in concerted activities for the purpose of mutual aid or protection Section 7 of the National Labor Relations Act

• What does this have to do with social media? Quite a lot!

• We don’t have a union. So what!


PCA – The Current View

• “In 2007, one cannot reasonably contend … that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” NLRB Board Member Wilma Liebman (now chair)

• “Overly broad rules” improperly restrict employees from discussing wages, hours and working conditions.” 2011 NLRB


Protected Concerted Activity – Case Study 2

• Employee, working for ambulance company, was asked to complete an incident report re: a situation that led to customer complaint

• Employee asked for union rep; company denied• In off hours, employee posted on Facebook that

supervisor was a “scumbag” and a “psychiatric patient.”

• Other employees commented on employee’s post

• Employee was terminated 3 weeks later

Did the employee’s Facebook comments constitute protected concerted activity?



• Reporter posts tweets on Twitter account– “The Arizona Daily Star’s copy editors are

the most witty and creative people in the world. Or at least they think they are.”

– “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”

– “Suggestion for new Tucson-area theme song: Droening (sic) pool’s ‘let the bodies hit the floor.’”



- In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”

• Account operated and controlled by employee

• Account identified employee as reporter for local paper

• Employee fired

Did the employee’s tweets constitute protected concerted activity?



• Car salesman and coworkers were unhappy with quality of food/beverages at a dealership promotional event

• Salesmen complained that sales commissions would suffer as a result

• After event, salesman posted photos and commentary on personal Facebook page critical of event

• Other employees had access to page



• Following week, employer asked employee to remove posts – he complied

• Employee fired

Did the employee’s Facebook comments constitute protected concerted activity?


Policy Recommendations

• Have a policy – Clear guidelines– Advise employees they have “no

expectation of privacy or confidentiality when using” employer-issued technology (Quon)

– Do not attempt to overreach in policy – use legally-acceptable jargon (AMR)

• Widely distribute (and frequently review) policy


Policy Recommendations

• Employer-conducted searches should have legitimate business justification (and limit to work-related issues)

• Train supervisors (on policy and acceptable conduct)

• Supervisors must understand the law of protected concerted activity (notwithstanding union status)

• Ensure discipline is even-handed• Employment at will has limited

application


Advice to Supervisors

• Use discretion in making/responding to “friend” requests

• Understand organization’s policies

• Behave! Employees mimic what they see.


Advice to Employees

• Be familiar with organization’s policies on e-mail, Internet and business systems and social media usage

• Limit access to personal e-mail accounts during working time and when using employer’s equipment

• Remember you have a work life when posting on social media sites


Questions?

The Management Association of Illinois1400 Opus Place, Suite 500Downers Grove, IL 60515

800.448.4584www.hrsource.org


Where Do We Go From Here? – Social Media Guidance for Employers ISC SHRM Conference August 22,...

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