- 1. Presented by: D. Albert Brannen Phone: (404) 240-4235 Email:
dabrannen@laborlawyers.com SOCIAL MEDIA IN THE WORKPLACE THE
COLLISION OF MYSPACE, YOUR SPACEAND OUR SPACE
2. Explosion of Social Networking
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- More than 125 million users
Copyright 2011All rights Reserved 3. Explosion of Social
Networking
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- Largest social networking site
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- More than 500 million users
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- Projected 2010 revenues to be $710 Millionup 40% over 2008
Copyright 2011All rights Reserved 4. Explosion of Social
Networking
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- More than 80 million users
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- Projected 2010 revenues to be $110 M
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- Average user is 41, with annual income of $110,000
Copyright 2011 All rights Reserved 5. Explosion of Social
Networking
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- More than 18 million users
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- Projected to grow to 25 million users in 2010
Copyright 2011 All rights Reserved 6. Explosion of Social
Networking
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- Windows Live Spaces120 million
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http://en.wikipedia.org/wiki/List_of_social_networking_websites
Copyright 2011 All rights Reserved 7. Explosion of Social
Networking Copyright 2011 All rights Reserved 8. Interesting
Statistics Relating To Employment
- 42% of companies say layoffs have increased data leakage
- 34% of companies were harmed by sensitive info release
- 31% of companies terminated someone for e-mail violations
- 24% of companies say e-mail subpoenaed
- 8% terminated someone for use of social networking sites
- Proofpoints 2009 Study on Outbound e-mail and Data Loss
Prevention
Copyright 2011 All rights Reserved 9. Employment Screening
Tool?
- According to Career Builder.com survey, nearly half (45%) of US
employers report using social networking sites to dig up
information about job candidates
Copyright 2011 All rights Reserved 10. Conflict in the
Workplace
- 60% of employees believe their online activities are none of
their employers business
- 50% of employers believe they have a right to monitor social
networking sites
Copyright 2011 All rights Reserved 11. Conflict in the
Workplace
- 75% of employees say their employer doesnt have a social
networking policy
- But, 50% of employers report they have a social networking
policy
Copyright 2011 All rights Reserved 12. A New Vocabulary
- Driving while intexticated
Copyright 2011 All rights Reserved 13. Copyright 2011All rights
Reserved A Few Horror Stories: How Employees Caused Themselves
Problems At Work 14. A Family Emergency
http://www.switched.com/2007/11/13/lying-male-intern-busted-in-a-dress-on-facebook
Copyright 2011 All rights Reserved Kevin called in and reported
that he would miss work due to a family emergency.A few days later,
he posts his picture from a Halloween party. 15. Drunken Pirate
Teacher
http://seattletimes.nwsource.com/html/nationworld/2003685221_webmyspacesuit28.html
Copyright 2011 All rights Reserved 16. Runnin Down the Boss
Philadelphia Eagles staffer Dan was fired after remarking on his
Facebook page about the firing of star safety Brian Dawkins: Dan is
[expletive] devastated about Dawkins signing with Denver. . . Dam
Eagles R Retarded!!
http://pacdudegames.com/blog/dan-leone-the-philadelphia-eagles-and-the-art-of-tact/
Copyright 2011 All rights Reserved 17. Pittsburgh Pirate Mascot
Outta Here!
- Andrew, one of 18 men who take turns posing as pierogies in a
race after the fifth inning of every home game, was dismissed by
the team because he posted disparaging remarks about the Pirates on
his Facebook page .
Copyright 2011 All rights Reserved 18. How to Lose A New Job
http://bhc3.wordpress.com/2009/03/17/how-to-tweet-your-way-out-of-a-job
/ Copyright 2011 All rights Reserved 19. Copyright 2011 All rights
Reserved A Few Horror Stories: How Employees Caused ThemselvesOther
Problems 20.
- Joshua was sentenced to 2 years in prison for seriously
injuring a young woman in a drunk driving incident.The proof?
Pictures showing Lipton at a party dressed in a jailbird costume 3
weeks after the crash.Someone posted them on Facebook, and that
offered evidence for the prosecutor handling hisdrunk-driving
case.
Jailbird Joshua Lipton Copyright 2011 All rights Reserved 21.
Lara Pays The Price
- Lara caused the death of her best friend in a drunk driving
accident.The judge saw photos of her drinking.She got 2 years in
jail.
Copyright 2011 All rights Reserved 22. Copyright 2011 All rights
Reserved A Few Horror Stories: How Employees Caused TheirEmployers
Other Problems 23.
- Two employees in Conover, NC filmed themselves doing disgusting
things to food that they claimed was going out to customers and
posted it on YouTube. The 2 employees were identified, fired and
arrested.
Public Relations Nightmares Copyright 2011All rights Reserved
24. Public Relations Nightmares
- An employee took a bath in the burger chain's sink.Someone
filmed it and posted the video to MySpace. Local Health Department
authorities were not amused.
Copyright 2011 All rights Reserved 25. Using The Internet Can Be
Risky
- It can directly violate state and federal laws
- It can be evidence of other violations
Copyright 2011 All rights Reserved 26. Using The Internet Can Be
Risky
- State and federal computer crimes laws
- Common law invasion of privacy (or other torts)
- Fair Credit Reporting Act
- Stored Communications Act
- Title VII and other discrimination laws
Copyright 2011 All rights Reserved 27. Computer Crimes
- The Fulton County Schools Policy says:
Copyright 2011 All rights Reserved Failure to follow these
guidelines can violate the Official Code of Georgia, OCGA, Codes
16-9-90, 16-9-91, 16-9-92, and 16-9-93, as well as United States
Public Law 106-554, known as the Children's Internet Protection
Act. Such actions can also lead to disciplinary actions, up to and
including termination of employment or contract with FCS and
criminal prosecution. 28. State Privacy-Related Tort Claims
- Key to tort expectation is proof of expectation of privacy
- Establishment of a policy regarding use of company-owned
devices is critical
Copyright 2011All rights Reserved 29. State Privacy-Related Tort
Claims
- State laws may require notice of monitoring
- Tort action for violation of privacy rights
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- Intrusion into privacy of another
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- Appropriation of ones name orlikeness
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- Wrongful publication of private facts
Copyright 2011All rights Reserved 30.
- Employees set up password-protected blog to complain about
management.It contained confidential information.
- Employer asked employee with access to give up her
password.
- Management took action against employees based on the blog
content and employees sued.
- Pietrylo, et al. v. Hillstone Restaurant Group d/b/a
Houstons
Privacy Violations Copyright 2011 All rights Reserved 31. Stored
Communications Act
- Federal statute that prohibits intentional, unauthorized access
to private electronic communications such as Facebook or
Hotmail
- Creates privacy expectation in private electronic
communications
Copyright 2011All rights Reserved 32. Stored Communications
Act
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- Employer logged into Hotmail account employee had used during
work hours and on work computer
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- Employee left username and password filed on computer
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- Court found violation of SCA
Copyright 2011All rights Reserved 33. Wiretap Act
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- Felony punishable by fine and/or imprisonment
Copyright 2011All rights Reserved 34. Evidence In A Title VII
Case
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- Whats wrong with women these days?
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- Chicks seem to have more issues these days than Jet Magazine
and keep up more drama than daytime TV and JerrySpringer
combined.
- Plaintiff used comments to show discriminatory animus
- Derrick v. Met. Govt. of Nashville & Davidson
Copyright 2011All rights Reserved 35. Possible Title VII
Violations Race Marital Status Religion Political Views Copyright
2011 All rights Reserved 36. Other Forms of Discrimination Age
Familial Responsibility Sexual Orientation Copyright 2011 All
rights Reserved 37. GINA
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- Final regulations specifically prohibit systematic internet
searches that might acquire genetic info
- Derrick v. Met. Govt. of Nashville & Davidson
Copyright 2011 All rights Reserved 38.
- Discipline may be inappropriate if employees are engaging in
protected activity, such as
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- Sharing information about their pay
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- Complaining about employer policies or managers
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- Displaying union-related insignias/logos
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- Expressing support for a union
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- Attempting to organize a union
NLRA Protects Employees Engaged InProtected Concerted Activities
Copyright 2011 All rights Reserved 39.
- An unfair labor practice was filed against a bus company
alleging the company maintained and enforced an overbroad
communication policy.
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- Confidentiality provision
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- Prohibition on disruption of workplace
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- Prohibition on making demeaning/derogatory statements about
company, employees, or customers
NLRBs Protections Student Transportation Of America Copyright
2011 All rights Reserved 40.
- NRLB Advice Memorandum of December 4, 2009:Sears Holdings
- Carefully drafted social media policy does not violate
employees rights(under the National Labor Relations Act)
NLRBs 2009 Stance On Employers Social Media Policies Copyright
2011 All rights Reserved 41.
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- An employee was fired for:
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- Calling her boss a scumbag and
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- Writing love how the Company allows a 17 year old to be a
supervisor
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- NLRB issued a complaint on October 27,2010
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- American Medical Response of Connecticut
NLRBs Current Stance On Employers Social Media Policies
Copyright 2011 All rights Reserved 42.
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- Revise its Internet policy to allow employees to discuss wages,
hours and working conditions
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- Not discipline employees for engaging in such discussions
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- American Medical Response of Connecticut(October 27, 2010)
NLRBs Current Stance On Employers Social Media Policies
Copyright 2011 All rights Reserved 43. Copyright 2011 All rights
Reserved
- Requires employer to revise:
- Blogging & Internet Posting Policy
- Standards of Conduct rules
- Solicitation and Distribution Policy
44.
- May be expanded by the current Labor Board
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- Using the employers e-mail system
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- Asking for a witness in investigatory interviews
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- Attempts to get customer support of employee causes
NLRB Protections For Employees Copyright 2011All rights Reserved
45.
- Freedom of speech, limited to matters of public concern
- Right to be free from unlawful search and seizure
- Property rights in their jobs
- Georgia Fair Dismissal Act
Special Rules Apply To Public Employers Copyright 2011 All
rights Reserved 46. Ashley Payne From Barrow County
http://www.youtube.com/watch?v=4DDPeHxVaos Copyright 2011 All
rights Reserved 47. Unions Are Using Social Media Copyright 2011
All rights Reserved 48. Unions Are Using Social Media Copyright
2011 All rights Reserved 49. Unions Are Using Social Media
Copyright 2011 All rights Reserved 50. Practical Guidelines
- Many different laws apply
- Be real: expect employees to use these sites
- Beware what you learn: ignorance can be helpful
- Limit searches to professional sites
- Train your legal representatives
- Monitor the web about your company
Copyright 2011 All rights Reserved 51. Policy on Social
Networking Sites
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- online sites are in the public domain
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- off-duty actions can result in discharge
- Require compliance with existing policies
- Prohibit defamation and fraud
- Prohibit references to customers
- Ban use of protected logos or trademarks
- Require employees to use disclaimers
Copyright 2011 All rights Reserved 52. Other Related
Policies
- Electronic Communications
- Confidential Information & Trade Secrets
- Use of Blackberries or PDAs
Copyright 2011 All rights Reserved 53. Tips For Managers
- Dont become friends with employees
- Dont reveal anything you wouldnt say or post in public
- Dont engage in fraud (fake friend requests or passwords)
- Use privacy controls to manage flow of information
- Read what you sign in those disclaimers
Copyright 2011 All rights Reserved 54. Follow New
Developments
- Ontario, Cal. V. Quon, June 17, 2010
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- U.S. Supreme Court gives public employers the right to search
an employees text messages for reasonable cause.
Copyright 2011 All rights Reserved 55. Whats Coca-Cola Doing?
Copyright 2011 All rights Reserved 56. Final Questions? D. Albert
Brannen Phone: (404) 240-4235 Email: dabrannen@laborlawyers.com
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