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PLI Social Media 2015: Addressing Corporate Risks

Social Media in the Workplace:

Emerging Issues

February 2015 Presented By

Christine Lyon

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Why Do Employers Care About Personal Social

Media Activity?

• Vetting of job applicants

• Preventing leakage of confidential information

• Investigating potential misconduct

• Protecting and enhancing the company’s brand and

reputation

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When Can Employers Access Personal

Accounts?

Restrictions under federal and state laws and common law:

• Stored Communication Act

• Computer Fraud and Abuse Act

• State social media laws

• Common-law privacy theories

And similar restrictions in accessing content on personally-owned

devices (BYOD)

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State Social Media Laws

• Increasing trend by state legislators to limit ability of employers to

access personal social media

• 16+ states with some legislation in place

• 28+ with legislation pending

• Laws generally restrict employers’ ability to ask employees to:

• provide the employee’s user name or password to social media accounts

• “friend” a supervisor or employer representative

• inspect the personal social media in the employee’s presence

• change his or her privacy settings on social media

• Some (but not all) of these laws provide limited exceptions for

workplace misconduct investigations—exceptions often very narrow

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Social Media in Recruitment

• Purchasing background reports about candidates’ social media

activity?

• Remember the Fair Credit Reporting Act and state consumer

reporting laws

• FTC: online services that create reports based on publicly-

available social media may be subject to FCRA

• Reasonable expectation of privacy analysis

• Consider having social media checks performed by trained HR

personnel not involved in hiring decision

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When Can Employers Take Action Based on

Personal Social Media Activity?

• Even if an employer lawfully reviews an employee’s

personal social media content, the employer’s ability to

use that information may be limited by:

• Federal and state anti-discrimination laws

• Labor and employment laws protecting off-duty conduct

• Also restrictions on an employer’s ability to exercise

control over employee’s personal social media activity

• Social media policies cannot infringe on legally protected speech

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Social Media May Reveal More Than You Want

to Know

• Social media may reveal information the employer cannot lawfully

consider in making employment decisions, such as:

health conditions or disability

race, religion, ethnic origin

union membership or political beliefs

sexual orientation

• Risks associated with social media use in recruitment:

Exposure to discrimination claims

Inability to take action based on information in background check

Reputational/brand damage in workplace and marketplace

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EEOC Public Meeting on Social Media and

Employment Discrimination

• In March 2014, the Equal Employment Opportunity Commission

conducted a public meeting (described as a “listening session”) on

employment discrimination risks related to social media

• Concerns were expressed about:

• Risks of unlawful discrimination based on information gleaned from

social media

• Potential disparate impact based on age or other protected

classifications, including if the hiring process favors people active on

social media

• Postings creating a hostile work environment, even if the postings are

after hours

• May signal increased scrutiny by EEOC

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National Labor Relations Act and Social

Media

• The NLRA protects employees’ rights to engage in “concerted

activities”

• Activities by employees united in pursuit of a common goal

• Applies equally to non-union employees and where no collective bargaining

activity is at issue

• National Labor Relations Board (NLRB) social media cases

• Cases challenging disciplinary action based on social media postings

• Cases challenging overly restrictive social media policies

• Fact-specific inquiry with few clear-cut rules

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Case Study: Hooters of Ontario Mills

• “Hooters Girl” fired after altercation with co-worker who allegedly

rigged the company bikini contest

• What does this have to do with social media?

• Nothing, really—except it opened door to scrutiny of employer social media policy

• Examples of provisions found unlawful:

• “Information published on your social networking sites should comply with the

company’s confidentiality and disclosure of proprietary information….”

• “Be respectful to the Company, other employees, customers, partners, and

competitors. Refrain from posting offensive language or pictures that can be

viewed by co-workers and clients. Refrain from posting negative comments about

Hooters or co-workers. In all cases, NEVER publish any information regarding a

co-worker or customer.”

• Moral of the story? Expect that any NLRA charge may trigger

scrutiny of your social media policy

• And remember, this was a non-unionized workplace

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Case Study: Triple Play Sports Bar & Grille

• Another NLRB charge against a non-unionized employer

• Restaurant employees terminated for participating in negative

comments on Facebook about employer messing up their tax

withholdings

• One employee fired for clicking “Like” to post saying that someone should do the

owners a favor and buy the place because they couldn’t even do the tax

paperwork properly

• Another employee fired for adding a comment that the accounting guy was an

“a**hole”

• Employer ordered to reinstate both employees and make them whole

for any loss of earnings and benefits

• Case also triggered review of employer’s social media policies,

finding various provisions unlawful

• Example: prohibiting employees from “engaging in inappropriate discussions

about the company, management, and/or coworkers”

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What Standards Can Employers Impose for

Personal Social Media Activity?

• Restrictions arise under the National Labor Relations Act—even for

non-unionized employers

• Federal and state laws protect certain types of lawful off-duty conduct

• Political activity

• Religious belief and activity

• Whistleblowing

• Other “lawful” off-duty conduct, in some states

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• The NLRB looks for overly broad provisions, particularly those

concerning:

• Confidential information

• Negative or disparaging comments about the company

• External communications, including contact with media

• The key issue is whether the provision may reasonably chill or deter

protected concerted activity

Common NLRB Challenges to Social Media

Policies

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NLRA: Confidentiality Provisions

NLRA issues

• Overly broad definitions of “confidential information” may chill

discussion of wages and working conditions

Recent examples of challenged provisions

• Prohibiting “disclosure of confidential information, including

Company, customer information and employee information

maintained in confidential personnel files” (Lily Transportation)

• “Information published on your social networking sites should

comply with the company’s confidentiality and disclosure of

proprietary information policies”—when these policies were found

impermissibly broad (Hooters of Ontario Mills)

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NLRA: Nondisparagement Provisions

NLRA issues (courtesy and civility rules)

• Restrictions on disparaging or inflammatory comments may chill

protected speech

Recent examples of challenged provisions

• Prohibition on “engaging in inappropriate discussions about the

company, management, and/or coworkers” (Triple D)

• “Refrain from posting negative comments about Hooters or co-

workers” (Hooters of Ontario Mills)

• “While online, do not engage in behavior that would be

inappropriate at work and that will reflect a negative or inaccurate

depiction of our company” (Kroger)

• Prohibition on “using personal computers in any manner that may

adversely affect company business interests or reputation”

(Professional Electrical Contractors)

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NLRA: Use of Company’s Name or Logo

NLRA issues

• May chill discussion of employer’s labor practices, working

conditions

• Existing NLRB authority recognizes employees’ rights to use

employer’s name and logo in protected activity

Recent example of challenged provision

• “[Y]ou must not use without permission or compromise in any way

the Company’s intellectual property assets…including, for example,

[employer] banner [or] logos” (Kroger)

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NLRA: Contact with Media

NLRA issues

• May chill public protest of wages, working conditions

• Pre-authorization requirement may have chilling effect as well

Recent examples of challenged provisions

• “Employees shall not discuss the Company’s business or legal

affairs with anyone outside of the Company. Information

concerning claims or lawsuits brought by the Company or against

the Company shall be treated as confidential. Employees shall not

discuss matters related in any way to litigation or claims.” (Hooters

of Ontario Mills)

• Employees “must follow the chain of command by reporting [any

complaint] to [list of supervisors] (in the order indicated)…” (U.S.

Security Associates)

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Requiring Disclaimers

• Employers encourage transparency in employee postings about

company products and services

• The FTC Guides Concerning Use of Endorsements and Testimonials require

disclosure of material connections between endorser and company (e.g.,

employment):

Sec. 255.5 Disclosure of Material Connections: “When there exists a

connection between endorser and seller of the advertised product which

might materially affect the weight or credibility of endorsement (i.e.,

connection is not reasonably expected by audience) such connection must be

fully disclosed.”

• However, NLRB has challenged broad disclaimer requirements

• Example of provision found unlawful:

• “If you identify yourself as an associate of the Company and publish any

work-related information online, you must use this disclaimer….” (Kroger)

• Issue involves the scope of the disclaimer requirement

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Ownership of Social Media Accounts

• Important unresolved issues about when employer or employee owns

individualized social media accounts used on employer’s behalf

• Best practices:

• Address ownership and rights to such accounts in a written agreement

• Employer should set up account, control passwords and access, and determine

the nature of the content

• Include the company name in the Twitter handle or account name, not just the

employee’s name

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What Standards Can Employers Impose for

Internal Social Media Platforms?

• Important new change in NLRB’s stance

• Prior standard under Register Guard: employer could prohibit all non-

work of company email systems

• New standard under Purple Communications: employees may have the

right to use an employer’s email system to engage in concerted activity

• May extend to other company-provided communications

systems…stay tuned

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Best Practices for Employee Social Media

Limit the inspection or use of personal social media in hiring or

employment decisions

Train HR and internal audit to understand legal restrictions on use of

personal social media in investigations

Develop social media guidelines for employees

Train employees about appropriate use of social media

Consult HR before taking action based on personal social media

activity