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Agenda
• Recent developments in state legislation on employer access to employee and applicant social media information
• Recent decisions from the NLRB and EEOC on permissible employee social media use and employer social media policies
• Recent judicial decisions regarding liability issues affecting employers for employees’ social media use and employer use of emerging technologies
• You be the Judge of various issues arising out of employee and employer use of social media in the workplace
TOTAL POPULATION
7.395 BILLION
ACTIVE INTERNET USERS
3.419 BILLION
ACTIVE SOCIAL MEDIA ACCOUNTS
2.205 BILLION
UNIQUE MOBILE USERS
3.790 BILLION
ACTIVE MOBILE SOCIAL ACCOUNTS
1.968 BILLION
Social Media By the Numbers
MOBILE SOCIAL MEDIA FACTS
The mobile phone has made the web accessible for almost everyone. • 1.97 billion active mobile social accounts globally.
• 689 million active mobile social accounts in Southeast Asia.
• 39% of global web traffic is generated through mobile devices.
• 82% of web traffic in Nigeria is generated through mobile devices; compared to 66% in India, 36% in Japan, 28% in the UK and US respectively, and 12% in Russia.
Social Media By the Numbers
1.4 billion users
47% of all Internet users
Uploads of user videos to Facebook now exceed YouTube
Interact with celebrities, brands, executives and more
320 million active users, 80% on mobile
303 million tweets per day (down from 500 million in 2014)
400 million users (up 25% since 2014)
70 million photos and videos sent daily
53% of internet users aged 18-29 use Instagram
100 million users are on Pinterest (up 40% from the previous year)
85% of users on Pinterest are female
88% purchase a product they pinned
414 million registered members
Revenue at end of 2015: $862 million (increased 34% on the previous period)
40 million+ students and recent college graduates on LinkedIn
Employment Issues and Social Media
• Social media concerns will vary from workplace to workplace based on age and demographics of your workforce.
• Liability concerns depending on how social media is used and monitored
• Mobile devices allow easy access to social media while at work
• Employees blur work and private content
• Postings can be spontaneous and tough to retract
• Social media can consume work time
Legislative Update
State Legislation
• Probably not. At least 22 states have existing laws prohibiting employers from requiring employees/applicants to disclose social media usernames/passwords or otherwise provide access to social media accounts
• Trend favors protection. Nine states enacted protective legislation in 2015.
• In at least 14 states legislation has been introduced or is pending to protect employee social media passwords.
Are private employers permitted to force employees to provide access to private
social media sites?
State Legislation: Mandatory Friending
The recent trend is that states are enacting laws prohibiting required friending or connections.
However, most laws are allowing supervisors to send voluntary, un- coercive requests.
Are private employers permitted to require that
employees “friend” them?
State Legislation: Employee Misconduct Investigations
Are there exceptions to the new social media privacy laws to permit
investigation into employee misconduct?
Probably yes. Among the states that have enacted social media privacy laws, most contain exceptions to allow an employer to investigate work-related policy violations.
Administrative Enforcement
Who Is Affected?
Who is subject to the NLRA/NLRB?
• Section 7: Employees may discuss wages and other terms of employment and may take “concerted” action in an effort to improve their working conditions.
• “Concerted activity”: when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.
$
Whole Foods Market, Inc. (01-CA-096965, 13-CA-103533, and 13-CA-103615; 363 NLRB No. 87) Cheshire, CT and Chicago, IL, December 24, 2015.
• Board panel reversed ALJ, ruling that company policy of prohibiting employees from recording in the workplace without prior management approval did violate Section 8(a)(1)
• “Our case law is replete with examples where photography or recording, often covert, was an essential element in vindicating the underlying Section 7 right.”
• The policy at issue prohibited all work-place recording, regardless of whether the activity being recording constituted protected concerted activity.
• Dissent would remove from protection videos recorded for “the purpose of posting the recording on social media to entertain one’s Facebook “friends””
Pier Sixty, LLC (02-CA-068612 and 02-CA-070797; 362 NLRB No. 59) New York, NY, March 31, 2015.
• Board adopted the ALJ’s findings that the employer violated Sections 8(a)(3) and (1) by discharging an employee because of “protected, concerted comments made in a posting on social media”
• In March employees presented a petition concerning ongoing complaints about management mistreatment. Employees’ concerns resulted in a union organizing campaign, cumulating in an October election.
• Two days before the union election, a disgruntled employee posted the following on his personal facebook page about a supervisor:
− “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F**k his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
• The employee removed the post the day after the election.
• Board ruled the comments were not so egregious as to exceed protection.
Chipotle Servs. LLC, N.L.R.B. Case No. 04-CA-147314 (Decided Mar. 14, 2016).
• James Kennedy, a Chipotle employee took to twitter to discuss various employment-related grievances. One of his tweets addressed Chris Arnold, Chipotle’s communications director regarding working conditions. No other Chipotle employees commented or “favorited” any of Kennedy’s tweets. However, several Chipotle customers responded. In response to a customer tweeting “Free Chipotle is the best, thanks,” Kennedy tweeted back:
“nothing is free, only cheap #labor.” • Chipotle’s regional director was made aware of the tweets and asked Kennedy to delete
them. (ALJ) determined Chipotle violated the NLRA by asking Kennedy to delete the tweets and stop tweeting: the tweets constituted “concerted activity” even though no other Chipotle employee reacted to the tweet. The ALJ explained ‘[i]t is not necessary that two or more individuals act together in order for the activity to be concerted” because concerted activity includes “individual activity where ‘individual employees seek to initiate… group action, as well as individual employees bringing truly group complaints to the attention of management.” The ALJ reasoned the tweets addressed group concerns, were “visible to others,” and “had the purpose of educating the public and creating sympathy and support for hourly workers in in general and Chipotle’s workers in specific.”
“Liability Concerns in Hiring: EEO(C) Concerns?”
• Studies have shown that minorities may be underrepresented on social media. Therefore, employers using social media to establish an applicant pool may unknowingly be creating a disparate impact problem.
• Best practices would be to advertise job openings through multiple channels using a variety of different sources including employee referral programs.
• Employers should consider limiting the use of social media in hiring until after the candidates’ interviews, using social media to conduct a more targeted search.
• Focus on systemic discrimination
• Focus on class actions based on “facially discriminatory” employment policies
• Hot Topic: Gender Identity and Transgender Discrimination
• Sexual Orientation Discrimination & Title VII
EEOC Pursuit of Discrimination Cases: Will use Social Media as Evidence
EEOC Pursuit of Discrimination Cases
I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender
identity, including transgender status.
Previous U.S. Attorney General Eric Holder (December 2014 Memorandum)
Focus on Gender Identity and Transgender Discrimination: Will use Social Media to Combat Discrimination
Mini Case Law Update
DISCOVERY: Crowe v. Marquette Transportation Company Gulf-Inland, LLC (E.D. La. Jan. 2015)
• In written discovery, defendant sought a complete copy of the Plaintiff’s Facebook history, to which plaintiff responded he did not have a Facebook account.
• Plaintiff later testified in a deposition he once had a Facebook account. Plaintiff had in fact deactivated, not deleted his account. Defendants presented a Facebook message appearing to be sent from Plaintiff’s account. Message suggested the plaintiff was injured fishing, rather than on defendant employer’s vessel.
• Through a discovery dispute, Plaintiff’s counsel produced over 4,000 pages of Facebook history from Plaintiff’s account (which Plaintiff claimed was hacked).
• Ruling: Plaintiff’s possession of 4,000 pages of Facebook history must all be produced.
DISCRIMINATION: Dr. Leslie Hannah v. Northeastern State Univ. et al., (E.D. Ok. Feb. 5, 2015)
• Comments lamenting that a “f*cking indian” was made department chair and other racist Facebook posts by two professors who were allowed to vote on an employee’s tenure (which was denied)
• Employee filed Title VII claims, among others, for improper denial of tenure
• Federal court denied defendants’ MSJ, based in part on the facebook posts and the plaintiffs’ prior reporting of such posts. The posters should not have played any part in the tenure decision: “Had Dr. Cowlishaw and Dr. Shelton been removed from the tenure application process, this would be a different case. Defendants would be entitled to summary judgment.”
CLASS ACTION NOTICE: Mark v. Gawker Media LLC, 2014 U.S. Dist. LEXIS 155424 (Nov. 3, 2014 S.D.N.Y.).
• SDNY approved use of social media as a mechanism to notify potential class members in a wage and hour dispute.
• Plaintiffs took the order and ran with it, proposing use of Twitter, LinkedIn, Reddit, Facebook, and Tumblr.
• Court imposed some limitations on use of social media: – Plaintiffs must "unfollow" potential plaintiffs on Twitter when the opt-in period closes unless the
individual has chosen to opt-in
– Plaintiffs cannot "friend" individuals on Facebook, as it could create a misleading impression of the individual's relationship with Plaintiff’s counsel
Round-Up On Employer Social Media Policies & Practices
ROUND UP: Employee Policies and Handbooks
• Employers violate section 8 of the NLRA by maintaining a work rule that “would reasonably tend to chill employees in the exercise of their section 7 rights.”
• The following rule has repeatedly been held to violate the NLRA: “Employees are prohibited from making disparaging comments about the company through any media, including social media, online blogs, websites, or through the media.”
• Employers should review their handbooks and policies to determine that their polices are not overbroad in violation of the NLRA.
• Review NLRB Social Media Guidelines (NLRB website)
Review Your Policies - Social Media Policies Should Still Reinforce Workplace Rules
• Internet use on company devices/networks is subject to monitoring
• Confidentiality and non-disclosure requirements apply
• Harassment and discrimination policies apply
• No employees may speak as company representatives without authorization
Employee Tips for Email and Social Media
Don’t assume “private” communications/postings will stay private
Do understand that email/social media can create a permanent record and can get circulated beyond the intended audience
Don’t assume that you cannot face consequences at work for “personal” communications/postings
Don’t assume that a private-sector employer can take any action it wants in response to an employee’s “personal” communications/postings
Do consult OA/HR and/or Legal when in doubt
Social Media Complaints – Open Door Policy
• Most social media complaints come from friends of the offender.
• When an employee comes to you with a concern, listen and respond appropriately.
• Have more than one avenue to air a concern.
“Liability Concerns in Hiring: Can an Employer Access Employee Social Media?”
Is the information already public?
Are there any reasonable
expectations of privacy?
“Liability Concerns in Hiring: Is too much information TOO much?
• Social media provides employers with information of protected characteristics such as race and gender.
• Social media may also reveal protected characteristics that may not be apparent during a job interview, such a religion, age, disability, or sexual orientation.
• Employers using social media should be able to point bona fide job-related reasons for choosing over another.
Discipline and Employee Complaints
Questions to Consider Before Disciplining Employees
If answer is yes to any of the above, seek guidance before disciplining employee
Was the post in follow-up to
something that happened to a group at work?
Is the post about workplace
conditions?
Did co-workers respond to the
posting?
You Be the Judge: Big Data Use
Employer company has hired an outside firm to mine its employees’ big data, using things like an employee’s age, search history, and whether she’s stopped filling birth control prescriptions to determine which employees are pregnant Legal issues with the employer’s conduct?
You be the judge: Big Data Use
Technically nothing unlawful about use of big data to obtain information on employees, BUT … Courts may infer discriminatory intent if employer takes adverse action against employees based on big data information – could be basis for disparate impact claims.
You be the Judge: Rogue Employee
• Company logo in background • Violation of social media policy? • Out-of-workplace posting – employer issue
You be the Judge: Free the Nipples Post
• Harassment • Gender discrimination • Gender identity discrimination • Out-of-workplace posting – employer issue • NLRB protections
How many issues with this post?
Final Thoughts
Takeaways: • Know your organization’s social media policies
and encourage all employees to review them – follow the policies
• Be attuned to possible discrimination, harassment, and privacy issues
• Prior to taking any adverse employment action, consider whether the employee(s) have engaged in protected concerted activity
• Also consider whether conduct has happened in this past – be consistent
• Also consider whether an employee’s social media activity is so egregious that it makes the employee unfit to continue working
• Use common sense
Questions
