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Social Media Today! The Legal & Ethical Risks and
Requirements for Employers and Managers
Willow Misty ParksAnderson School of Management
University of New MexicoAlbuquerque, NM
© 2014 The Business Bookshelf, LLC & Willow Misty Parks
IMPORTANT NOTICE
• General Legal Information;NOT Legal Advice
• This presentation is NOT legal advice or legal representation.
• This presentation sets out general concepts and some of the basics regarding social networking.
• Anyone determining that they need legal advice or representation should seek counsel from an attorney or law firm.
Significance of Social Media to Business
• Important to businesses! • Violations of others’rights can be costly, even if done
by an employee of the company• What every employer and manager should know
– Understanding the basics
– Key challenges and risk factors for employers
– How to address potential abuse or misuse
– Prepare to design legal and effective Social Media Policies in the workplace
Significance of Social Media to Business
• A 2012 report by SilkRoad Technology revealed that 75 percent of employees access social media daily on the job, with 60 percent doing it multiple times per day.
• Almost half the respondents indicated that connecting with co-workers was the top reason to use social media at work.
• Only 23 percent of the employees, however, had received a social media policy from their employers, and fewer than 10 percent had received social media training.
Significance of Social Media to Business
• Social media in the workplace
• There are only 48.3% of companies that allow their employees access to social networking that doesn’t involve business.
• 26.7% of companies allow a selected group of employees to have access to social networking, and only a quarter of all companies ban social networking.
• Companies have implemented policies for the use of social networking. This is to keep employees from talking about company business. Some employees do not realize they say anything wrong when talking about their jobs online.
Current Issues
• Whether businesses block, monitor, or have policies on social media use in the workplace
• Some companies have blocked certain social media websites – 1. It could alienate younger employees.– 2. It suggests mistrust.– 3. It shows lack of support.
Current Issues
• Two main benefits of social media: enhanced communication and advanced methods of collaboration.
• Companies are taking into consideration implementing their own internal social media, such as Microsoft’s Share Point to encourage team collaboration.
• Some 46% of global information workers say using social tools has increased their productivity.
Current Issues
Why Your Company Needs a Social Media Policy
•67% of online adults are now using at least some form of social networking
What is “Social Media”?
• Social media is defined as: – …media for social interaction, using highly
accessible and scalable communication techniques.
– …the use of web-based and mobile technologies to turn communication into interactive dialogue.
What is “Social Media”?
• MySpace• Facebook• Friendster• LinkedIn• Twitter• Skype• Texting• WhatsApp
• Blogs• Digg, Reddit,
Technorati• YouTube• Unvarnished• Instant Messaging• Snapchat• Line
Social Media in the News
• Do Your Social Media Policies Run Afoul of the First Amendment?
• Social Media Sparks Policy Debate
• Employer Access to Social Media Usernames and Passwords
• Even if It Enrages Your Boss, Social Net Speech Is Protected
How Employees Use Social Media
• Job search
• Communication—with other employees, clients, vendors, customers
• Researching products, services, employers
• Spreading the word about a product or service
• Criticizing the job, the boss, or co-workers
Benefits to Business of Social Networking
• Building business relationships and rapport
• Employee engagement– Allow employees to communicate with
consumers over social networks– Internal social networks like Yammer can
help employees to communicate with each other
Benefits of Social Media
• Employees use social media as a way to relieve stress during a break and to rejuvenate, which increases productivity.
• Now employers are faced with new challenges regarding the laws and policies surrounding social media in the workplace.
• These issues seem to be unclear in many companies. Putting a policy into place to protect the employer as well as the employee is fundamental with the increasing changes in the workplace.
Social NOT-working?
• How many working hours are lost? 50% of Facebook users log on every day
• 22% visit social networking sites 5+ times/week
Only 52% of employees say they don’t use social networking sites during work hours
And that’s not counting time spent texting, instant messaging, surfing, making phone calls, etc. …
Beneficial or Social NOT-working?
• A recent study conducted by Evolv shows hourly employees who use social media are actually more productive than their non-social counterparts.
• And this productivity goes up with the more social networks an employee frequents.
Beneficial or Social NOT- working?
• A wholesale block of social media might actually be harmful to talent attraction
• A 2012 survey found two out of five Gen Y workers rate social media access above receiving a higher salary.
Employees’ Views of Social Media
• Survey says:
53% of employees say their social networking pages are none of their employers’ business
74% say it’s easy to damage a company’s reputation on social media
15% say that if their employer did something that they didn’t agree with, they would comment about it online
Online Outlets for Disgruntled Employees
www.workrant.com
www.fthisjob.com
www.rantasaurus-rex.com
Employers’ Views of Social Media
• 40% of business executives surveyed disagree that what employees put on their social networking pages is not the employer’s business
• 30% admit to informally monitoring social networking sites
Information That Can Be Found on Social Networking Sites
• Education• Hobbies• Vacation Photos• Birthdates and age• Religion• Links to profiles of
friends • Health and disability
history
• Work history• Favorite music • Party photos• Links to blogs• Career interests• Family information • Political views• Favorite movies
Social Media and Key Legal Risks for Employers
Negligent hiring/supervision
Discrimination/harassment/retaliation
Disclosure of trade secrets or proprietary information
Reputational harm to employees
Reputational harm to employers
Monitoring and privacy issues
Legal constraints on employee discipline regarding social media use
Risks for Employers
• Using the Web to Make Hiring Decisions – Many employers and job recruiters check out
potential employees on the Web• Using search engines such as Google or Yahoo, and
internet sites such as PeopleFinders.com, Local.Live.com, or Zillow.com
– Some studies show more than half of employers use some kind of screening on social networking sites
Risk Factor: Employee Use
Risk Factor: Discrimination, Harassment and Retaliation – Employee Use of Social Media
– Electronic communications offer opportunities for misuse
– Can be used as evidence to support a harassment or discrimination claim
Risk Factor: Negligent Hiring, Supervision, Retention
An employer may be held liable for an employee’s wrongful acts if the employer knew or had reason to know of the risk the employment created
•Doe v. XYC Corp., N.J. Super. 122 (2005)– Employee was criminally charged with child
pornography using a workplace computer– Court held employer had a duty to investigate and
respond
Risk Factor: Discrimination, Harassment, Retaliation – Employer Use of Social Media Info • Social networking sites, blogs, etc., may contain information about an
applicant’s– Age– Race– National origin– Disabilities– Sexual orientation– Religion, etc.
• Difficult to prove employer did not rely on this information once known
• Is it the truth?
– Information may be inaccurate or outdated
Risk Factor: Discrimination, Harassment and Retaliation – Employee Use of Social Media
• Electronic communications offer opportunities for misuse
• Can be used as evidence to support a harassment or discrimination claim
• Blakely v. Continental Airlines, Inc., 164 N.J. 38 (2000)
– Alleged harassment via “Crew Member Forum”
– Company has duty to take effective measure to stop the conduct once it knew or should have known harassment was taking place
Risk Factor: Reputational Harm to Employees
Defamation – plaintiff must prove defendant published a false statement about plaintiff that tends to harm plaintiff’s reputation
Employer can be liable if the employee had apparent authority to speak on its behalf – Beware of personal references!!
Risk Factor: Reputational Harm to Employers
• Employees posting videos and photographs damaging to company’s image– Domino’s, Burger King, KFC
• Former employee slamming company’s system with disparaging e-mails– 200,000 e-mails sent to 35,000 Intel employees complaining
about former employee’s treatment by Intel
• Former employees “cyber-smearing” employer– Result: $775,000 compensatory and punitive damages award
against former employees
Defamation v. Non-Disparagement
• Non-disparagement clauses are customarily used in settlement agreements and severance contracts in the employment law context.
• The temptation can be irresistible for disgruntled former employees to trash their former employer on social media sites like Facebook, Twitter, or LinkedIn, on blogs, by text or e-mail, or other electronic means.
Risk Factor: Reputational Harm to Employers
• FTC GUIDELINESGuides make clear that employees who use
social media to post comments regarding company products or services without disclosing the employment relationship might create liability for their employers.
Potential liability may exist even if the comments were not sponsored or authorized by the employer.
Risk Factor: Business Proprietary Information
• Intellectual Property Infringement Microsoft employee posted software upgrade
• Securities fraud/unfair competition Whole Foods CEO’s anonymous blogging criticizing
competitors led to unfair competition lawsuit and FTC/SEC investigation
Risk Factor: Employee Monitoring and Privacy
• Public sector employees – Fourth Amendment in the U.S. Constitution
• Private sector employees – tort claims
Risk Factor: Employee Monitoring and Privacy
• Key question: Did the employee have a reasonable expectation of privacy in the electronic communication?
• Ensure monitoring is:
• based on legitimate needs, and
• limited in scope to achieve those needs
• Attorney-Client Privileged Information
Risk Factor: Employee Monitoring and Privacy
Courts are more likely to rule for the employer if:
o Employer owns the computer and e-mail system
o Employee voluntarily uses an employer’s network
o Employee has consented to be monitored (usually based in written personnel policy)
Risk Factor: Employee Monitoring and Privacy
Currently unclear if an employee has a reasonable expectation of privacy in blogs or IMs
Courts have split on whether there is a reasonable expectation of privacy in content maintained on third-party servers (e.g., web-based e-mail accounts)
Risk Factor: Employee Monitoring and Privacy Issues
Risk Factor: Federal Wiretap Act
Prohibits “interception” of electronic communications
Question of who is an “authorized user?”
Risk Factor: Federal Stored Communications Act
Prevents employers from using illicit or coercive means to access employees’ private electronic communications
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Risk Factor: Legal Constraints on Employee Discipline
• National Labor Relations Act
Protected Concerted Activity
o Employees have a right to engage in "concerted activity“ for the purpose of collective bargaining or other mutual aid or protection
o Applies to both union and non-union employees
o What is “Protected Concerted Activity?”
o 1) whether the communication is related to an ongoing labor dispute
o (2) whether it is “so disloyal, reckless or maliciously untrue” as to lose the Act’s protection.
Risk Factor: Legal Constraints on Employee Discipline
National Labor Relations Act
Protected Concerted Activity
Register-Guard, 352 NLRB 1110 (2007) – that the employer discriminatorily applied its Communication Systems Policy (CSP) and violated Sections 8(a)(1) and (3) of the National Labor Relations Act when it disciplined an employee for using the company’s e-mail system to disseminate union-related solicitations because the employer permitted other employees to circulate personal solicitations
LESSON: Have a No Solicitation policy, and make sure it is applied across the board to all types of communications.
Risk Factor: Legal Constraints on Employee Discipline
NLRB
v.
American Medical Response of Connecticut (AMR)
Risk Factor: Legal Constraints on Employee Discipline
National Labor Relations Act
Unlawful Surveillance
o The Board compared an employer’s monitoring of employee social networks to eavesdropping on employees’ discussions with their union representative in a break room. In Magna Int’l, Inc., 2001 NLRB LEXIS 134 (March 9, 2001)
Risk Factor: Legal Constraints on Employee Discipline
Expression of political opinions
Legal off-duty activities
Wrongful termination in violation of public policy (arrests, convictions, bankruptcy, workers’ compensation history)
Whistleblowing (SOX, Wage & Hour)
RISK FACTOR: Do Not Request Passwords
• Multiple states have passed laws or are actively considering legislation limiting the rights of employers to request or require employees to provide social media site user ID, passwords, or data.
• CA, IL, MA, and MI all have laws barring employers from seeking social media passwords from applicants.
• NM and UT also just passed similar laws.
What should an employer do?
Employee Discipline v. Legal Constraints
Stop and Think, then….
o Investigation Is KeyoDecipher How Federal and State
Law Play Into the Equation
Methods to Minimize Risk
• Employers Should: Maintain regular oversight of your own network
Develop a clear Electronic Communications Policy - Get a signed acknowledgment of the policy
Set limits
Clarify expectations of privacy
Do not prohibit employees from discussing terms and conditions of employment
Employee Policy: What To Include?
Employees must abide by non-disclosure and confidentiality policies and agreements
Do not create blanket and broad social media policies against "disrespectful comments" or critical posts on social media.
Employees may not make defamatory or harassing comments when discussing the employer, co-workers, products, services, and/or competitors
Employee Policy: What To Include?
4 Tips For A Better Social Media PolicyGive Specific ExamplesImplement a Social Media Training
ProgramEmpower Employees to Become Brand
AmbassadorsTrust Employee Judgment
Employee Policy: What To Include?• No expectation of privacy when using company equipment
o The Company owns the rights to all data and files in any computer, network, or other information system used in the Company.
o The Company also reserves the right to monitor electronic mail messages (including personal/private/instant messaging systems) and their content, as well as any and all use by employees of the Internet and of computer equipment used to create, view, or access e-mail and Internet content.
o The Company uses software in its electronic information systems that allows monitoring by authorized personnel and that creates and stores copies of any messages, files, or other information that is entered into, received by, sent, or viewed on such systems. Accordingly, employees should assume that whatever they do, type, enter, send, receive, and view on Company electronic information systems is electronically stored and subject to inspection, monitoring, evaluation, and Company use at any time.
Employee Policy: What To Include?
Only individuals officially designated may speak on behalf of the Company
“Bloggers Beware” – Require a disclaimer:
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“The views expressed in this blog are my personal views and opinions and do not necessarily represent the views or opinions of my employer.”
Employee Policy: What To Include?
Direct: What is considered an “Acceptable Use” o Business use onlyo Limited personal useoUnlimited personal use
A reporting procedure for violations of the policy
EMPLOYERS SHOULD FOLLOW THE POLICY
FOLLOW THE POLICY CONSISTENTLY!!!!!
Social Media and the Rules of Evidence
Is it Discoverable?oEmotional Trauma and Harassment
Can it be Helpful?
Non-exclusive License PermissionPermission is granted under a non-exclusive license to copy and distribute this work to the Daniel ’s
Foundation for purposes of education and classroom instruction. Permission is specifically denied for commercial use, creation of derivatives, or otherwise for financial gain without specific written permission from the author. No other entity or organization is given permission to copy, distribute, make derivatives, display or otherwise use.
You are welcome to preprint any of my articles/presentations with the following conditions:1. Include all Copyright Notices and Cautions2. Articles/PowerPoints must be used in their entirety. Excerpts are acceptable pending permission.3. If you are using an article online, all the copyright notices must be included. 4. Email distribution of this article must be to an opt-in email list only. NO SPAM!Once you reprint or use an article/presentation, a courtesy copy of your publication or description of the use
would be appreciated:Willow Misty ParksPO Box 25312Albuquerque, NM [email protected]
Willow Misty Parks, Owner of the Business Bookshelf, LLC
©2014 The Business Bookshelf, LLC & Willow Misty Parks
Copyrights and all rights are reserved in aspects that are original and fixed by the author, and to compilation, organization and arrangement under the US Copyright Act, except where the copyrights are owned by another, are under GNU licenses, or do not have copyright as in Public Domain and Federal Government works. Some works may be used under the legal principle of Fair Use and the author makes no representations of ownership to works that are currently owned or protected under the Copyright Laws and therefore gives no consent to any further uses including but not limited to reproductions, display, distribution by any other parties. The author takes no responsibility and will not be liable for any unauthorized uses by others that may lead to violations of the Copyright Act.
