LEGAL PROBLEMS WITHSOCIAL MEDIA IN THE WORKPLACE
Presented by:Christine S. Keenan
Do You Have To AcceptThis Friend Request?
Social Media is here to stay
And
Ignoring it may put you at risk
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Social Media and Technology
Social Networking Sites Facebook, My Space, Instagram
Business Networking Sites LinkedIn
Online Media YouTube, NetFlix
Microblogs Twitter
Chat Rooms
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Social Media by the Numbers
Social media has overtaken porn as the number 1 activity on the web.
64% of workers admit to using the Internet for personal purposes during work hours
77% of workers who have a Facebook account use it during work hours
60% of online purchases are made during work hours
65% of YouTube viewers watch between 9 to 5
http://bitsandpieces.us/2011/01/20/hardly-working/
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Social Media by the Numbers
Why 8 hours of work is not enough
WorkersAdmit toWasting3 hours eachDay
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Social Media by the Numbers
Attitude toward social media content 15% said that if their employer did something
they did not agree with, they would comment about it online
27% said they do not consider the ethical consequences of posting comments, photos or videos online
37% said they rarely or never consider what their boss or colleagues would think
42% of corporate compliance officers have disciplined employees for activities on Facebook, Twitter or LinkedIn
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Password Protected Sites
If the employer does not have access or is prohibited from access to a particular site ….
PROCEED WITH CAUTION!!!
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Stored Communications Act
Prohibits access to electronically stored communications where access is not authorized
Prohibits an “authorized user” from exceeding their authority to access electronic communications
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Pietrylo v. Hillstone Restaurant Group Two employees created a MySpace page to air
grievances against their employer
The site was password protected and other employees were invited to join -- but not managers
Manager asked another employee to give her login ID and password
Creators were fired for damaging employee morale and for violating the restaurant's "core values"
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Pietrylo v. Hillstone Restaurant Group
Court upheld jury’s verdict finding employer liable for violations of the SCA
Central issue was that the manager coerced an employee into giving him her password information to access the MySpace page
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Konop v. Hawaiian Airlines, Inc.
Pilot maintained a website with critical commentary about the airline’s management practices. In order to access it, one needed a username.
A VP obtained access to the site using two employees’ user names, with their permission
But …. one of the employees had never actually accessed the site
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Konop v. Hawaiian Airlines, Inc.
Court found that the VP was liable because the employee was not a “user” even though he had been given the ability to access the website
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Recent Legislation
Louisiana just passed the Personal Online Account Privacy Protection Act – effective August 1
Employers cannot request or require employees or job applicants to disclose any username or password that allows access to personal online accounts
Applies to education institutions and students as well
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Personal Online Account Privacy Protection Act
You can require information to access an employer provided device or account
You can still require employees to cooperate in internal investigations, i.e. showing you personal content (still can’t require username)
Nothing prohibits voluntary self-disclosing (so long as it is not in response to an employer request)
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Lessons
Do NOT force or ask employees for their login or password information
Do NOT attempt to seek access to pages or profiles that are blocked, marked private, or by invitation only that you do not have permission or access to
Only act on information voluntarily given to you or information available to general public
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Invasion of Privacy
Employees may post sensitive or
confidential information online, resulting in potential liability for the employer
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Yath v. Fairview Clinics, N. P.
Clinic employee read an acquaintance’s medical file and learned that she had an STD
Employee told another employee, and the information somehow ended up on a MySpace page
Dismissed patient’s invasion of privacy claim because the clinic had blocked MySpace during work hours and, therefore, the page could not have been created during work hours
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Palleschi v. Cassano
Fire Department employee took a picture with his phone of a computer screen of a 911 call
Photo included callers name, address and phone number and reason for her call
Employee was terminated and termination was upheld
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Lessons from Yath
Create strict policies forbidding posting of patient or customer information on social network sites
Educate employees on such policies and the threat of invasion of privacy litigation
Block employees’ access to social network sites while at work
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Employment Discrimination
Employers are prohibited from taking Adverse Employment Actions Firing Failure to Hire Failure to Promote
“Because of” someone’s protected status
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What Are The Protected Classes?
Race Color Religion Age (40 and over) Sex (including pregnancy) National Origin Citizen Status Veteran Status Physical or Mental Disability Sickle Cell Anemia Protected Genetic Information Any other basis prohibited by law
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Discrimination Issues
Learning from social network site that applicant or employee is part of a protected class Ex: Applicant’s profile picture shows that he is African
American
Learning medical or genetic information about an employee or applicant
Evaluating information found on these sites in a different way for different applicants▪ Ex: Disregarding a picture on a male applicant’s profile
of him drinking, while using it as a basis not to hire a female applicant
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Disparate Treatment Issues
An employer cannot treat similarly-situated employees differently: Only considering applicants with a social
network profile Checking social networking sites for some
applicants/employees but not all Using leisure activities as a basis for
decision-making
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Guardian Civic League v. Philadelphia Police Dep’t.
Philadelphia Police Department allowed white police officers to operate Domelights.com, a racist website
The officers allegedly posted racially offensive comments while on duty and off duty
The Police Department managers were alleged to have ignored complaints about the website
Case settled for $152,000 plus injunctive relief
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Hostile Work Environment or Harassment
Employee posts, statuses, pictures, or tweets about another employee
Employee posts or comments on other employees’ “Walls,” pictures, statuses, tweets, etc.
Harassing messages or chats during the workday
Harassing groups or pages about an employee
Comments or posts on a company-sponsored Facebook or Twitter page
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Amira Jabbar v. Travel Servs.
Plaintiff brought hostile work environment claim because of another employee’s racial comments on a Facebook picture
Court found there was no evidence that the company condoned the use of Facebook and that employer had attempted to block access to Facebook during work hours
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Urban v. Capital Fitness
Supervisor maintained a MySpace account showing the corporate label, had pictures of employees in seductive poses, and exchanged inappropriate MySpace messages with other female employees
There was no evidence that any of the women on the supervisor’s site were offended or unwilling to be featured on the site
“However inappropriate it may be…the site was something that an employee had to go out of his or her way to view, and not pervasive in the workplace environment.”
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Summa v. Hofstra University
A member of the football team had made various Facebook postings on another’s page making fun of the employee and her boyfriend
The court found there was no connection between the postings and the plaintiff’s employment.
The court also took note of the fact that there was no evidence that the Facebook page was viewed or posted in the workplace
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Retaliation
Employers cannot take a materially adverse employment action against an employee
Because the employee complained about or took advantage of the protections afforded under certain laws.
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Protected Activity
EEOC Charges Union Activities OSHA FLSA FMLA ERISA Bankruptcy Worker’s Compensation Jury Duty Whistleblower Any other basis prohibited by law
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Protected Activity?
Employee complaints on Facebook pages or Tweets about harassment or discrimination may be considered protected activity
Morse v. JP Morgan Chase & Co.: Employee’s Facebook post about her wages and overtime on her Facebook page were not not considered a complaint for purposes of a retaliation claim when employee was just “blowing off steam.”
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Acts of Retaliation?
Supervisor comments on social networking sites may be deemed retaliation
Ex: Bar worker in Pittsburgh filed an EEOC Charge alleging sexual harassment. A week later, the employee found threatening comments on the tavern owner’s Facebook page that she alleged were aimed at her in retaliation for filing charge.
Supervisors “unfriending” an employee after the employee engaged in protected activity may lead to claims of retaliation
Employee complaints on Facebook pages or Tweets about harassment or discrimination may be considered protected activity
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First Amendment and Public Employees
Facebook comments can be protected Are they on a matter of public concern? Is the employee acting as a private
individual on a private matter?
Is there a legitimate government interest that outweighs the right?
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Shepherd v. McGee
Child Protective caseworker made disparaging remarks about clients on Facebook (complaining that they were on public assistance and had expensive cars and flat screen TVs)
She identified her job and her employer
Facebook posts were forwarded to HR who conducted an investigation and determined that her status as a neutral appraiser had been compromised
Court upheld termination based on legitimate state need
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Mattingly v. Milligan
Newly elected county clerk fired some employees who supported his opposition
Plaintiff posted on Facebook, “my heart goes out to the ladies in my office that were told by letter they were no longer needed … It’s sad.”
New clerk got lots of criticism as a result of Facebook post so he terminated the employee
Court said the message was a matter of public concern and termination was unlawful
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Bland v. Roberts
Several employees of sheriff’s office “liked” the challenger candidate
Employees were not re-appointed to their position after the election
Court said that “liking” a candidate for local election is protected speech – it’s like a sign in the yard …
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Duke v. Hamill
Deputy Police Chief posted a Confederate flag image on Facebook and wrote, “It’s time for the second revolution” shortly after 2012 presidential election.
He took the post down after one hour. Facebook was limited to friends and family. He did not identify his employer. But, post made it to the news media and the media
identified him as a police officer of the university. Employer, Clayton State University, demoted him.
Court upheld the termination on the basis that the police department had an interest in maintaining good working relationship with the public
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Duke v. Hamill
Employer, Clayton State University, demoted him.
Court upheld the termination on the basis that the police department had an interest in maintaining good working relationship with the public
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In the Matter of the Tenure Hearing of Jennifer O’Brien
First grade teacher posted a comment on Facebook in which she stated, “I’m not a teacher – I’m a warden for future criminals.”
Protests by parents ensued …
School fired the teacher for the comment
Court upheld the termination as the comments were not protected speech
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Wage and Hour
Employer must compensate employees for all time spent for the employer’s benefit
May include blogging or posting if it is work-related
Chao v. Gotham Registry - liable for overtime even though unauthorized and against company policy because same type of work as during regular hours
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Wage and Hour
In 2011, the DOL introduced the "DOL-Timesheet" app.
The app “is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer.
It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek."
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Not to Be Outdone…
OSHA has an application that “combines heat index data from the U.S. National Oceanic and Atmospheric Administration with the user’s location to determine when outdoor workers should take protective measures.”
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National Labor Relations Act
Gives all employees (including those NOT represented by a union)
certain rights to engage in concerted activities
for the purpose of collective bargaining or other mutual aid.
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National Labor Relations Act
Employees seeking to improve the terms and conditions of employment through blogging or social networking activity may be protected
Employee conduct disparaging, criticizing, or critiquing an employer or its business can be protected activity, so long as the remarks bear a nexus to employee interests or working conditions and are not egregious in nature .
Extremely disparaging remarks are not protected.
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National Labor Relations Act
Konop v. Hawaiian Airlines, Inc. An employee’s blogging about his
company’s management and president may constitute “concerted activity” and trigger federal labor law provisions
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AMR of Conneticut
Complaint alleged that the ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her FaceBook page
The complaint also alleged that the company maintained and enforced an overly broad blogging and internet posting policy
▪ The company’s policy prohibited employees from making disparaging remarks when discussing the company or supervisors with another and also prohibited employees from depicting the company in any way over the internet without company permission
Case settled
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Build.com
The NLRB brought a charge against Build.com
Employee, who was not represented by a union, was allegedly terminated in retaliation for posting comments about her employer on FaceBook, which drew more negative comments from her “friends”
The parties settled shortly after the claim was brought
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NLRB Memorandum In January 2012, NLRB General Counsel
issued a memorandum regarding social media sites:
Some case studies found violations of the NLRA, some not
Is “liking” a comment protected activity?▪ Yes, where the posting furthered discussions that begun at work▪ Sparked a collective dialogue that elicited a response . . . over
important terms and conditions of employment
Board has upheld policies with specific examples of inappropriate postings
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Triple Play Sports Bar and Grille
Employer terminated employee who posted complaints regarding employer’s withholding of taxes
ALJ found concerted activity because one employee hit “Like”
Conduct was protected even though employee called supervisor an “A****”
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Karl Knauz Motors, Inc. and Robert Becker
Employee terminated for making disparaging comments about a competitor
ALJ said it was not concerted activity
He also made disparaging comments about a company picnic, but ALJ made no finding about these posts
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Hispanics United of Buffalo, Inc.
Employee criticized the performance of her co-workers and indicated an intent to raise her concerns with manager
One of the criticized co-workers made a post on Facebook responding to the criticism and inviting others to respond
Four other employees responded and the dispute escalated
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Hispanics United of Buffalo, Inc.
Employer fired the five employees who were commenting on Facebook
NLRB found that the terminations were unlawful because the employees were engaging in concerted activity
Court found the employees were preparing to defend their performance
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Trade Secrets and Financial InformationDissemination of Confidential
Information Trade secret or proprietary information▪ Posting of information about new products, customer lists,
inventions, employee pay information, etc.▪ Leaking marketing/pricing strategies or battlefield plans
Securities law violations▪ Unlawful release of information in advance of an initial
public offering▪ Material misstatements could result in Rule 10b-5 violations
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Dynamic Sports Nutrition, Inc. v. Roberts
▪ Former employee posted formulas of DSNI’s nutritional supplements, costs of manufacture, and labeling costs of the supplements
▪ Court granted employer’s motion for a preliminary injunction, finding irreparable harm to DSNI
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Defamation
Consider Neutral Reference Policies – are you violating them on LinkedIn?
Twitter, Facebook, etc.
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Fair Credit Reporting Act
Searching social networks for information during a background check could violate the FCRA if job seekers are not informed that you will conduct such a search This requirement applies only to third-party
agencies If the recruiter or hiring manager, or other
internal representative, conducts the background check, the employer is not required to notify the job seeker
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Recordkeeping
Title VII requires covered employers to maintain all records associated with employment decisions for a period of one year.
If you use social network information during the hiring process, maintain the records of such use.
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Employee Risks
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Employee Messes
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Judicial Risks
In the Casey Anthony murder trial, a potential juror was dismissed during the selection, or voir dire phase, after reportedly posting the jury instructions on his Facebook page.
This juror also allegedly joked online: "book coming soon. lol."
http://blog.lawinfo.com/2011/05/18/facebook-affects-casey-anthony-trial-jury-pool/
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Judicial Risks
Galveston County Judge granted a lawyer a one-week continuance because of a death in the attorney’s family.
The lawyer’s partner asked the judge to extend the continuance to one-month.
Judge denied the request: “I knew from her bragging on Facebook that she had been partying that same week.”
M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).www.abajournal.com (July 31, 2009)
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Judicial Risks
Galveston County Judge read that attorney posted on Facebook “Bond reduction. Joy.” – anticipating a favorable ruling bond ruling in a criminal case.
Judge posted, “Joy postponed.”
M. ROZEN, Social Networks Help Judges Do Their Duty, Tex Lawyer (Aug. 25, 2009).www.abajournal.com July 31, 2009
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Now That I Am Friends With Social Media, Do We Have to Hang Out?
Social media offers many benefits but also many risks, and its relationship with your company should be based on the specific needs of the organization
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Beneficial Uses:
79% of employees use social media at work for business reasons
47% of employers use social networking sites to look at candidate profiles.
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Recruiting and Marketing Benefits
Inexpensive and efficient method for gathering information about applicants and employees
Tool to advertise employment opportunities, recruit, and connect with existing and potential customers and employees
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Hiring and Recruiting: Background Searches
Bankruptcy
Criminal Records
Credit Reports
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But Don’t Do This:
Only check social media sites for some applicants and not others
Evaluating information differently for each applicant
Considering leisure activities
Looking for and considering protected status
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Best Practices for Hiring and Recruiting
Have a policy for social networking background checks ▪ Determine whether you will use social media
screening in the hiring process▪ Outline what you are looking for when
accessing the sites▪ Apply consistently
Limit screening to a few well-trained individuals
Have non-decision maker conduct search and filter information
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Best Practices for Hiring and Recruiting
Do not consider illegal criteria Be upfront ▪ Do not ask job applicants for passwords or
other login credentials▪ Do not try to gain access to a candidate’s
profile indirectly▪ Do not send a Facebook friend request to the
candidate without disclosing the real reason for the request
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OMG, I think I Am Facebook Stalking? :) Monitoring Your Employees
Business decision each employer must make
Benefits and risks
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What Your Peers Are Doing…
77.7% of major U.S. companies check employee e-mail, internet, phone calls, computer files, or videotape them at work
63% of companies monitor internet activity
47% store and review employee e-mail
Almost 30% monitor social media use
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Monitoring Employee Productivity
Monitoring Usage—CONSISTENCY!
Blocking Sites
Prohibiting Smart Phones
Disciplinary Actions
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Possible Considerations and Checklist Prohibit/permit/encourage use of company resources
to access social media If prohibit – how to monitor If permit – limitations
Reserve employer discretion to monitor employee activity
Clearly state prohibited conduct disclosure of trade secrets, trademark, copyright or other
confidential, proprietary non-public information. use of company equipment to disseminate any electronic
communication that defames, threatens, or harasses Provide the policy is not intended or to interfere with
activity protected by the NLRA
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Possible Considerations and Checklist
Clearly indicate that violations of the policy may subject the employee to immediate disciplinary action, including termination
Clearly indicate that equipment and electronic systems are the property of the company and there is no right of privacy with respect to any electronic communication sent using company systems, and that the company may at any time for any reason monitor electronic communications
Warn employees they may be held legally responsible for the content of such communications if it violates the law
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With These Tools in Place…
As a general rule, employers may read most employee workplace communications.
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Litigation Considerations
E-Discovery Lawyers have caught on to the craze and
learned that a wealth of information exists in social media
Discovery requests are now specifically aimed at social network sites
Requests for documents reflecting public statements could include Twitter tweets, postings on Facebook, and blogs
Spoliation issues
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In Review: Implement a written policy regarding social
communications/networking
Do not ask employee for login/password information or to show you his/her or another employee’s profile/page
Only act on information that is voluntarily given to you, publicly available, or that you are able to see through your own or company profile
Keep records of all social network research used during the hiring and firing processes
Update anti-harassment and client/patient privacy policies to include violations for conduct on social network sites
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Recommendations
Block or restrict employee access to social networking sites during the working hours
Standardize the process for evaluating employee and applicant profiles on social networking sites
Irrelevant information or information pertaining to an employee or applicant’s protected status should be screened and filtered before it reaches the decision maker
Apply anti-social networking and other conduct policies equally
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Recommendations
Encourage supervisors to not friend subordinates
Educate employees on company policies and dangers associated with social networking sites
Train employees on policies
Remind employees that LinkedIn recommendations can violate neutral reference policy