The Social Network: Employers and Social Media

On The Agenda

• Spencer Fane 2011 Survey Results

• The NLRB and You Make the Call
Questions We Get from Clients

• QR Codes and Microsoft Tags

• Social Media in Litigation

Spencer Fane Survey

In 2009, Spencer Fane started an
annual Social Media Survey. We
survey companies – primarily
human resources employees - on
their use of social media along with
its impact in their organizations.

Spencer Fane Social Media Survey

2009 2010 2011
90 • Do you personally
80 use LinkedIn,
70 Facebook, Twitter,
60 MySpace?
Percent

50
40
• Answers are % of
30 those who
20 responded yes.
10
0
LinkedIn Facebook Twitter

Organizations Tightening Use?

2009 2010 2011
70 Does your organization
60 permit employees to
50 access online social
Percent

40 media networks from a
30 company computer or
20 issued device?
10
0
YES

Organizations Tightening Use?

2009 2010 2011
50
Does your
45 organization
40
35
encourage
employees to access
Percent

30
25
online social media
20
15 networks from a
10 company computer
5
0 or issued device?
YES

Issues With Social Media

2009 2010 2011

60 Has your
50 organization
40 encountered an
Percent

30 issue involving an
20
employee’s use of
social media in the
10
workplace?
0
YES

Issues other than Excessive Use

2010 2011 If you encountered a
60 problem with an
50 employee and social
40 media in the workplace
Percent

30 was it for something
20 other than excessive
10 use?
0
Yes No I don't
know

Monitoring

Does your organization monitor internet
usage, keystrokes or bandwidth usage?

2010 2011

100
Percent

50

0
Internet Use Keystrokes Bandwith

Connecting on LinkedIn

Yes No I don't know
NEW FOR 2011!
Does your organization
25% permit employees
connect with customers
and clients through
52%
LinkedIn?
23%

“Friending” Between Direct Reports

70
NEW FOR 2011!
60
50
40
30
20
10
0

h
er
o

w
m

ot
tt

no
th
ro

B
or

ei
tf

k
ep

N

't
or

on
R

ep

Id
R

Does Your Organization Have A Social
Media Presence?
NEW FOR 2011!
Facebook Twitter Wikipedia
100
90
80
70
Percent

60
50
40
30
20
10
0
Yes

Does Your Organization Have A Social
Media Policy?
NEW FOR 2011!
Yes No I don't know
70

60

50
Percent

40

30

20

10

0

The Social Media Lawyers

Initiated in 2011 to provide a place where
employers can get quick questions to
workplace questions related to social
media in the workplace.

Social Media & Labor Laws
The National Labor Relations
Board has now begun taking
unfair labor practice charges
related to employers
disciplining employees for
their social media comments.

***Beware that this applies
even if you are non-union.****

Enforcement Power by the NLRB
• What remedies – if any – are available to
the NLRB if an employer violates one of
the rules?
– Backpay to a fired worker;
– Reinstatement;
– Court Injunctions;
– Ordering an Employer to Bargain with a
Union;
– One of the few agencies that has the ability
to investigate, rule, and seek enforcement.
18

You Make the Call #1

Five employees do not like their co-worker. They believe
the co-worker is a slacker and fakes illnesses to get out of
work. They post derogatory messages on her Facebook
page containing obscenities and openly expressing their
negative feelings toward her. The victim complains.
Following an investigation, the five employees are
discharged for harassment under the company’s zero
tolerance policy. Any problem with the discharges?


Most likely. Last week an administrative law judge of the
Board held that the five employees were engaging in
concerted protected activity for which they could not be
discharged. The judge held that the Facebook postings
were no different than “water cooler” talk and could not be
interfered with. He held that even though the
conversations were not directed to the employer, because
they involved terms and conditions of employment they
were protected. The judge ordered the employees
reinstated. An appeal to the Board is pending.


Employer is an ambulance service. Employer had a policy
prohibiting disparaging comments when discussing the
company or an employee’s superiors. An employee is
asked by a supervisor to prepare an incident report about a
customer complaint about the employee. The employee
asked for a union representative to be present during the
preparation of the report. She did not get the union rep.
Employee goes home and makes a negative post about
her supervisor on her personal Facebook page which drew
supportive comments from co-workers and further negative
comments about the supervisor. Employee is fired. Was it
permissible?


According to the NLRB, no. The policy prohibiting negative
comments was unlawful as likely to prohibit an employee
from engaging in lawful activity.
The NLRB further found that a discussion about an
employer’s refusal to comply with an employee’s
Weingarten right and discussing a supervisor on Facebook
was protected activity.
The termination was unlawful.


Employee is a reporter. His employer encourages him to
open a Twitter account and use twitter to get stories out.
Employee gets a twitter account. Employee’s twitter
biography mentions that the employee is a reporter and
names his employer. Employee sends out a tweet critical
of the newspaper’s copy editors. Employer questions the
employee and orders him not to air internal grievances or
comment about the paper publicly. Employee then posts
derogatory comments about homicides in the city and
tweets negatively about a tv station. Employer terminates
employee because of his repeated tweets damaging the
newspaper’s good will. Was the termination lawful?


According to the NLRB, yes. The reporters tweets were
not related to his wages, hours or working conditions. In
addition, he was not tweeting in order to involve others in
issues related to employer. Rather, he ignored his
employer’s warnings about inappropriate tweets.
The termination was lawful.

Employer is a restaurant with an unwritten policy that
waitresses don’t share tips with the bartenders even though
the bartenders help serve food. A bartender discussed the
issue with a co-worker who agreed that it “sucked.” Several
months later in Facebook posts, the bartender complained
to a relative that he was doing waitresses work without the
tips. He called the restaurant’s customers “rednecks” and
said he hoped that they choked on glass as they drove
home drunk. He didn’t discuss the posting with co-workers
and none of them responded. The owner sent a facebook
message to the employee telling him his services were no
longer needed. Was the termination lawful?


According to the NLRB, yes. Although the postings
concerned terms and conditions of work, the employee did
not discuss the posting with co-workers and none of them
responded to the posting. There were no employee
meetings or any attempt to initiate group action concerning
the policy.

Employer provides emergency and non-emergency
medical transportation and fire protection services.
Employee is a dispatcher. A Senator representing the
state in which the employer was located announced some
fire districts were getting federal grants. Employee posts
on the Senator’s “Facebook Wall” that her employer only
got its contracts because it was the cheapest in town, paid
less than the national average and only two trucks for an
entire county. She also posted that the company sent a
crew who was unable to perform CPR to respond to a
cardiac arrest call. Employer terminates the employee for
public posting of disparaging remarks and revealing
confidential information. Was the termination lawful?


According to the NLRB, yes. The employee did not discuss
her posting with any other employees, including her
husband who was an EMT. There were no employee
meetings regarding the posting. The employee also did not
use the postings as a way to complaint to management.
The employee admitted that she did not expect the Senator
to assist her employment situation.

Employer was a retail store operator. Employee was a
customer service employee. Employee posts on Facebook
critical comments about a new Assistant Manager.
Employee noted “tyranny” at the store and that the
Employer was going to get a wake up call when people
quit. Co-workers posted asking why he was “wound up.”
Employee respond by calling the Assistant Manager a
“super mega puta” and complained about discipline. One
co-worker posted a “hang in there” kind of comment. Store
Manager gave the employee a one-day suspension which
prohibited promotion for 12 months. Was the discipline
lawful?


According to the NLRB, yes. The postings were
expressions of an individual’s gripe. They expressed only
frustration with his individual dispute and did not contain
language suggesting group action. The termination was
lawful.

Questions

• How far can an employer go relative to
investigating an employee / former employee’s
social media?
• What if an employee leaves his or her Facebook
account open – can an employer access that
page?
• Can an employer demand that the employee
provide his or her password to their social media
page during employment?

The Total Package of Policies

• Use of Social Media Policy
• Use of Computers, E-Mail, & Internet
• Use of Cell Phones and Other
Electronic Devices (including while
driving)
• Prohibition of Electronic Recordings
• Ownership of Electronic Property and
Its Contents

Questions We Get From Clients

Can an employer prohibit
an employee from being
a Facebook friend with a
client?

Couldn’t an employee
argue they were friends
before work?

An employer generally has the right to provide policies
which govern the workplace. It is permissible for an
employer to have a specific policy which forbids employees
from “friending” clients. It might be virtually impossible to
enforce and might engender bad feelings from a client, but
an employer is generally free to do so. See the earlier
answer on off-duty conduct in the work place. As for the
friend argument, an employee certainly can make this
argument and, for that reason, employers need to consider
whether it is a good idea to have this restriction. Some
employees and clients might take offense and this could
present a practical problem. From a legal perspective, an
employee can make this argument but that does not
change the fact that an employer is generally free to
provide policies to govern the workplace.


Our company has a
Facebook page and
Twitter site. How would
you guide us regarding
postings or comments
by employees – even
on their own time?

This is interesting issue that many employers are likely facing, or at
least will face as more and more businesses embrace the marketing
power that social networking sites offer. We would suggest that 3
principles guide employers. First, employees generally have a duty
of loyalty to their employers. Employees should be reminded of this
duty and, in the best case scenario, be required to sign an
acknowledgement of this duty before being permitted to post
comments on social networking sites. Second, employers should
monitor their “pages” or accounts with social networking sites. A
policy means nothing unless it is enforced. As a result, employers
need to be prepared to take action to counsel or discipline
employees that disparage their employers on a social networking
site. Third, employers should seek counsel about whether
employee postings on behalf of the employer on a social networking
site might constitute compensable time worked, even if you believe
that such postings are voluntary and off duty. Wage and hour
issues are much more difficult than many might think and cannot be
overlooked.


If an applicant provides a link to their Facebook
page on their resume and the page contains their
views on litigation and politics, can we look at it
and use it?

If any applicant provides a link to a Facebook page, we
believe that there is a strong argument that the applicant
has invited the prospective employer to view the
site. Facebook may reveal a lot about a person,
including their judgment (or lack of judgment). However,
making an employment decision based on an
employee’s protected activities – such as filing a charge
of discrimination against an employer or pursuing a
discrimination lawsuit against an employer – can be a
violation of an applicant’s rights under federal and state
laws. Accordingly, if such information is discovered, it
should not be considered in the evaluation of the
applicant.

We have had trouble
getting previous
employees to change
their “title and company”
on LinkedIn, i.e., our old
CEO still lists himself as
a “current CEO.” Is
there anything we can
do to get them to
change it? LinkedIn
won’t change it.

There is very little you can do to convince a non-
employee to correct a dated (and now incorrect)
status. Many people believe that it is easier to
get a job if you are already employed as
opposed to being unemployed, so we expect
this type of problem will become more
common. Other than a letter to the former
employee requesting that they change the status
line, we see nothing that an employer can do to
force the change other than continuing to
contact LinkedIn.


Can an employer be liable for the harassing
Facebook posts of one employee toward another if
the posts are made off-duty and off-premises?

This represents a real quandary for employers. First,
assuming the employer is unaware of the posts, we do
not believe that an employer will generally be held liable
for the off-duty conduct of one employee against
another. Second, if the employee that is the subject of
the posts complains at the company about the posts, the
question would be whether or not the employer could
police off duty conduct if it wanted to. The employer may
be left with simply counseling the posting employee
about conduct in the workplace. If the posts become
criminal or threatening, the non-posting employee should
be encouraged to seek assistance with law enforcement.


Can you include the
language in a social
media policy that says “all
electronic media currently
in use today and any
other electronic media yet
to be developed” when
addressing what is and is
not acceptable in the
workplace?

Certainly, you can use that language, but
the question does suggest that the policy
isn't reviewed regularly. We recommend a
routine review of this policy at least
annually. It is not possible to keep ahead
of every development in this area.


What, if any recourse, does a
school district or university
have if students post lies about
teachers or administrators on
personal social media
accounts?

This question presents a very difficult situation that requires
attention to the specific facts. There has already been litigation over
such issues, where a student was suspended by a public school
after she created a Facebook page to criticize a teacher. In that
case, the court refused to dismiss the action and found that the
student had engaged in speech protected by the First Amendment in
creating the page outside of school. Significantly, there was no
evidence that the Facebook page and any items posted on the page
caused the school any sort of disruption. Given this case, school
districts should be very careful in addressing any comments or
information students post away from school. That said, if the posts
from a student are simply not true, and more than just expressions
of opinion, such posts may rise to the level of being
defamatory. Moreover, the posts may cause disruptions in
schools. In those circumstances, a school may be able to take
action to suspend or otherwise discipline a student. What a school
may do ultimately depends on the facts. Legal counsel is also likely
a good idea to evaluate a school’s options.


Regarding LinkedIn,
can a firm prevent a
former employee from
recommending
someone?

There is little that you can do to prevent a former
employee from recommending another former
employee or even a current employee either in
writing or on any social media site. If the former
employee's comments are false or misleading,
you can always notify the former employee of
your concerns, but other than that, there is little
you can do. Occasionally, a letter from your
counsel could encourage the former employee
not to make recommendations.

If an employer pays for the use of the internet but it
is the employees phone, can the employer ask
them not to use social networking?

An employer in these circumstances could very easily request that
an employee refrain from using their phone for social networking,
especially during normal work hours. An employer could also very
easily condition its payment of Internet or data services on a mobile
device on an employee’s agreement not to use the device for social
networking. However, there are at least 2 problems with this
restriction. First, it is unlikely that an employer can effectively
enforce or monitor this restriction. The employer does not have an
ownership interest in the device and likely does not have the
necessary access to monitor usage. Second, what constitutes
“social networking” is rapidly developing. While Facebook pretty
clearly falls within the definition, some might not think of certain
other online sites or sources as “social networking.” As a result, the
potential for misunderstandings with employees seems high. With
this in mind, in most states, it is likely permissible for an employer to
prohibit the use of data services for social networking applications
on a mobile device during normal work hours. It will be difficult, if
not impossible, to enforce, but it is likely permissible to have this
restriction.

QR Codes and Microsoft Tags

• Microsoft Tag: High
Capacity Color Barcode
(HCCB) is the name coined
by Microsoft for its
technology of encoding data
in a 2D “barcode” using
clusters of colored triangles
instead of the square pixels
traditionally associated with
2D barcodes

• A QR Code is a specific
matrix barcode (or two-
dimensional code),
readable by dedicated
QR barcode readers
and camera phones.
The code consists of
black modules arranged
in a square pattern on a
white background. The
information encoded
can be text, URL or
other data.


So, how could these
QR Codes and
Microsoft Tags be used
in the workplace?

All is not what it seems…

To: Jan (at home)
From: Dave
Date: March 1, 2011
Re: Dance Lessons tonight for Kara

Can you take her tonight?

All is Not What it Seems

The key guy at SmithCo is
Brad Johnson. Our rate
per box is $2.50. Our
supplier - Yan Systems of
Taiwan (Jerry Yee is the
contact) gets it to us for
$1.10 per box.

All is not what it seems…

To: Bill Hanrahan
From: Aaron Smithson
Date: March 1, 2011
Re: Just Over Heard Nancy Discussing
Oklahoma Exhibition

Had No Idea She was a fan.

All is not what it seems.
This is a Microsoft Code with a password connected to it.

Just Over Heard Nancy Discussing
Oklahoma Exhibition = johndoe

Just spoke to Alan. He’s having an
affair with Glenda in the copy
center. He’s getting her to provide
him copies of the executive reports
when she copies them. We’ll get
those before we resign

• While they can provide links to web
addresses, they can be used to provide
information to others.
• Does your social media policy or your
internal policies address the use of QR
codes or similar encrypting mechanisms?
• Could you tell if someone generated a QR
code with your pricing or client information
and then took a picture with their smart
phone?

Stored Communications Act

• Pietrylo v. Hillstone Restaurant Group,
2009 WL 3128420 (D.N.J. 9/25/2009)
– Employer violated the SCA when it used an
employee’s log-on information to access a
chat group on Myspace.com, even though the
employee had provided her log-on information
to her managers.

Stored Communications Act

• Pure Power Boot Camp v. Warrior Fitness
Boot Camp, 587 F. Supp. 2d 548
(S.D.N.Y. 2008)
– Employer violated the SCA and a former
employee’s privacy by accessing employee’s
personal e-mail accounts with username and
password stored on computer.

Expectation of Privacy

• Shefts v. Petrakis, 758 F.Supp.2d (C.D.Ill,
2010)
– Based on Employer’s policies, employee did
not have a reasonable expectations of privacy
in communications sent over employer’s
network.


• Thygeson v. U.S. Bancorp, 2004 WL
2066746 (D.Or. 9/14/2004)
– Based on the employer’s policies, the
employee did not have a reasonable
expectation of privacy in communications sent
over employer’s network.


• Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.
Penn. 1996)
– Employee did not have a reasonable
expectation of privacy in e-mails exchanged
with supervisor over company e-mail system
despite employer’s assurances that the
communications would be confidential and
privileged.


• Stengart v. Loving Care Agency, Inc., 990
A.2d 650 (N.J. 2010)
– Employee had a reasonable expectation of
privacy in e-mails exchanged with her
attorney via her personal Yahoo! Mail account
while using a company laptop, even though
employer’s written policy stated that the
company may access “all matters on the
company’s media systems and services at
any time.”


• In February, 2011,the Maryland Dept. of
Public Safety and Correctional Services –
following criticism from the American Civil
Liberties Union – suspended its practice of
asking applicants to provide social media
account usernames and passwords for
use in employee background checks.

Discovery of Social Media Content

• E.E.O.C. v. Simply Storage Management,
U.S. Dist. Court for S.D. Indiana (May 11,
2010). http://bit.ly/c58NxX
• In this case, the employer was sued for
sexual harassment by two employees.
• In discovery, the employer sought production
of photographs and videos as well as updates
and messages on their Facebook and
Myspace pages.


• The EEOC objected arguing based on
privacy and an attempt to embarrass the
plaintiffs.
• The employer countered that the EEOC
had placed the emotional health of the
woman at issue by claiming “medical
treatment” stemming from alleged
harassment and claiming depression from
post traumatic stress disorder.

• The court ruled:
– “It is reasonable to expect severe
emotional or mental injury to manifest itself
in some SNS content, and an examination
of that content might reveal whether onset
occurred, when, and the degree of distress.
Further, information that evidences other
stressors that could have produced the
alleged emotional distress is also relevant.”

• Crispin v. Christian Audigier, Inc., U.S. Dist.
Court for the Central District of California (May
26, 2010)
• http://scr.bi/a11m59
• Employer sought postings on Facebook,
MySpace and Media Temple.
• Court quashed a subpoena to the extent it
sought private e-mail messages through the
site as protected under the Stored
Communications Act.


• Barnes v. CUS Nashville, 3:09-cv00764, U.S.
Dist. Ct. M.D. of Tenn.
• Plaintiff claims she fell from a bar at a “Coyote
Ugly” saloon in Nashville. She argued that the
bar was wet and slick and when she tried to
climb onto the bar hit her head.
• Defendant subpoenaed Facebook for plaintiff's
Facebook information, including photos of
plaintiff and her friends dancing on the bar.


• Barnes v. CUS Nashville, 3:09-cv00764,
U.S. Dist. Ct. M.D. of Tenn.
• The Defendant subpoenaed the friends
of the Plaintiff for their pictures of the
Plaintiff on the bar.
• The Plaintiff moved to quash.

• The court ruled:
– “In order to try to expedite further discovery regarding
the photographs, their captions and comments, the
Magistrate Judge is willing to create a Facebook
account. If Julie Knudsen and Michael Vann will
accept the Magistrate Judge as a “friend” on
Facebook for the sole purpose of reviewing
photographs and related comments in camera, he will
promptly review and disseminate any relevant
information to the parties. The Magistrate Judge will
then close this Facebook account.”

Dave Kight
816-292-8303
dkight@spencerfane.com

The Social Network: Employers and Social Media

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Andere mochten auch

Andere mochten auch (17)

Ähnlich wie The Social Network: Employers and Social Media

Ähnlich wie The Social Network: Employers and Social Media (20)

Kürzlich hochgeladen

Kürzlich hochgeladen (20)

The Social Network: Employers and Social Media