Social media policies_powerpoint_for_labor_and_workforce_development_in_review

Best Practices for Drafting
Social Media Policies

February 1, 2012

Presented by
Christina A. Stoneburner, Esq.

Best Practices for Drafting Social Media Policies

© 2012 Fox Rothschild LLP

1

Growth of Social Networking

Linkedin: More than 135 million users

My Space: More than 150 million users

Twitter: More than 200 million active users

Facebook: More than 500 million users



2

What Should be Covered in Your
Social Media Policy?
 Hiring and recruiting practices
 Electronic systems usages policies
 Harassment of co-workers
 Disparagement of the Company and
Customers
 Confidentiality Agreements
 Who Owns the Social Media Account


3

Use of Social Networking Sites
During Recruiting and Interviewing
Perceived Benefits of Checking
Applicants’ Social Networking Sites:

Weed out undesirable applicants
Verify employment history and/or references
Obtain examples of applicant’s communication
skills, creativity, etc.



4

Risks of Checking Applicants’ Social
Networking Sites
 Mistaken identity
 Create exposure for violation of state
and federal discrimination claims
 Eliminate defenses to such claims
 May be considered a background
check



5

Recommendations If Want To Check
Applicants’ Social Networking Profiles

 Be consistent

 Make job offers conditional

 Make a record



6

Hazards/Liability Issues From Employee Posts:
Suits against employer and employee

 Trend toward finding employer liability if
employee accessed/sent information using
company computer, conduct was job-
related, and/or occurred during working
hours.

 Employers who block access to a particular
social networking site at work may be
avoiding liability in some instances.



7

Tort claims

 Defamation of the Company, other
employees, customers, etc.

 Harassment/discrimination claims

 Negligence against employer

 Infliction of emotional distress





8

Privacy torts

 Invasion of privacy
 False Light Publicity

 Public Disclosure Of Private Facts



9

Drafting an Effective and Enforceable
Social Media Policy: Goals
 Assess the benefits of social media, and
incorporate it into the policy
 Include reasonable restrictions designed to:
- prevent disclosure of confidential company information and
trade secrets,
- prevent legal claims against employee and employer,
- reinforce the organization’s other policies/codes of conduct,
- control productivity, and
- protect the image of company

 Assess how the policy will be enforced:
-
Actively vs. passively



10

Drafting an Enforceable Policy: State Laws

 Anti-discrimination Statutes

 Workers’ Compensation Anti-Retaliation Provisions

 State whistleblower laws, i.e. New Jersey Conscientious
Employee Protection Act.

 Off duty laws:

 NY Labor Law §201-d(1)(b) prohibits discrimination
against employees based on engaging in “legal
recreational” activities off work time.



11

Drafting an Enforceable Policy:
Federal Laws on Electronic Privacy

 Stored Communications Act
- Exception for “voluntary” disclosure

 Electronic Communications Privacy Act: applies to
interception of information as it is being transmitted, not stored information

 Computer Fraud and Abuse Act
- Applicable to federal computers and certain financial institutions or computer
affecting interstate commerce
- Makes it unlawful to access without authorization a protected computer
- Patriot Act and Identity Theft Enforcement Act increased penalties for violating
Act:
 10 years for first offense and 20 years for second offense
 Only general, not specific, intent to cause damage required



12

Drafting an Enforceable Policy:
Federal Laws
 Occupational Safety and Health Act
 Title VII, ADA, ADEA anti-retaliation
provisions
 Sarbanes Oxley (publicly-traded employers)
 National Labor Relations Act



13

Drafting a Social Media Policy:
Policy Considerations: the NLRA
This is an issue for unionized and non-unionized
employers.

Policies often:

 Prohibit Employees from disparaging the company, its
competitors or its employees

 Provide that violations can lead to disciplinary action

Caution Must Be Exercised Because of: Employee’s Section 7
rights under the NLRA



14

Drafting a Social Media Policy:
Policy Considerations: the NLRA
Section 7 protects the rights of non-unionized
employees to discuss working conditions

Section 7 provides that employees shall have the
right to:
 Self organize,
 Form, join or assist labor organizations,
 Bargain collectively;
 Engage in other concerted activities for collective
bargaining or other mutual aid or protection; and
 Refrain from any or all of the above



15

Recent NLRB Decisions
 Where Found to Be Unlawful
- Non-profit Discharges 5 Employees for
Facebook postings
 Employee posted on Facebook that there were
complaints of improper service filed by a co-
worker
 Employee requested other co-workers to help
give evidence to Executive Director that
complaints were not true
 Employer had terminated employees for cyber-
bullying other employee



16

NLRB Decisions (cont.)
- Ambulance service’s policy violated NLRA
 Employee was asked to write an incident report
concerning a customer complaint. Employee
was denied union representative.
 Employee posted on Facebook that supervisor
was “scumbag” and other employees joined in
 Challenged policy as being overbroad because it
prohibited photos of employees without company
permission and prohibited “rude” behavior
 Stressed that there was no language indicating it
was not meant to affect Section 7 activity



17

- Union violated Section 8(b)(1)(A) by posting
interrogation video on YouTube and
Facebook
 Union employees posed as inspectors and asked
employees about illegal workers
 Union employees demanded information about
legal status and requested to see proof
 Board held union had interfered with employee’s
performance of non-union work
 Threats to call immigration were unlawful
coercion



18

 Employers Policies Found to be Unlawful
- 2 Employers’ policies which prohibited
speaking badly about employer were too
broad
 One policy prohibited “embarrassment,
harassment, or defamation of the employer or
would damage good will.
 Another policy prohibited “inappropriate”
comments
 In both cases, focused on fact that terms could
include lawful union activity



19

- Supermarket chain’s policy found to be
overbroad
 Board found provision barring employees from
pressuring another employee to “friend” them ok
 Board took issue with policies that prohibited
disclosure of “personal information” of other
employees without their consent
 Board also took issue with policy regarding no
use of logos or photographs of store because
may prohibit picture of picketing activity



20

 Where Termination found to be Not
Unlawful
- Bar who terminated employee for
complaining about tipping policy
 Employee posted comments about work to a
relative complaining about tip policy and calling
customers “rednecks”
 Even though about a term or condition of
employment, not concerted activity
 No employee joined in on the comment and no
employee discussion about the tip policy



21

- Non-profit employee who made comments
about mentally disabled clients not protected
 Employee had conversation with friends about
working in mental institution
 Co-worker reported the incident to employer but
did not participate in conversation
 Found not to be concerted activity because did
not discuss issue with co-workers
 Did not address confidentiality concerns of
employer in disclosing patient information



22

 Employer’s Policy Restricting Contact with the
Media was lawful
- Grocery store chain prohibited employees from
responding to media inquiries and employees were
required to direct all inquiries to Public Affairs office
- Employees were also prohibited from taking pictures
in store or parking lot without permission
- Interpreted the policy on cameras to prevent news
cameras not individual cameras



23

Other Concerns:
Protection of Company Trade Secrets
and Proprietary Information
 Consider revising confidentiality
agreements and policies
 Address Non-compete agreements
 Who owns the social media account?
- PhoneDog v. Kravitz



24

Policy Drafting Checklist

 Assess if employees should get permission from
someone in the company before using these sites.

 Do not limit employees from talking about salaries
or terms of conditions of employment.

 No expectation of privacy.



25

Policy Drafting Checklist

 Tell employees what content is
prohibited

 Spell out consequences for violation
of policy



26

Contact Information

Christina A. Stoneburner, Esq.
973-994-7551
cstoneburner@foxrothschild.com



27

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