1. BEYOND THE WATER COOLER
The Impact of “Socializing” and Managing Social Media in the Workplace
Silvia King, FGP International
Mark Bakker, Wyche P.A.
August 26, 2014
7. SHRM 2012 SURVEY RESULTS: SOCIAL MEDIA IN BUSINESS STRATEGY AND OPERATIONS
40% of companies who responded had a SM policy
www.shrm.org/research | twitter@SHRM_Research
Of those companies with a policy, 33% indicated taking disciplinary action for violation of the policy
8. Overall, the majority of companies reported that HR is responsible for creating and enforcing these policies
www.shrm.org/research | twitter@SHRM_Research
Majority of companies use SM for internal communication and information sharing
55% of companies planned to increase their SM usage over the next 12 months
10. How can you restrict social media at work so that productivity is not impacted and so that the employer has some control?
How do you address personal devices at work?
How can you protect valuable contacts through social media from being taken by your employees when they leave?
When is it acceptable to fire for inappropriate pictures or comments that don’t align with company values?
What do you do if you find out that your employees have a secret blog specifically created for complaining?
What are the legal implications of using social media in hiring decisions?
Basic Questions Mark Bakker?
17. SOCIAL MEDIA – HIRING BEST PRACTICES
SM after interview
Tool in toolkit
Don’t pass on questionable info to decision maker
Establish policy and guidelines
Conduct training on hiring best practices
SHRM “Use Social Media Smartly When Hiring” Steve Bates 3/19/13
18. SOCIAL MEDIA – HIRING (LEGAL IMPLICATIONS)
•Risks
False identity/inaccurate info
Impermissible subject matter
•Limit Risks
Third party vendors
Separate cyber-vetters from decision makers
19. SOCIAL MEDIA – ACCESS TO PASSWORDS
•Accessing passwords – with permission
•Banned in 12 states
•Not recommended
Fair Game: unsecured, publicly available social media
•Accessing passwords – no authorization
•Trapp v. DHS
•resorting to self-help could expose an employer to civil and possible criminal liability
23. CASE STUDY #3
Employees of non-profit assisted victims of domestic violence
One posts Facebook comment: “Lydia Cruz, a coworker feels that we don’t help our clients enough. I about had it! My fellow coworkers how do u feel”
Four off-duty employees respond and object to assertion by Cruz
Cruz complains to supervisor about being bullied on-line
All five employees terminated for “bullying and harassment” of Cruz
27. NATIONAL LABOR RELATIONS ACT
Covers most private-sector employees
“Section 7” rights:
guarantees employees the right to “engage in” “concerted” and “protected” activities with other employees
Protected activities include:
Discussing wages, discipline, unions
Complaining about policies, supervisors
Complaining about terms/conditions of employment
NLRB counsel: not “new” but “catch up”
28. SOCIAL NETWORKING POLICIES (NLRB)
Activity may be protected if
Done on employee’s time and equipment
Related to terms/conditions of employment or exercise of NLRA rights
Involves “concerted” activity
Swearing/name calling may not justify termination
Overbroad policies will be scrutinized
29. NLRB ON SOCIAL MEDIA POLICIES
Examples of prohibitions/policies NLRB says can be “overbroad”
Inappropriate Discussions
Gossip
Defamation
Disparagement
Privacy
Confidentiality
Restricted Use of Company Name, Address & Logo
30. DRAFTING YOUR SOCIAL MEDIA POLICY
You CAN prohibit social media postings that:
Make comments about coworkers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, or harassing
That constitutes illegal discrimination or harassment
Carry out illegal conduct
Are maliciously untrue
Specific examples are key
Disclaim that not interfering with NLRA rights
CLARITY FROM NLRB CASES
31. Bring Your Own Device Policy (BYOD)
Benefits
Employees carry single device
Convenience/practical response to technology
Reduce costs of devices to employer
Risks
Security concerns
Potentially higher IT costs
Disaster for discovery in litigation
Erosion of personal/business spheres
32. BYOD EMPLOYMENT LAW ISSUES
Personal Privacy protections
Computer Fraud and Abuse Act
Stored Communications Act
Wage & Hour considerations
Harassment/hostile work environment
Security of confidential information
33. BYOD POLICY
Broad Authorization to:
Monitor use and content
Wipe data upon termination/lost device
Turn over devices for investigations
Diminished expectation of privacy
Obligation to notify if lost/stolen
Require data encryption/password protection
35. SOCIAL MEDIA – OWNERSHIP
Who gets the friends when the employment relationship breaks up?
36. BEST COMPANY PRACTICES TO PROTECT SOCIAL MEDIA
Company establishes Account (name and content)
Structural protection
Adopt uniform branding, content and style guides
Assign employees to administer SM accounts
Anticipate separation of employment
Reference SM in restrictive covenants
Have manager also keep account/password information
Take quick action upon separation of employment
37. MOST IMPORTANT: HAVE A POLICY
Written agreement/policy that clarifies rights and duties
Blogs, accounts are company property
Employee must transfer all account information upon termination
Administering SM is part of employee’s job
Remember NLRB admonitions: Write policies in pencil rather than in pen
38. SOCIAL NETWORKS AND RESTRICTIVE COVENANTS
Nonsolicit of employees
Nonsolicit of customers
Cases not well developed
39. AMWAY GLOBAL V. WOODWARD (E.D. MICH 2010)
Former Employee Maintained and operated blog
Blog formed basis of violation of nonsolicit provision
“If you knew what I knew, you would do what I do”
Employee: blogs passive and untargeted
Court disagreed:
“Common sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation.”
40. ANALYSIS
Connection (itself) unlikely to be considered violation.
Would same message conveyed by email or letter be violation?
Two critical factors:
Who received the message?
What is the message?
FAMILIAR FRAMEWORK
41. TAKEAWAYS
Use Social Media as a tool
Review your policies regularly
Be careful with discipline (NLRB)
Be flexible –legal context evolving!
42. BEYOND THE WATER COOLER
The Impact of “Socializing” and Managing Social Media in the Workplace
Silvia King, FGP International
Mark Bakker, Wyche P.A.
August 26, 2014
