social media in the workplace: emerging issuesa123.g.akamai.net/7/123/121311/abc123/yorkmedia... ·...
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PLI Social Media 2015: Addressing Corporate Risks
Social Media in the Workplace:
Emerging Issues
February 2015 Presented By
Christine Lyon
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Why Do Employers Care About Personal Social
Media Activity?
• Vetting of job applicants
• Preventing leakage of confidential information
• Investigating potential misconduct
• Protecting and enhancing the company’s brand and
reputation
3
When Can Employers Access Personal
Accounts?
Restrictions under federal and state laws and common law:
• Stored Communication Act
• Computer Fraud and Abuse Act
• State social media laws
• Common-law privacy theories
And similar restrictions in accessing content on personally-owned
devices (BYOD)
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State Social Media Laws
• Increasing trend by state legislators to limit ability of employers to
access personal social media
• 16+ states with some legislation in place
• 28+ with legislation pending
• Laws generally restrict employers’ ability to ask employees to:
• provide the employee’s user name or password to social media accounts
• “friend” a supervisor or employer representative
• inspect the personal social media in the employee’s presence
• change his or her privacy settings on social media
• Some (but not all) of these laws provide limited exceptions for
workplace misconduct investigations—exceptions often very narrow
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Social Media in Recruitment
• Purchasing background reports about candidates’ social media
activity?
• Remember the Fair Credit Reporting Act and state consumer
reporting laws
• FTC: online services that create reports based on publicly-
available social media may be subject to FCRA
• Reasonable expectation of privacy analysis
• Consider having social media checks performed by trained HR
personnel not involved in hiring decision
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When Can Employers Take Action Based on
Personal Social Media Activity?
• Even if an employer lawfully reviews an employee’s
personal social media content, the employer’s ability to
use that information may be limited by:
• Federal and state anti-discrimination laws
• Labor and employment laws protecting off-duty conduct
• Also restrictions on an employer’s ability to exercise
control over employee’s personal social media activity
• Social media policies cannot infringe on legally protected speech
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Social Media May Reveal More Than You Want
to Know
• Social media may reveal information the employer cannot lawfully
consider in making employment decisions, such as:
health conditions or disability
race, religion, ethnic origin
union membership or political beliefs
sexual orientation
• Risks associated with social media use in recruitment:
Exposure to discrimination claims
Inability to take action based on information in background check
Reputational/brand damage in workplace and marketplace
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EEOC Public Meeting on Social Media and
Employment Discrimination
• In March 2014, the Equal Employment Opportunity Commission
conducted a public meeting (described as a “listening session”) on
employment discrimination risks related to social media
• Concerns were expressed about:
• Risks of unlawful discrimination based on information gleaned from
social media
• Potential disparate impact based on age or other protected
classifications, including if the hiring process favors people active on
social media
• Postings creating a hostile work environment, even if the postings are
after hours
• May signal increased scrutiny by EEOC
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National Labor Relations Act and Social
Media
• The NLRA protects employees’ rights to engage in “concerted
activities”
• Activities by employees united in pursuit of a common goal
• Applies equally to non-union employees and where no collective bargaining
activity is at issue
• National Labor Relations Board (NLRB) social media cases
• Cases challenging disciplinary action based on social media postings
• Cases challenging overly restrictive social media policies
• Fact-specific inquiry with few clear-cut rules
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Case Study: Hooters of Ontario Mills
• “Hooters Girl” fired after altercation with co-worker who allegedly
rigged the company bikini contest
• What does this have to do with social media?
• Nothing, really—except it opened door to scrutiny of employer social media policy
• Examples of provisions found unlawful:
• “Information published on your social networking sites should comply with the
company’s confidentiality and disclosure of proprietary information….”
• “Be respectful to the Company, other employees, customers, partners, and
competitors. Refrain from posting offensive language or pictures that can be
viewed by co-workers and clients. Refrain from posting negative comments about
Hooters or co-workers. In all cases, NEVER publish any information regarding a
co-worker or customer.”
• Moral of the story? Expect that any NLRA charge may trigger
scrutiny of your social media policy
• And remember, this was a non-unionized workplace
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Case Study: Triple Play Sports Bar & Grille
• Another NLRB charge against a non-unionized employer
• Restaurant employees terminated for participating in negative
comments on Facebook about employer messing up their tax
withholdings
• One employee fired for clicking “Like” to post saying that someone should do the
owners a favor and buy the place because they couldn’t even do the tax
paperwork properly
• Another employee fired for adding a comment that the accounting guy was an
“a**hole”
• Employer ordered to reinstate both employees and make them whole
for any loss of earnings and benefits
• Case also triggered review of employer’s social media policies,
finding various provisions unlawful
• Example: prohibiting employees from “engaging in inappropriate discussions
about the company, management, and/or coworkers”
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What Standards Can Employers Impose for
Personal Social Media Activity?
• Restrictions arise under the National Labor Relations Act—even for
non-unionized employers
• Federal and state laws protect certain types of lawful off-duty conduct
• Political activity
• Religious belief and activity
• Whistleblowing
• Other “lawful” off-duty conduct, in some states
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• The NLRB looks for overly broad provisions, particularly those
concerning:
• Confidential information
• Negative or disparaging comments about the company
• External communications, including contact with media
• The key issue is whether the provision may reasonably chill or deter
protected concerted activity
Common NLRB Challenges to Social Media
Policies
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NLRA: Confidentiality Provisions
NLRA issues
• Overly broad definitions of “confidential information” may chill
discussion of wages and working conditions
Recent examples of challenged provisions
• Prohibiting “disclosure of confidential information, including
Company, customer information and employee information
maintained in confidential personnel files” (Lily Transportation)
• “Information published on your social networking sites should
comply with the company’s confidentiality and disclosure of
proprietary information policies”—when these policies were found
impermissibly broad (Hooters of Ontario Mills)
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NLRA: Nondisparagement Provisions
NLRA issues (courtesy and civility rules)
• Restrictions on disparaging or inflammatory comments may chill
protected speech
Recent examples of challenged provisions
• Prohibition on “engaging in inappropriate discussions about the
company, management, and/or coworkers” (Triple D)
• “Refrain from posting negative comments about Hooters or co-
workers” (Hooters of Ontario Mills)
• “While online, do not engage in behavior that would be
inappropriate at work and that will reflect a negative or inaccurate
depiction of our company” (Kroger)
• Prohibition on “using personal computers in any manner that may
adversely affect company business interests or reputation”
(Professional Electrical Contractors)
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NLRA: Use of Company’s Name or Logo
NLRA issues
• May chill discussion of employer’s labor practices, working
conditions
• Existing NLRB authority recognizes employees’ rights to use
employer’s name and logo in protected activity
Recent example of challenged provision
• “[Y]ou must not use without permission or compromise in any way
the Company’s intellectual property assets…including, for example,
[employer] banner [or] logos” (Kroger)
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NLRA: Contact with Media
NLRA issues
• May chill public protest of wages, working conditions
• Pre-authorization requirement may have chilling effect as well
Recent examples of challenged provisions
• “Employees shall not discuss the Company’s business or legal
affairs with anyone outside of the Company. Information
concerning claims or lawsuits brought by the Company or against
the Company shall be treated as confidential. Employees shall not
discuss matters related in any way to litigation or claims.” (Hooters
of Ontario Mills)
• Employees “must follow the chain of command by reporting [any
complaint] to [list of supervisors] (in the order indicated)…” (U.S.
Security Associates)
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Requiring Disclaimers
• Employers encourage transparency in employee postings about
company products and services
• The FTC Guides Concerning Use of Endorsements and Testimonials require
disclosure of material connections between endorser and company (e.g.,
employment):
Sec. 255.5 Disclosure of Material Connections: “When there exists a
connection between endorser and seller of the advertised product which
might materially affect the weight or credibility of endorsement (i.e.,
connection is not reasonably expected by audience) such connection must be
fully disclosed.”
• However, NLRB has challenged broad disclaimer requirements
• Example of provision found unlawful:
• “If you identify yourself as an associate of the Company and publish any
work-related information online, you must use this disclaimer….” (Kroger)
• Issue involves the scope of the disclaimer requirement
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Ownership of Social Media Accounts
• Important unresolved issues about when employer or employee owns
individualized social media accounts used on employer’s behalf
• Best practices:
• Address ownership and rights to such accounts in a written agreement
• Employer should set up account, control passwords and access, and determine
the nature of the content
• Include the company name in the Twitter handle or account name, not just the
employee’s name
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What Standards Can Employers Impose for
Internal Social Media Platforms?
• Important new change in NLRB’s stance
• Prior standard under Register Guard: employer could prohibit all non-
work of company email systems
• New standard under Purple Communications: employees may have the
right to use an employer’s email system to engage in concerted activity
• May extend to other company-provided communications
systems…stay tuned
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Best Practices for Employee Social Media
Limit the inspection or use of personal social media in hiring or
employment decisions
Train HR and internal audit to understand legal restrictions on use of
personal social media in investigations
Develop social media guidelines for employees
Train employees about appropriate use of social media
Consult HR before taking action based on personal social media
activity