Social Media in the Workplace

Presented By:Stephanie Schoolcraft

Fishel Downey Albrecht & Riepenhoff LLP (FDAR) is a mid-sized Columbus, Ohio, based law firm with a statewide practice. FDAR represents hundreds of clients, with facilities in nearly three-fourths of Ohio’s 88 counties, as well as out-of-state and international clients with an Ohio presence.

Our Team

For employers, social media can be management’s greatest friend or foe depending on how it is used and what it is used for.

● In the hiring process it can be used to vet out applicants.

● During investigations it can be used to gather critical evidence.

Introduction

For employees, things you share can be used by Companies when they decide whether to hire, discipline, and/or terminate your employment.

Introduction

Social Media Policies

Employers are permitted to restrict their employee’s social media use both on- and off-duty.

However, an employer’s ability to restrict social media use depends on when the employee is accessing social media, what the employee is saying, and how they are accessing social media.

Regulating Employee Social Media Use

On the Employer’s Devices.

● Employers may entirely prohibit an employee’s personal use of employer-owned devices. This includes restricting access to social media sites like Facebook, Instagram, and Twitter as well as personal email sites.

On the Employee’s Devices.

● Employers may entirely prohibit employees from using their personal devices- including cell phones- during working hours.

On-Duty Use

On-Duty Use

On the Employer’s Devices.

● Employer’s may prohibit the off-duty use of their devices for personal use, however, employer’s may not prohibit employees from using employer-owned devices to communicate with one about working conditions.

Off-Duty Use

On the Employee’s Devices.

● Employers may restrict employee’s speech regarding management or coworkers, confidential information, or using the employer’s logo.

● Employers may not restrict non-management employees from friending or following one another to discuss working conditions.

Off-Duty Use

The following can be regulated, on or off -duty:

● Making disparaging/false comments about the Company or its vendors, clients, or products/services;

On or Off-Duty Use

The following can be regulated, on or off -duty:

● Advertising or selling Company products without prior approval;○ Chances are good you are not an Instagram influencer

● Representing the Company has authorized you to speak or approved your message even though you do not have prior written authorization

On or Off-Duty Use

The following can be regulated, on or off -duty:

● Disclosing confidential information, including intellectual property, proprietary information, attorney-client privileged information, and financial information… just to name a few

On or Off-Duty Use

The following can be regulated, on or off -duty:

● Recording/taking pictures in non-public areas of the Company

● Recording/taking pictures of, or posting about, co-workers if those posts/pictures/videos are libelous, proprietary, harassing, bullying, discriminatory, retaliatory, create a hostile work environment, or impact the operations of the Company.

On or Off-Duty Use

The following can be regulated, on or off -duty:

● Posts that violate the Company’s discrimination and harassment policies, or are threatening or obscene.

On or Off-Duty Use

The following can be regulated, on or off -duty:

● Prohibiting managers from “friending” their subordinate employees on social media

On or Off-Duty Use

● Remember that policy manual you “read” when you got hired?

● The MOST important thing is to review what your Company’s policy says before posting online

What does your policy say?

Employee Fired for Sharing Meme

● First Amendment Privacy Concerns

● Fourth Amendment Privacy Concerns

Common Claims and Defenses made with Social Media Evidence

● “Concerted Activity”

● Discrimination

● Defamation/ Libel Claims

Common Claims and Defenses made with Social Media Evidence

● Breach of Confidentiality

● FMLA or Workers Comp Abuse

● Termination in Violation of Public Policy

Common Claims and Defenses made with Social Media Evidence

A federal appeals court recently held President Trump cannot block his critics on social media.

“[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

Social Media in the Law

There are two main times employers use social media:

1. During hiring○ Attracting applicants,○ Accessing public profiles to confirm application information, and○ Conducting internet searches.

Employers and Social Media

Social Media in Hiring

There are two main times employers use social media:

2. During investigations

○ Conducting investigations into employee misconduct, including leave abuse, misuse of company time, and inappropriate comments

Employers and Social Media

Social Media in Investigations

Employers may not use fraudulent or improper techniques to access employee social media information.

○ Example: using an employee’s private login to access their account.

Employers and Social Media

Employers should not request access to “invitation only” or private pages to gather information to make an employment decision.

○ Example: creating a fake profile to request access to an employee’s private account.

Employers and Social Media

Not all information discovered can be lawf ully considered.

○ Example: employee’s protected class status.

Employers and Social Media

“Cancel Culture” or “Call-Out Culture” refers to a boycott or public shaming of an individual who has shared a questionable, unpopular, or intolerant opinion or has exhibited behavior that is perceived to be offensive or problematic.

“Cancel culture” can arise in the employment context when an employee says or does something the general public does not perceive favorably, causing negative media attention, and usually resulting in discipline or termination.

“Cancel Culture”

● Brandon Taubman, former assistant general manager of the Houston Astros fired for making inappropriate comments directed at female reporters.

● Shannon Phillips, former regional manager for Starbucks, was fired last year after calling the police to remove two black men from her store who had not made purchases.

● William Latson, former Principal for Spanish River Community High School, was terminated after an email exchanged leaked where he could not say whether the holocaust was a “factual, historical event.”

“Cancel Culture” Examples

If you are a supervisor, consider:

1. False identities: Common names can lead to an employer vetting the wrong person’s social media pages.

2. Inaccurate information: There is no guarantee that information on the applicant’s social media pages is accurate. Additionally, many people portray their lives different from reality.

To avoid these issues, allow the applicant or employee to explain the evidence uncovered.

Social Media Cautions

If you are an employee, consider:

● Anything you post on social media can be used as evidence in litigation;

● Do I really want to be social media friends with my co-workers/clients/vendors;

Social Media Cautions

If you are an employee, consider:

● If I am friends with co-workers, periodically review past posts and edit for inappropriate content;

● Think before you post- even if you are not friends with all co-workers, or even your manager, if someone takes a screenshot and shares it with management, you can still be disciplined.

Social Media Cautions

If you are an employee, consider:

● Do I have adequate privacy settings?

Social Media Cautions

IF YOU HAVE ANY QUESTIONS,

PLEASE ASK!

Stephanie Schoolcraft

7775 Walton Parkway, Suite 200

New Albany, Ohio 43054

PH: 614-221-1216www.fisheldowney.com

Thank You!